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JOHN C. APOSTOL et al. v. ANNE ARUNDEL COUNTY, MARYLAND etal. 
No. 156, September Term, 1979
 
Court of Appeals of Maryland
 
288 Md. 667; 421 A.2d 582; 1980 Md. LEXIS 227

 October  27, 1980, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Filed November 20, 1980; Denied December 1, 1980.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Hopper and Goudy, JJ., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County vacated, and case remanded to that court with directions to dismiss the bill of complaint. Costs to be paid by the plaintiffs.

CORE TERMS:  refund, statutory remedy, fiscal, mistake of law, judicial review, property tax, residents, declaratory judgment action, alternate, declaratory judgment, common law, class action, taxes paid, tax rate, municipality, ordinance, cause of action, declaratory decree, personal property, remedy provided, county tax, differential, attacked, administrative remedies, exhausting, invalidly, supplant, pendency, pursuing, disputed

COUNSEL: M. Peter Moser, with whom were James S. Jacobs and Frank, Bernstein, Conaway & Goldman and Richard G. Anderson and Richard T. Wright on the brief, for appellants.

   Harry D. Shapiro, with whom were George C. Doub, Jr., Kenneth R. Hoffman and Venable, Baetjer & Howard and Richard Lazer Hillman, County Solicitor, and Frederick C. Sussman, Assistant County Solicitor, on the brief, for appellees.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole and Davidson, JJ., and Richard P. Gilbert, Chief Judge of the Court of Special Appeals, specially assigned.  Eldridge, J., delivered the opinion of the Court.

OPINIONBY: ELDRIDGE

OPINION: [*669] [**583] Maryland Code (1957, 1975 Repl. Vol., 1979 Cum. Supp.), Art. 81, § 32A (a), authorizes a county to tax property, located within a municipal corporation in the county, at less than the general county property tax rate if the municipality performs government services or programs. Section 12G-8 of Art. 81 prohibits Anne Arundel and Howard Counties from imposing "taxes upon residents of any[***4] incorporated municipality for services which that municipality provides for its residents." The City of Annapolis is an incorporated municipality located in Anne Arundel County. Annapolis provides certain government services for its residents which are similar to services provided by Anne Arundel County in areas outside of the City, thereby saving the County from the necessity of supplying these services within the City.  Consequently, pursuant to §§ 12G-8 and 32A (a) of Art. 81, Anne Arundel County imposes a lesser county tax rate on property located within Annapolis than the rate for the rest of the County.  However, there has been an ongoing dispute between many residents of Annapolis and the County, with those city residents claiming that the tax rate differential each year should be greater.  The present case is a chapter in that dispute, involving a challenge by several Annapolis taxpayers to the fiscal 1979 county property taxes imposed upon them.

   On or about June 1, 1978, the levy bill, setting the Anne Arundel County 1979 property tax rates, was enacted by the County.  The ordinance established a county tax rate for the City of Annapolis of $1.74 per $100.00 of assessed [***5]valuation, a rate $0.41 lower than that enacted for the areas of Anne Arundel County lying outside of Annapolis.  About a month before the final enactment of the ordinance, the present action was commenced by the filing of a bill of complaint in the Circuit Court for Anne Arundel County.  The plaintiffs are thirteen Annapolis residents who own property in Annapolis which is subject to Anne Arundel County property taxes.  The suit was brought "as a class action on behalf [**584] of all taxpayers who are subject to property taxes of Anne Arundel County for fiscal year 1979 on real or personal property [*670] having its situs in the City of Annapolis." n1 The defendants are Anne Arundel County, the County Executive of Anne Arundel County and the members of the County Council of Anne Arundel County, with the individual defendants being sued "in their official capacities and not individually."

n1 Although not mentioned in the bill of complaint, six of the thirteen named plaintiffs are the Mayor and Aldermen of Annapolis.  The other seven named plaintiffs apparently are not city officials.  At any rate, the action was clearly brought by the plaintiffs in their capacities as individual taxpayers. The City of Annapolis is not a party to the action.

[***6]

   As the suit was brought shortly before the fiscal 1979 tax rate was finalized, the $0.41 tax rate differential was not specifically attacked in the bill of complaint.  Instead, the plaintiffs alleged that, unless restrained, the defendants "will undertake" to set the fiscal 1979 tax rates in a manner violating Art. 81, § 12G-8, of the Maryland Code.  With regard to relief, the plaintiffs first sought certification as a class action on behalf of all taxpayers required to pay Anne Arundel County taxes on property within Annapolis.  They next sought a declaratory decree that § 12G-8 required that Anne Arundel County taxes be computed according to a specified accounting methodology.  The plaintiffs also requested that the defendants be enjoined from determining the 1979 tax rate other than in accordance with the declaratory decree. Finally, the plaintiffs asked that the court order refunds of any 1979 property taxes which might be paid pursuant to an illegal levy.

   The defendants, on May 9, 1978, filed a demurrer, asserting that the allegations in the bill of complaint demonstrated that there was no justiciable controversy between the parties because the County had not yet adopted[***7] any tax rates for fiscal 1979.  Alternatively, the defendants contended that if a justiciable controversy did exist, Art. 81, §§ 214, 214C and 229, of the Maryland Code provided the exclusive administrative and judicial review remedy. On June 26, 1978, the circuit court overruled the demurrer.  The court held that, because the ordinance establishing the county tax rates for property both within Annapolis and outside of Annapolis had been finally enacted on June 1, [*671]1978, "the matter is not now prospective." The circuit court further held that the remedy provided by Art. 81, §§ 214, 214C and 229, is not exclusive and does not preclude a declaratory judgment action. Thereafter, the plaintiffs paid their fiscal 1979 property taxes in accordance with the challenged rates set forth in the ordinance enacted on June 1, 1978.

   Following a trial, the circuit court, on June 9, 1979, issued a declaratory decree. The court declared that the method used by Anne Arundel County to compute the property tax rate differential for fiscal 1979 would be "improper" if § 12G-8 of Art. 81 "were constitutional and could be given effect." However, the court went on to declare that the plaintiffs[***8] are not entitled to relief because § 12G-8 is unconstitutional, violating Art. 15 of the Maryland Declaration of Rights. n2 In light of its conclusion that the plaintiffs had no right to relief under § 12G-8, the court stated that it need not decide whether the plaintiffs were entitled to bring the suit as a class action. Finally, the court dismissed the claims for injunctive relief and for ordering refunds of the taxes paid. The plaintiffs took an appeal to the Court of Special Appeals, and, before any proceedings in the Court of Special Appeals, this Court granted the plaintiffs' [**585] petition and the defendants' cross-petition for a writ of certiorari.

n2 Article 15 provides in pertinent part as follows:
 
"[T]hat the General Assembly shall, by uniform rules, provide for the separate assessment, classification and sub-classification of land, improvements on land and personal property, as it may deem proper; and all taxes thereafter provided to be levied by the State for the support of the general State Government, and by the Counties and by the City of Baltimore for their respective purposes, shall be uniform within each class or sub-class of land, improvements on land and personal property which the respective taxing powers may have directed to be subjected to the tax levy; . . ."

[***9]

    The arguments in this Court have encompassed the gamut of issues involved in this case, such as whether the statutory remedy contained in Art. 81, §§ 214, 214C and 229, was the plaintiffs' exclusive remedy, whether the County's method for determining the property tax rates for fiscal 1979 violated Art. 81, § 12G-8, whether the County has standing to challenge the constitutionality of § 12G-8, whether the [*672] circuit court could properly consider the constitutionality of § 12G-8 on its own motion, whether § 12G-8 is constitutional, whether the action should have been certified as a class action, and whether the plaintiffs are entitled to tax refunds for fiscal 1979. However, because we agree with Anne Arundel County's argument on the first issue, namely that the special statutory remedy set forth in Art. 81, §§ 214, 214C and 229, was the only remedy available to the plaintiffs, and that the present action could not be maintained after the plaintiffs paid the taxes demanded by the County, we shall not consider any of the other issues discussed by the parties.  Resolution of those issues must await a proper proceeding.

   It is firmly established in this State that once a[***10] taxpayer voluntarily pays a tax or other governmental charge, under a mistake of law or under what he regards as an illegal imposition, no common law action lies for the recovery of the tax absent a special statutory provision sanctioning a refund. This is true even if payment is made under protest.  Moreover, in these circumstances, no common law or declaratory judgment action lies to challenge the validity of a tax so paid.  Where there is a special statutory provision sanctioning a refund, although no particular statutory remedy is provided, an action in assumpsit is available.  However, where there is statutory authorization for a refund and a special statutory remedy set forth, that remedy is exclusive.  These principles have recently been reviewed at length in Baltimore County v. Xerox Corp., 286 Md. 220, 406 A.2d 917 (1979); White v. Prince George's Co., 282 Md. 641, 650-654, 387 A.2d 260 (1978); and Rapley v. Montgomery County, 261 Md. 98, 274 A.2d 124 (1971).

   Furthermore, the rule that no action lies to challenge the validity of a tax paid under a mistake of law, except for any refund sanction specifically provided by the Legislature, has been applied consistently[***11] by this Court, regardless of the nature of the legal attack mounted or the type of mistake of law claimed.  See, e.g., White v. Prince George's Co., supra, 282 Md. at 646, 654 (tax claimed to be unconstitutionally retroactive); Rapley v. Montgomery County, supra, 261 Md. [*673] at 110 (tax claimed to be arbitrary and discriminatory, violative of the Maryland Constitution, and invalidly adopted); Wasena Housing Corp. v. Levay, 188 Md. 383, 392, 52 A.2d 903 (1947) (tax attacked on the ground that the procedure used to assess property was improper); Red Star Line v. Baughman, 153 Md. 607, 611, 139 A. 291 (1927) (license fees claimed to be unconstitutional under the Commerce Clause); Helser v. State, 128 Md. 228, 231, 97 A. 539 (1916) (inheritance tax claimed to be invalid because of the situs of the mortgage involved); Baltimore v. Harvey, 118 Md. 275, 84 A. 487 (1912) (mistake as to the applicability of certain tax rates to particular real property); Mayor, &c., of Baltimore v. Hussey, 67 Md. 112, 9 A. 19 (1887) (personal property tax attacked on ground that it was invalidly applied to a nonresident); Lester v. Mayor and City Council of Baltimore, [***12]29 Md. 415 (1868) (tax payment made under assessment subsequently declared invalid); Morris v. Mayor & C.C. of Balt., 5 Gill. 244, 248 (1847) (tax assumed by Court to be unauthorized and invalid); M. & C.C. of Balt. v. Lefferman, 4 Gill. 425 (1846) (governmental charge imposed under unconstitutional statute).  The cases make it clear that actions to challenge taxes paid under mistakes of law "are matters of grace with the Legislature." Wasena Housing Corp. v. Levay, supra, 188 Md. at 389.

   If there had been no statutory provisions specifically dealing with refunds of county property taxes paid under a mistake [**586] of law, the plaintiffs may have been able to maintain an action for declaratory and injunctive relief from June 1, 1978, until the time when they paid the challenged taxes. Nevertheless, it is clear that the payment of the taxes during the pendency of the court proceedings terminated their right to continue.  See Little v. Bowers, 134 U.S. 547, 556, 10 S. Ct. 620, 33 L. Ed. 1016 (1890) (payment of disputed taxes after the trial and during the pendency of appellate proceedings held to "extinguish" the cause of action); San Mateo County v. Southern [***13] Pac. R.R. Co., 116 U.S. 138, 142, 6 S. Ct. 317, 29 L. Ed. 589 (1885) (because of the payment of taxes after the commencement of suit, "there is no longer an existing cause of action").

   [*674] The existence of the special statutory administrative and judicial review remedy for the refund of county property taxes paid under a mistake of law, contained in Art. 81, §§ 214, 214C and 229, does not help the plaintiffs' position in the present litigation. n3 Before the taxes were paid, the existence of the statutory remedy may have given rise to an issue of whether the Legislature intended to allow an action for injunctive and declaratory relief or whether it intended that the special statutory remedy supplant such action and be exclusive.  See the discussions in White v. Prince George's Co., supra, 282 Md. at 649-650; Md.-Nat'l Cap. P. & P. v. Wash. Nat'l Arena, 282 Md. 588, 595-599, 386 A.2d 1216 (1978); State Dep't of A. & Tax. v. Clark, 281 Md. 385, 401, 380 A.2d 28 (1977). However, after the disputed taxes were paid, no issue concerning any possible legislative intent to supplant an existing common law or declaratory judgment remedy could arise.  No such alternate[***14] common law or declaratory judgment remedy existed.  The only remedy was that provided by Art. 81, §§ 214, 214C and 229.  White v. Prince George's Co., supra.

n3 Under § 214, a person claiming to have paid more ordinary county taxes than properly and legally chargeable may file a written application for a refund. Section 214 goes on to set forth administrative procedures for dealing with such applications.  Section 214C provides for appeals to the Maryland Tax Court "from the final determination of the refunding authority." Section 229 provides for judicial review of the Tax Court's decision.

   The plaintiff taxpayers argue that because their suit "is an attack upon the validity of an enactment as a whole," i.e., upon the validity of the County's ordinance establishing the fiscal 1979 property tax rates, "clearly the controversy falls within the 'constitutional exception' to exhausting administrative remedies." (Appellants' brief, p. 54.) Principal reliance is placed upon Harbor Island Marina v. [***15]  Calvert Co., 286 Md. 303, 407 A.2d 738 (1979); Md.-Nat'l Cap. P. & P. v. Wash. Nat'l Arena, supra, 282 Md. at 598-604; State Dep't of A. & Tax. v. Clark, supra, 281 Md. at 403-405; Md.-Nat'l Cap. P. & P. v. Rockville, 269 Md. 240, 305 A.2d 122 (1973); Poe v. Baltimore City, 241 Md. 303, 308, 216 A.2d 707 (1966). However, none of those cases involved or discussed the situation presented here, namely [*675] a challenge to government taxes or charges after all of the plaintiffs had paid the demanded taxes or charges.  Moreover, those cases were not concerned with a situation where the only relief available is the special administrative and judicial review remedy provided by statute.  As explained in White v. Prince George's Co., supra, issues such as whether primary jurisdiction is in an administrative agency, whether a statutory administrative remedy must be exhausted, and whether the case falls within an "exception" to the usual requirement of pursuing and exhausting administrative remedies, can only arise where there exists a legally cognizable alternate remedy.  We stated in White (282 Md. at 650-651):

   "However, there is a fundamental difference[***16] between the present case and the cases where a particular remedy provided by statute was not treated as exclusive.  In those 'exceptional' cases, a recognized alternate remedy under either common law principles or under some other statute had been invoked.  For example, in Pressman v. State Tax Commission, supra, the Court held that the plaintiffs [**587] were entitled to bring a declaratory judgment action as an alternative to the special remedy provided by the tax code.  In other types of cases, a bill in equity could be brought as an alternative to the statutory remedy. See the review of such cases in Poe v. Baltimore City, supra, 241 Md. at 308-315. In other words, the question of whether the Legislature intended a particular statutory remedy to be exclusive only arises where the claimant is pursuing a possible alternate remedy.  Where the type of action which the plaintiff is attempting to bring as an alternative to the special statutory remedy simply does not lie, logically no question of exclusiveness arises.  In such a situation, it does not matter if the special statutory remedy is deemed inadequate or if some other exception to the general rule is present. [***17]If the only remedy presently available to a plaintiff is the special statutory remedy, [*676] that remedy obviously must be followed.  And with respect to the instant case, it is firmly established in Maryland that a common law action will not lie to recover taxes erroneously paid under a mistake of law."

   In White v. Prince George's Co., supra, as in the instant case, the taxpayers were challenging the validity of a tax.  It was claimed in White that the county ordinance setting the tax, and the state statute authorizing it at a particular rate, were unconstitutional.  It was also claimed that the administrative refund remedy was inadequate. n4 Nevertheless, because the plaintiffs had paid the challenged tax, we held that the administrative and judicial review remedy for refunds, set forth in Art. 81 of the Code, was the only remedy available and precluded a direct action in the circuit court.  The holding in White is dispositive here. n5

n4 In this connection, it is noteworthy that when taxpayers later pursued the statutory administrative and judicial review remedy, the tax involved in White was invalidated.  Washington Nat'l Arena v. Pr. Geo's Co., 287 Md. 38, 410 A.2d 1060, cert. denied, U.S., 101 S. Ct. 106, 66 L. Ed. 2d 40 (1980).

[***18] 

 n5 In their reply brief, the plaintiffs also rely upon Mont. Co. Bd. of Realtors v. Mont. Co., 287 Md. 101, 411 A.2d 97 (1980), and Garrett County v. Bolden, 287 Md. 440, 413 A.2d 190 (1980). However, these cases do not support the plaintiffs' position.  First, in neither case was any issue raised concerning the type of action brought.  Second, in neither case had all of the plaintiffs paid the challenged tax.  The record in the Mont. Co. Bd. of Realtors case discloses that the Board of Realtors, one of the plaintiffs and property owners, had not paid the tax.  In Bolden, none of the plaintiffs had paid the tax.  Rather, Bolden was an action to enjoin the collection of the allegedly illegal portion of the tax.

   Because the payment of the tax extinguished the plaintiffs' cause of action, the circuit court's denial of affirmative relief was correct.  The decree, however, also included a declaration of rights concerning the constitutional and statutory construction issues relating to Art. 81, § 12G-8.  As the plaintiffs were not entitled to maintain a declaratory judgment action[***19] after the payment of the tax, this is one of those rare cases where the declaratory judgment action should have been dismissed without a declaration of rights.  See Mauzy v. Hornbeck, 285 Md. 84, 90-91, [*677] 400 A.2d 1091 (1979); Shapiro v. County Comm., 219 Md. 298, 302-303, 149 A.2d 396 (1959).

   Judgment of the Circuit Court for Anne Arundel County vacated, and case remanded to that court with directions to dismiss the bill of complaint.

   Costs to be paid by the plaintiffs. 

ELZA L. KEESLING v. STATE OF MARYLAND 
No. 92, September Term, 1979
 
Court of Appeals of Maryland
 
288 Md. 579; 420 A.2d 261; 1980 Md. LEXIS 222; 19 A.L.R.4th923

 October  2, 1980, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Wray, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed and remanded to that court with instructions to reverse the summary judgment entered in the Circuit Court for Anne Arundel County and remand to that court for further proceedings; appellee to pay the costs.

CORE TERMS:  police officer, roadblock, summary judgment, motor vehicle, block, political subdivision, apprehending, suspected, commandeering, common law, directing, apprehension, chase, commandeered, police officers, police car, commandeer, felon, arrest, entitled to judgment, violation of law, genuine, proximately, cooperate, passenger, unmarked, posse comitatus, public highway, summon, deputy

COUNSEL: Weldon Leroy Maddox for appellant.

   Glenn W. Bell, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Cole, J., delivered the opinion of the Court.  Murphy, C. J., and Rodowsky, J., concur in part and dissent in part.  Smith, J., dissents.  Rodowsky, J., filed an opinion concurring in part and dissenting in part at page 592 infra, in which Murphy, C. J., joins.  Smith, J., filed a dissenting opinion at page 593 infra.

OPINIONBY: COLE

OPINION: [*580] [**261] We shall decide in this case whether the Court of Special Appeals erred when it affirmed the Circuit Court for Anne Arundel County which granted the State's motion for summary judgment on the ground that the appellant had failed to allege a violation of Maryland Code (1957, 1970 Repl. Vol.), [**262] Art. 66 1/2, § 9-102, n1 which provided, [***4] under certain circumstances, for damages to a citizen who is injured as a consequence of the police having commandeered his motor vehicle to apprehend suspected criminals.

n1 The statute is presently codified at Maryland Code (1977), §§ 19-101 and 19-102 of the Transportation Article.

   The events which gave rise to this high speed chase on the Maryland highways occurred on August 1, 1972.  Officers Todd and Lacson of the Friendship Airport Police Department received a call that a man and woman were attempting to depart from the Friendship International Hotel without [*581] paying their bill. The officers proceeded to investigate the call and, after receiving a description of the suspects, intercepted Richard Dale and Laura Gray walking toward the airport.  The officers stopped the suspects and began to talk to them about the hotel incident.  At this point Dale brandished a gun and ordered Lacson to unlock the rear door which he did.  Dale disarmed the officers, got into the police car and ordered the officers[***5] to drive them to Washington, D.C.  The officers attempted to persuade Dale that he should return to the hotel but Dale refused, informing the officers that he was in "bad trouble" because he had just shot a man at the hotel.  Lacson then convinced Dale that they needed gas to make the trip and pulled into a gas station.  At this time a report was received over the police car radio regarding the shooting and requesting the officers to respond.  Lacson convinced Dale that he should answer and advised the dispatcher that he was unable to respond and that he was enroute to Washington, D.C.  In the process, he was able to depress the button on the microphone, thereby enabling continued transmission of the conversation occurring within the police car.

   The officers and their captors then proceeded along the Baltimore-Washington Parkway toward Washington.  Again Officer Lacson attempted to dissuade the suspects from continuing and stated that the parkway would be covered with police vehicles from various jurisdictions.  The affidavits of Officers Todd and Lacson, as well as other papers in the court file, suggest that Dale ordered Officer Lacson to stop a blue Rambler which was proceeding[***6] in front of the police car, that the idea to stop the Rambler was solely that of Dale, and that Officer Lacson tried to persuade Dale not to follow through with this plan. 

   In stark contrast, Laura Gray, in her affidavit, maintains that the idea to stop the citizen's auto was suggested by the officers.  According to her, the officers said: "It's foolish to try to get away in a marked police car. It'll draw too much attention.  You should be in an unmarked car."

   Officer Lacson in his affidavit admitted that he utilized [*582] his beacon light and siren to stop the vehicle.  He further stated:

   The vehicle pulled over and I pulled in behind him.  I asked him if I could approach the vehicle before he did so the man would not panic and he agreed to this but followed me.  I went up to the vehicle and explained to the gentleman what was going to happen.  I then asked the subject not to hurt the man.  He said "alright, get the hell out of here . . . ."
 
Dale and Gray entered the vehicle and ordered Elza Keesling, the plaintiff in this case, to drive.  Officer Lacson got into a State police vehicle which had come onto the scene and Officer Todd got back into his own vehicle. [***7] A prolonged chase ensued involving police cars and helicopters from several jurisdictions.  After avoiding two roadblocks, the Keesling vehicle was finally boxed in by a third moving roadblock and brought to a halt.  During the chase, Dale had threatened to shoot the plaintiff; however, when his capture was imminent, he shot himself instead.  Keesling claims to have suffered serious and permanent injuries as a result of the incident.

   Keesling sued the State of Maryland alleging a violation of Maryland Code (1957, 1970 Repl. Vol.), Art. 66 1/2, § 9-102 (a), (b), and (c).  The Circuit Court for Anne Arundel County granted the State's motion for [**263] summary judgment, from which judgment an appeal was taken to the Court of Special Appeals.  That court affirmed, concluding that, even considering the facts in a light most favorable to the appellant, no violation of § 9-102 had occurred. This Court granted certiorari.

   Appellant contends that summary judgment should not have been granted.  He maintains that, accepting the Gray affidavit as true, a jury would be entitled to conclude that the police were negligent under subsection (b) in suggesting that the suspects commandeer[***8] an unmarked car, thereby bringing about a situation where danger and violence to the plaintiff were highly foreseeable. Appellant also asserts that [*583] as a result of police conduct, his car became a device in a roadblock, with resulting injuries compensable under subsections (a) and (c).

   The State contends that it was not the police who commandeered plaintiff's vehicle, but the suspects.  It also maintains that the Keesling vehicle was not directed to participate in a roadblock, but was instead the subject of a roadblock. The State also raises two other issues.  It asserts that the trial court should have granted appellee's motion for summary judgment on the basis of sovereign immunity and on the basis of Md. Rule 541c.

   Summary judgment is proper only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Md. Rule 610.  Here there is a dispute as to the facts.  The affidavits and other matters conflict as to whether the idea to commandeer the Keesling vehicle was solely that of the suspects or whether it originated with the police.  The existence of a dispute over a question of fact alone, however, will[***9] not preclude summary judgment. The disputed fact takes on significance when it is material to the outcome of the case.  The Court of Special Appeals concluded that even accepting the facts in a light most favorable to the appellant, the fact was not material because no violation of § 9-102 had occurred.  We disagree.

   At the time of the occurrence, Maryland Code (1957, 1970 Repl. Vol.), Art. 66 1/2, § 9-102 provided:
 
 (a) Commandeering vehicle and directing participation in road block prohibited. -- No police officer of this State, or of any political subdivision of this State, while acting within the scope of his authority in the enforcement of any law of the State or of the particular political subdivision, shall direct or order any operator, owner, or passenger of any motor vehicle within the limits of this State to assist him by commandeering the vehicle and directing the operator, owner, or passenger to participate in a road block in the apprehension of [*584] any person suspected of having committed or known to have committed a violation of law.
 
(b) Damages or injuries from negligence of police officer.  -- If any police officer of this State, or[***10] of any political subdivision of the State, while acting within the scope of his authority in the enforcement of any law of this State or of the particular political subdivision, directs the operator of any motor vehicle (other than a police vehicle) within the limits of this State to assist him in the enforcement of the law or in apprehending any person suspected of having or known to have committed a violation thereof, the State or the political subdivision, as the case may be, shall be liable for damages or injuries proximately caused by the negligence of the police officer; provided, however, that the defenses of contributory negligence and "last clear chance" shall be available to the State or political subdivision. For purposes of this section, the Baltimore City police shall be considered police officers of Baltimore City, and the term "police officer" shall be deemed to include all persons charged with law enforcement.  The fiscal officers of the State or political subdivision, as the case may be, shall forthwith or as soon as possible pay all just claims made or judgments entered pursuant to this section from funds within their control and available for that purpose.
 
[***11] [**264] (c) Damages or injuries from participation in road block .  -- If any police officer of this State, or of any political subdivision of this State, while acting within the scope of his authority in the enforcement of any law of this State or of the particular political subdivision, directs the operator of any motor vehicle (other than a police vehicle) within the limits of this State to participate in a road block to assist him in the enforcement of such law or in apprehending any person, suspected of having or known to have committed a violation thereof, the State or the political [*585] subdivision, as the case may be, shall be liable for damages or injuries directly resulting from, or directly attributable to the participation in the road block; provided, however, that the defenses of contributory negligence and "last clear chance" shall be available to the State or political subdivision. For purposes of this section, the Baltimore City police shall be considered police officers of Baltimore City, and the term "police officer" shall be deemed to include all persons charged with law enforcement.  The fiscal officers of the State or political subdivision, as the[***12] case may be, shall forthwith or as soon as possible pay all just claims made or judgments entered pursuant to this section from funds within their control and available for that purpose.

   The history and legislative background of the right of police to require citizens to assist in the enforcement of the law provide valuable insight as to the purpose and intent of the statute.  At common law an officer of the law possessed the power to summon the assistance of a private citizen to aid him in the capture and arrest of a fleeing felon. 10 Halsbury's Laws of England 345 (3rd ed. Simonds 1955); 1 Wharton's Criminal Procedure 146 (12th ed. C. Torcia 1974); see State v. Goodman, 449 S.W.2d 656, 661 (Mo. 1970). Refusal to respond to an officer's request constituted a crime, 1 Wharton's Criminal Procedure, supra at 146, and the fact that the citizen was exposed to danger was no excuse.  Dougherty v. State, 106 Ala. 63, 17 So. 393 (1895). n2 This common law duty to render assistance was related to the obligations imposed by the English statutes concerning hue and cry and the posse comitatus.  The hue and cry was a loud [*586] outcry with which felons were pursued. [***13] All who heard the call were bound to participate in the chase and use their best efforts to capture the absconding felon. 1 Russel on Crime 503 (11th ed. J. Turner 1958).  A similar power was vested in the sheriff who could summon the posse comitatus, or power of the county (consisting of all the adult males of the county) to arrest a felon. Every man was to have his horse ready in the event the demand for assistance was made.  See Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726 (1928) (Cardozo, J.).  See generally 1 J. Alexander, British Statutes in Force in Maryland 207-211, 271-72 and 287-88 (1912).  A natural outgrowth of these obligations, and in particular that of having one's horse available, was the common law power to commandeer the motor vehicle of a private citizen.  Babington v. Yellow Taxi Corporation, supra; Kagel v. Brugger, 19 Wis. 2d 1, 119 N.W.2d 394 (1963).

n2 Some American jurisdictions have provided by statute that the failure to respond to an officer's call for assistance constitutes a crime.  There is some authority for the proposition that in the absence of statute the failure to respond is not a crime.  See Kagel v. Brugger, 19 Wis. 2d 1, 119 N.W.2d 394 (1963); 6A C.J.S. Arrest § 50 (1975).  Whether such failure constitutes a common law offense in Maryland by virtue of Article 5 of the Maryland Declaration of Rights is a question not now before the Court.  See generally 1 J. Alexander, British Statutes in Force in Maryland 207-211, 271-72 and 287-88 (1912).

[***14]

   In Maryland the common law power of an officer of the law to summon a private citizen to aid him in the enforcement of the law was recognized in The State v. Mayhew, 2 Gill 487 (Md. 1845). In holding valid legislation which required bank officers to collect taxes payable by individual owners on the capital stock of the bank, the Mayhew Court analogized the circumstances of that case to other instances in which the State may command the aid of private citizens in enforcing the law:
 
[**265] Every citizen summoned by an executive officer to aid him in the preservation of the public peace, or in the service of civil or criminal process, or in the arrest of a felon, is bound to perform the services required, although it may subject him to danger, as well as "additional labor, trouble and expense." [Id. at 501.]

   In Turner v. Holtzman, 54 Md. 148 (1880), the Sheriff of Baltimore County deputized, in writing, a private citizen to preserve order at a camp meeting. The deputy was also given the power to appoint special officers to aid him.  In holding [*587] that the deputy and his appointed assistant could abate a public nuisance on a public highway, [***15] the Court declared:

    There can be no doubt that the sheriff has the power of keeping the peace within his county, 8 Bacon's Abr. 689, and to raise the posse comitatus to aid him, when necessary in executing his office.  We think it equally clear that the sheriff or his deputy may abate a public nuisance in a public highway; and that Turner, as deputy sheriff, had the lawful authority to remove the coach of the appellee, when he found it obstructing the public highway and preventing other parties, who had a right to use the same, from traveling upon it, and to remove the appellee with it, if he did not choose to leave his seat, or to arrest him if he should resist him in its removal.  He also had the right to call to his assistance the other appellant, Stoddard, and such other persons as he might deem necessary in effecting the abatement of this nuisance thus caused and maintained by the appellee.  [Id. at 159-60.]
 
See South v. Maryland ex rel. Pottle, 59 U.S. (18 How.) 396, 402, 15 L. Ed. 433 (1856); L. Hochheimer, Crimes & Criminal Procedure § 60 (2d ed. 1904).

   Because misfortune and injury befell many citizens when the common law power was exercised, [***16] the legislature enacted the precursor to subsection (b) of § 9-102 in Chapter 38 of the Laws of Maryland, 1951.  In essence, this section (then designated as § 130A of Article 66 1/2) provided for damages for injuries proximately caused by the negligence of a police officer who had directed the operator of a motor vehicle to assist him in the enforcement of law.  It is important to note that the section did not abrogate the common law power, but only provided a remedy when negligence was involved.  The Legislative Council explained the bill's purpose:

   This bill is submitted by the Legislative Council following an unusual accident which recently [*588] occurred in Baltimore City.  A motorist while driving along the streets of the City was commandeered by a police officer to give chase to another motorist.  During the course of the chase, the motorist with the police officer ran through a red light and caused damage both to his car and to a taxicab which he struck.  The question was then raised as to whether anyone would be responsible for the damages to these two parties, each of whom could claim a measure of innocence.  This bill would place the responsibility for paying[***17] such damages upon the State or the political sub-division represented by the police officer. [2 Maryland Legislative Council, Report to The General Assembly of 1951, Proposed Bills A54.]

   That which is designated as subsection (c) was added in 1957.  Laws of Maryland, 1957, Chapter 705.  It imposed liability for injuries to the operator of a motor vehicle who had been directed to participate in a roadblock. Unlike subsection (b), no negligence needed to be shown.  Merely by directing the operator to participate in a roadblock the State was exposing itself to potential damages.

   The final section to be enacted was that designated as subsection (a).  Laws of Maryland, 1968, Chapter 475. n3 That subsection [**266] absolutely prohibited a police officer from commandeering a vehicle for the purpose of directing the operator's participation in a roadblock.

 n3 As originally proposed, House Bill 774 of the 1968 Session of the General Assembly would have totally prevented the police from commandeering a vehicle not only for roadblock purposes, but also for purposes of apprehending suspects. However as finally enacted, the provision contained no flat prohibition against commandeering a vehicle and then directing the operator to assist in the apprehension of a suspect.  This action by the General Assembly suggests that it recognized the common law power to commandeer vehicles and that it did not desire to abrogate the power absolutely (other than for roadblocks), but only intended to provide a remedy where negligence by law enforcement officers was involved.

[***18]

   With this understanding of the origin and purpose of the statute and the meaning of its separate sections, n4 we examine [*589] the statute to determine whether a violation has occurred.  Subsection (b) is not limited to the peculiar fact situation which gave rise to its enactment; it is remedial in nature and therefore is to be liberally construed.  State v. Barnes, 273 Md. 195, 208, 328 A.2d 737 (1974). 3 A. Sutherland, Statutes and Statutory Construction 29 (4th ed. C. Sands 1974).  It is designed to balance the various interests of the parties involved by recognizing the need of the police to occasionally command the assistance of a private vehicle while serving notice that in so doing the police must act reasonably and with due regard for the safety of the private citizen.  Subsection (b) is basically reflective of the common law which required the circumstances to reasonably necessitate the call for assistance, 10 Halsbury's Laws of England, supra at 345; see Dougherty v. State, supra. Nevertheless the common law imposed a duty on the police in carrying out their responsibilities to take precautions for the safety of the public.  Schneble v. State, 201[***19] So. 2d 881, 883 (Fla. 1967); aff'd on other grounds sub nom.  Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972); accord, Evalt v. United States, 359 F.2d 534 (9th Cir. 1966); Wallner v. Fidelity & Deposit Co. of Maryland, 253 Wis. 66, 33 N.W.2d 215 (1948); 6A C.J.S. Arrest § 45 (1975).  If a police officer in performing his responsibilities places a private citizen in a zone of danger without reasonable justification, he may be liable for injuries proximately caused by his negligence.  Brooks v. Lundeen, 49 Ill. App. 3d 1, 364 N.E.2d 423 (1977); Lubelfeld v. City of New York, 4 N.Y.2d 455, 151 N.E.2d 862 (1958); Hale v. Smith, 254 Or. 300, 460 P.2d 351 (1969).

n4 For purpose of deciding whether the statute has been violated, subsections (a) and (c) are to be read together while subsection (b) stands on its own. Subsection (c) provides a remedy for damages resulting from that which subsection (a) prohibits.  Our interpretation is reinforced by the reorganization of these sections in the Transportation Article.  Maryland Code (1977), §§ 19-101 and 19-102 of the Transportation Article.  Former subsection (b) now stands alone as § 19-101.  Former subsections (a) and (c) have been joined in § 19-102.

[***20]
 
   The trial court in granting the State's motion for summary judgment held that there was no violation of § 9-102.  We set forth the test to be applied in determining if summary judgment should be granted in Brown v. Suburban Cadillac, Inc., [*590] 260 Md. 251, 272 A.2d 42 (1971). Judge Finan stated for the Court that
 
[t]he purpose of a hearing on a motion for summary judgment at the trial level is not to try the case on its merits, but rather to decide whether any real dispute as to material facts exists.  . . . If the pleadings, depositions, admissions, and affidavits (if any) show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, then summary judgment should be granted.  . . . Conversely, if there is a genuine dispute as to any material fact, summary judgment would not properly be granted.  . . .

   An appellate court, in reviewing a motion for summary judgment, should be concerned primarily with deciding whether or not a factual issue exists, and in this regard, all inferences should be resolved against the party making the motion.  [Id. at 254-55 (citations omitted).]
 
[***21] See Berkey v. Delia, 287 Md. 302, 413 A.2d 170 (1980); Peck v. Baltimore County, 286 Md. 368, 410 A.2d 7 (1979); Honaker v. W.C. & A.N. Miller Dev. Co., 285 Md. 216, 401 A.2d 1013 (1979); Sherman v. Am. Bankers Life Assur., 264 Md. 239, 285 A.2d 652 (1972).

   [**267] Thus, the issue in this case is whether the police negligently commandeered the Keesling vehicle and thereby forced him to participate in the apprehension of persons who had committed a crime and whether the Keesling vehicle was forced to participate in a roadblock. Commandeer is defined as "to order or force into military [or police] service" or "to seize . . . for public use." Random House Dictionary of the English Language 295 (The Unabridged Ed. 1973).

   As we see it, the facts that may be adduced from the affidavits of Laura Gray and Officer Lacson give rise to jury questions as to whether
 
1) the officers suggested that the criminals make their escape in an unmarked vehicle;
[*591] 2) the use of the beacon light and siren was a command to Keesling to stop which he did in obedience thereto; and
3) the officer's approach to the vehicle and explanation to Keesling of what was happening[***22] amounted to a direction or order to Keesling to cooperate in the apprehension of the criminals.
 
It is a question for the jury to decide whether this conduct of the police fell so far below the duty of police to protect the welfare of the public as to amount to negligence.

   While it is possible that the jury may conclude that the officer acted reasonably under the circumstances, and/or that his conduct did not amount, in effect, to ordering Keesling to participate in a roadblock, it could just as well conclude that the tactics employed by the officers were without regard for the welfare of Keesling and were designed to free themselves from their captors so that they could resume the chase and apprehend the suspects in a roadblock in which the Keesling vehicle would be employed. n5 The jury could conclude the officer ordered Keesling to cooperate, if not expressly, at least by the objective appearance of his words and actions.  The jury could reasonably infer that the officer's words and actions, taken as a whole, were such that the officer must have known he would be interpreted as having commanded Keesling directly to cooperate.

n5 Participating in the roadblock were 35 police cars, 2 motorcycles and a helicopter operated by members of the State Police, Greenbelt U.S. Park Police and the Prince George's County Police department.

[***23]

   If the jury were to believe that the officers set in motion a chain of events which they knew or should have known would lead to the commandeering of the Keesling vehicle and would likely lead to Keesling's injury by the criminals or by the police effort to stop the vehicle, then there would be a violation of the statute in two respects.  First, the statute provides damages for police negligence when the police direct the operator of any motor vehicle to assist in the apprehension of a criminal suspect.  Second, the statute prohibits police from ordering citizens to participate in a [*592] roadblock and provides for damages for the citizen's injury if he is forced to do so.  Under the facts here, a jury might find Keesling an unwilling participant, but a participant nevertheless.  It was, therefore, error for the trial court to grant summary judgment.

   We need not reach the other issues raised in appellee's brief as they were not decided by the trial court or Court of Special Appeals nor were they raised in the Petition or cross-petition for certiorari.  Md. Rule 813.

   For the foregoing reasons, we reverse the judgment of the Court of Special Appeals.

   Judgment of the Court [***24]  of Special Appeals reversed and remanded to that court with instructions to reverse the summary judgment entered in the Circuit Court for Anne Arundel County and remand to that court for further proceedings; appellee to pay the costs.

CONCURBY: RODOWSKY (In Part)

DISSENTBY: RODOWSKY (In Part); SMITH

DISSENT:  
Rodowsky, J., concurring in part and dissenting in part:

   I agree that under the rules relating to summary judgment it was error to grant summary judgment in favor of the defendants [**268] as to the theory of liability predicated on a violation of subsection (b) of Article 66 1/2, § 9-102 of Maryland Code (1957, 1970 Repl. Vol.).  However, in my opinion, the defendants were entitled to judgment as a matter of law as to the theory of liability predicated on a violation of subsection (a), and accordingly, as to subsection (c).  Subsection (a) requires that two elements be satisfied, (1) "commandeering the vehicle and [2] directing the operator . . . to participate in a road block in the apprehension of any person suspected . . . ." Even if it is assumed that a roadblock can be moving, as well as stationary, the participation in it referred to in subsection (a) is participation[***25] as a blocker.  By holding in effect that the vehicle to be blocked, i.e., the object [*593] of a roadblock, "participate[s]" in the roadblock itself, the majority has, in my view, exceeded the plain import of the statute.
 
Smith, J., dissenting:

   Our cases are replete with statements to the effect that the cardinal rule of statutory construction is to ascertain and carry out the real legislative intent; that in determining that intent the Court considers the language of an enactment in its natural and ordinary signification; that we may not insert or omit words to make a statute express an intention not evidenced in its original form; and that, absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless or nugatory.  See, for example, Dorsey v. Beads, 288 Md. 161, 175-76, 416 A.2d 739 (1980); Messitte v. Colonial Mortgage Serv., 287 Md. 289, 293-94, 411 A.2d 1051 (1980); In re James S., 286 Md. 702, 705, 410 A.2d 586 (1980); Board v. Stephans, 286 Md. 384, 388, 408 A.2d 1017 (1979); Harbor Island Marina v. Calvert Co.,[***26] 286 Md. 303, 311, 407 A.2d 738 (1979); Baltimore Gas & Elec. v. Department, 284 Md. 216, 219, 395 A.2d 1174 (1979); Police Comm'r v. Dowling, 281 Md. 412, 418-19, 379 A.2d 1007 (1977); Comptroller v. Mandel Re-Election Com., 280 Md. 575, 578-79, 374 A.2d 1130 (1977); Harden v. Mass Transit Adm., 277 Md. 399, 406, 354 A.2d 817 (1976); Baltimore City v. United Stores, 250 Md. 361, 368-69, 243 A.2d 521 (1968); and Thomas v. Police Commissioner, 211 Md. 357, 361, 127 A.2d 625 (1956). I submit that application of those principles to the statute in question compels an affirmance rather than a reversal here.

   Maryland Code (1957, 1970 Repl. Vol.) Art. 66 1/2, § 9-102 (applicable to this proceeding) provided in relevant part:

   (a) Commandeering vehicle and directing participation in road block prohibited.  -- No police [*594] officer . . . shall direct or order any operator, owner, or passenger of any motor vehicle . . . to assist him by commandeering the vehicle and directing the operator, owner, or passenger to participate in a road block in the apprehension of any person suspected of having committed or known to have committed a violation of law. [***27]

   (b) Damages or injuries from negligence of police officer.  -- If any police officer . . . directs the operator of any motor vehicle . . . to assist him in the enforcement of the law or in apprehending any person suspected of having or known to have committed a violation thereof, the State or the political subdivision, as the case may be, shall be liable for damages or injuries proximately caused by the negligence of the police officer . . . .

   (c) Damages or injuries from participation in road block.  -- If any police officer . . . directs the operator of any motor vehicle . . . to participate in a road block to assist him in the enforcement of such law or in apprehending any person, suspected of having or known to have committed a violation thereof, the State or the political subdivision, as the case may be, shall be liable for damages or injuries directly resulting from, or directly attributable to the participation in the road block . . . .  (Emphasis added.)

   Code (1957, 1968 Repl. Vol.) Art. 1, § 18 provides that captions or headlines of the several sections of the Code "which are [**269] printed in bold type . . . are intended as mere catchwords to indicate[***28] the contents of the sections" and "are not to be deemed or taken as titles of the sections . . . ." However, in this instance the title of § 9-102 as adopted by the General Assembly when it enacted the motor vehicle law by Chapter 534 of the Acts of 1970 was "Liability of State and local government for commandeered vehicles." (Emphasis added.) Thus, it is a part of the act itself and not a heading inserted by the codifier.  Accordingly, we may use it in our [*595] interpretation of the act.  State Farm Mut. v. Ins. Comm'r, 283 Md. 663, 675, 392 A.2d 1114 (1978).

   The term "commandeer" came from the Boer War.  As originally used it meant "[t]o compel to perform military service; to seize for military purposes." Webster's New International Dictionary (2d Ed. Unabridged 1959) 537 and The Oxford English Dictionary (Compact Ed. 1971) 478.  Colloquially it was defined as "to take arbitrary or forcible possession of." Webster at 537.  More recently accepted definitions are "to take arbitrary or forcible possession of," Webster's New International Dictionary (3d Ed. Unabridged 1961) 455, and "to seize (private property) for military or other public use: The [***29] police officer commandeered a taxi and took off after the getaway car," The Random House Dictionary of the English Language (Unabridged Ed. 1967) 295 (Emphasis in original.).

   I need cite no authority for the fact that in the context here the word "direct," which appears throughout the statute, means "to command."

   Subsection (a) is prohibitory, but it contains no provision authorizing payment of damages for its violation.  It is patent, however, that to come within its prohibition two things must take place.  First, a police officer must direct a person "to assist him by [the police officer's] commandeering the vehicle . . . ." Then, the police officer must direct that individual "to participate in a road block" for the purpose of apprehending a "person suspected of having committed or known to have committed a violation of law."

   The plain meaning of subsection (b) is that one may recover for the negligence of a police officer only if he "directs the operator of any motor vehicle . . . to assist him in the enforcement of the law or in apprehending any person suspected of having or known to have committed a violation [of law] . . . ." (Emphasis added.)

   Recovery[***30] under subsection (c) is permitted only where an officer "directs the operator of any motor vehicle . . . to participate in a road block to assist him in the enforcement of . . . law or in apprehending any person . . . ." (Emphasis added.)

   [*596] I agree, as I must under our cases, that when we determine whether a summary judgment was correctly entered the facts must be considered in a light most favorable to the person against whom judgment was entered (the appellant here) and all inferences must be resolved against the party who made the motion (the appellee here).  I believe that under that standard there is no way "the pleadings, depositions, and admissions on file, together with the affidavits" (to use the words of Maryland Rule 610) can be interpreted as giving rise to an inference that the police officers in question commandeered the Keesling vehicle; directed Keesling "to participate in a road block" for the purpose of apprehending a "person suspected of having committed or known to have committed a violation of law"; directed Keesling to assist them in the enforcement of the law or in apprehending any person; or directed Keesling "to participate in [***31]a road block to assist [them] in the enforcement of . . . law or in apprehending any person . . . ." I note specifically that the word "direct" is an integral part of each of the statutes in question.  There is no suggestion that the officers directed Keesling to do anything.  Accordingly, in my view the trial judge and the Court of Special Appeals did not err. 

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v.MICHAEL LeVAN 
No. 5, September Term, 1980
 
Court of Appeals of Maryland
 
288 Md. 533; 419 A.2d 1052; 1980 Md. LEXIS 217

 September  15, 1980, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Williams, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed and case remanded to that court for the passage of an order affirming in part and reversing in part the judgment of the Circuit Court for Anne Arundel County with directions for further remand by it to the Sundry Claims Board for further proceedings consistent with this opinion; appellee to pay the costs.

CORE TERMS:  claimant, prisoner, permanent, earning, final judgment, extra-hazardous, partial disability, disability, degree of disability, total disability, appealable, right of appeal, approve, wages, accidental, formula, refund, self-inflicted, disapproval, supervision, incapacity, formulae, partial, decree, premiums, pro forma order, incapacitate, disapprove, materially, administer

COUNSEL: Arrie W. Davis, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.

   Submitted on brief by G. Denmead Leviness for appellee.

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

OPINIONBY: SMITH

OPINION: [*534] [**1053] We shall here hold that the Court of Special [***4]Appeals erred when it concluded that a circuit court's remand to the Sundry Claims Board (the Board) of an appeal from that Board was not an appealable final order.  We shall further hold that the circuit court judge erred in determining that awards by the Board were to be governed by the Workmen's Compensation statute.

    [*535] I Statutory background

   The Board is created by Code (1957, 1978 Repl. Vol.) Art. 41, § 188A (the Act).  (The last amendment was in 1976, prior to the incident here in question.) Its purpose is to administer benefits whenever a prisoner at an institution "under the supervision of the Division of Correction (1) is engaged in any extra-hazardous work for which wages or a stipulated sum are paid by said institution, and (2) sustains a permanent partial or permanent total disability as a result of said injury, and (3) this disability incapacitates the prisoner or materially reduces his earning power in such work." n1 The statute specifies that the terms [*536] "extra-hazardous work," "permanent partial disability," and "permanent total disability" have the meanings "which are currently given to them in [**1054] Art. 101," the Workmen's Compensation [***5]statute.

n1 The statute states in pertinent part:

   (a) Creation; purpose; definitions; part of Department of Public Safety and Correctional Services.  -- A "Sundry Claims Board" is created for the purpose of administering benefits whenever a prisoner in the . . . House of Correction, or any other institution under the supervision of the Division of Correction (1) is engaged in any extra-hazardous work for which wages or a stipulated sum are paid by said institution, and (2) sustains a permanent partial or permanent total disability as a result of said injury, and (3) this disability incapacitates the prisoner or materially reduces his earning power in such work.  For the purpose of this subtitle, the terms "extra-hazardous work," "permanent partial disability," and "permanent total disability" have the meanings which currently are given to them in Article 101 of this Code, title "Workmen's Compensation."

   (B) Right to file claim; composition of Board.  -- The injured prisoner shall have the right to file a claim for compensation under this subtitle, not later than either twelve (12) months after his release from the institution, or two years from the date of the injury, whichever last occurs, with the Sundry Claims Board.  . . .

   (c) Receiving claims; oaths; witnesses; production of records, books, etc. -- The Board may receive original papers representing claims against the State of Maryland under this subtitle, for the payment of which no money has been appropriated.  Such claims shall be filed and properly designated either by number or short title, or both.  Any member of the Board may administer oaths, compel the attendance of witnesses, and compel the production of records, books and papers pertinent to the claim.  The Board may petition any court having jurisdiction for an order to punish as contempt of court any disobedience of such a subpoena or refusal to be sworn or to answer as a witness, or failure to produce records, books and papers.

   (d) Approval or disapproval of claims; claims record.  -- After investigation of any such claim the Board shall either approve, approve with conditions and limitations, or disapprove it.  The Board shall append to the original papers representing such claim, a concise statement of facts developed by the proceedings upon which its approval or disapproval is based.  Such original papers and appended statements shall be filed in the office of the Comptroller . . . .  The original papers representing such claim and any other matters pertaining thereto shall constitute a permanent claims record.

   (e) Determination of compensation.  -- The Board in considering claims for compensation and in determining what compensation, if any, to allow a claimant, shall take into account the good faith of the claimant, the possibility that the alleged injury was self-inflicted or other than accidental, the extent and nature of the injury, the degree of disability, the period of any disability or incapacity for other work, and the ordinary earning power of the claimant.

   (f) Payment of claims included in State budget.  -- The Governor shall include all claims allowed by the Board in the next State budget, for payment to the claimant or his representative.

   (g) Expenses of Board members.  -- . . . .

   (h) Appeals.  -- Any claimant aggrieved by a final determination of the Board may appeal to the circuit court of the county, or common-law court of Baltimore City, where the injury occurred or the claimant resides.  The court may uphold the determination of the Board, remand for further consideration or findings of fact, or reverse or modify any determination which it finds to be arbitrary or unreasonable, and render decision accordingly.  The Board may be a party to such appeal, and either party shall have a further right of appeal to the Court of Special Appeals.

[***6]

   Claims are to be filed "not later than either twelve (12) months after [an injured prisoner's] release from the institution, or two years from the date of injury, whichever last occurs . . . ." The Board is directed after investigation "either [to] approve, approve with conditions and limitations, or disapprove" a claim.  It is to "append to the original papers representing such claim, a concise statement of facts developed by the proceedings upon which its approval or disapproval is based." "[T]he good faith of the claimant, the possibility that the alleged injury was self-inflicted or other than accidental, the extent and nature of the injury, the degree of disability, the period of any disability or incapacity for other work, and the ordinary earning power of the claimant" are all to be taken into consideration by the Board in its consideration of claims and in determining what, if any, compensation to allow the claimant. A claimant "may appeal to the circuit court of the [*537] county, or common-law court of Baltimore City, where the injury occurred or the claimant resides," which "court may uphold the determination of the Board, remand for further consideration or[***7] findings of fact, or reverse or modify any determination which it finds to be arbitrary or unreasonable, and render a decision accordingly." The Board is a permitted party to an appeal.  "[E]ither party [in the circuit court] shall have a further right of appeal to the Court of Special Appeals."

   The Board came into being as a result of the passage of Chapters 440 and 719 of the Acts of 1961, which are virtually identical measures.  We have been able to develop no legislative history by way of background nor have we been referred to any.  However, since the two measures were introduced in the respective houses of the General Assembly on the same day by the presiding officer of each house, one may infer that creation of the Board was a proposal of the administration or the legislative leadership.  In addition to provision for the Sundry Claims Board, each of the two statutes repealed Code (1957, 1960 Cum. Supp.) Art. 101, § 35A and repealed and reenacted § 35.  Prior to the passage of those acts § 35 provided that whenever any prisoner at an institution under the supervision of the Board of Correction was "engaged in any extra-hazardous employment within the meaning of [Art. [***8] 101] for which wages or a stipulated sum [were] paid by said institution," that article was to be applicable if the "prisoner sustain[ed] a permanent partial or a permanent total disability as a result of said injury, and [for the purpose of computing benefits] the average weekly wages of any such prisoner injured in the course of his or her employment [were to] be the average weekly wages paid by the Department of Correction to such prisoner, and in addition thereto, a fair and reasonable sum to be determined by the Workmen's Compensation Commission for the board and maintenance of such prisoner not to exceed the amount customarily received by the institution for its own use by prisoners engaged in extra-hazardous employment by other employers." In other words, workmen's compensation was [*538] available for any prisoner injured during the course of any extra-hazardous employment prior to the enactment of the present Sundry Claims Board statute.  However, after the revisions, § 35 was applicable only to prisoners "working for the county roads board or the board of county commissioners or county council in the counties to which [the] section [was made applicable]," [***9] namely Frederick, Wicomico, and Worcester.  Thus, after the revision a prisoner injured on the job was to be compensated only through the Board.  The section repealed, 35A, had expanded protection for prisoners by providing that § 35 also would be applicable "to any prisoners working for the county roads board or the board of county commissioners of Wicomico, Frederick or Worcester Counties."

   As originally enacted in 1961 a prisoner was required to file his claim for compensation with the Sundry Claims Board "within twelve (12) months after his release from the institution, and not before such release . . . ." This was amended by Chapter 739 of the Acts of 1975 so that [**1055] the statute now provides, as previously indicated, that the claim is to be submitted not later than twelve months after his release from the institution or two years from the date of injury, whichever last occurs.

   II This case

   Appellee, Michael LeVan, sustained an injury on March 29, 1977, while an inmate of the Maryland House of Correction.  He was employed at that time as a janitor in charge of sanitation for an activity area.  It is conceded that his injuries are covered by the Act.  He was examined[***10] twice by an orthopedist employed by the Department of Correction.  This physician was of the opinion after the first examination that LeVan had sustained a twenty percent permanent partial disability of his lower back.  He concluded after the second examination eight months later that a twenty-five percent disability had been sustained.

   The Board awarded compensation of $1,500 to LeVan.  He was dissatisfied and appealed to the Circuit Court for Anne Arundel County.  That court affirmed the determination that [*539] LeVan had sustained an accidental back injury in the course of employment which brought about permanent partial disability, but it remanded the case to the Board "for a further, explicit finding of the percentage of this permanent partial disability, . . . also for presentation of further evidence as to [LeVan's] 'ordinary earning power' and for explicit fact-findings on this point," specifying "that such fact finding shall incorporate consideration of [LeVan's] past nonprison wages and the factors listed at page five in the [court's] opinion." At page five of its opinion the court found "that the following factors should be considered in assessing a claimant's[***11] earning power: the claimant's age, education, general background and experience, comparison to work performable with the physical impairment, the claimant's willingness to work and availability of claimant's work performable if uninjured." The final direction of the remand was:

   4) That the Board shall make a new award, if necessary, by multiplying the Claimant's approximate weekly ordinary earning power by the number of weeks which his percentage of permanent partial disability bears to 500 weeks, per Art. 101, sec. 36(4) (a); and that other factors included in Art. 41, sec. 188A (e) shall not be applied to limit or to prorate the basis of the award as they are relevant only to issues of accidental injury and degree of disability.

   The Department was dissatisfied and appealed to the Court of Special Appeals. That court in an unreported opinion (No. 481, September Term, 1979) dismissed the appeal ex mero motu "for several reasons," stating:
 
1. The appeal is not from a "final judgment" within the meaning of Courts Art. § 12-301.
 
2. The case has been remanded to the Board for further proceedings after which it will inferentially begin anew its laborious travel[***12] through the courts.  If and when it next [*540] reaches here, it will be in the form of a final judgment.
 
3. Md. Rule 1035 a 1 prohibits the Court from entertaining appeals from pro forma orders, judgments or decrees.

   We think the appeal to be premature inasmuch as all the relevant issues arising in the case have not been decided.
 
We granted the writ of certiorari and advanced the case for argument prior to the beginning of the September 1980 term.

   III Appealability n2

n2 Although the Attorney General regarded this case as of sufficient importance to warrant a petition to us for the writ of certiorari, his brief contains but little argument on the point.  No case is mentioned or discussed in support of the proposition that this is an appealable final judgment. In LeVan's brief the point is not even discussed other than to say that since the case is here he "joins with the State in its request that all issues before the Court of Special Appeals be decided . . . ." We suggest that neither party has followed the procedure which should be followed in an appellate court.  Moreover, the consent of the litigants cannot vest jurisdiction in an appellate court. Clark v. Elza, 286 Md. 208, 211-12, 406 A.2d 922 (1979), and Biro v. Schombert, 285 Md. 290, 293, 402 A.2d 71 (1979).

[***13]

   Code (1974) § 12-301, Courts and Judicial Proceedings Article states in pertinent [**1056] part, "Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court." The limitation in § 12-302 which would be applicable here is found in subsection (a) stating:

   Unless a right to appeal is expressly granted by law, § 12-301 does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of the District Court, an administrative agency, or a local legislative body.
 
Thus, the right of appeal here stems from Art. 41, § 188A (h), which we have previously quoted, to the effect that an aggrieved party in a circuit court (or "common-law court of Baltimore City") to an appeal from the Sundry Claims Board [*541] "shall have a further right of appeal to the Court of Special Appeals." Exceptions to the requirement that appeals be from final judgments are set forth in § 12-303 and were discussed recently in Pappas v. Pappas, 287 Md. 455, 413 A.2d 549 (1980). Since appeals from review by a trial court of a decision by an administrative[***14] body are not covered in § 12-303, it follows that, reading §§ 12-301, 12-302, and 12-303 together, only a final judgment is appealable.

   The Court of Special Appeals correctly stated that Maryland Rule 1035 a 1 prohibits it from entertaining appeals from pro forma orders, judgments or decrees. There is nothing new about this.  Rule 1035 is derived from former Maryland Rule 835 applicable to appeals to this Court at the time when appeals came directly to us.  Rule 835 was, in turn, derived from former Rule 25 of this Court stating we would "not entertain or consider any appeal taken from a pro forma order, decree or judgment, but w[ould] treat every such appeal as prematurely taken, and w[ould] dismiss the same whenever it appeared[ed] on the face of the record, or otherwise, that the appeal [was] from such pro forma order, decree or judgment."

   We have no pro forma order here.  This was a contested case.  The parties disagreed and the circuit court judge decided the controversy.

   Guidance as to what trial court determinations of administrative appeals are appealable final judgments may be derived from two cases, United States Fire Ins. v. Schwartz, 280 Md. 518, 374 A.2d[***15] 896 (1977), and Criminal Inj. Comp. Bd. v. Remson, 282 Md. 168, 384 A.2d 58 (1978). Schwartz was the sequel to Md. Fire UW v. Insur. Comm'r, 260 Md. 258, 272 A.2d 24 (1971), in which we upheld orders of the Insurance Commissioner denying requests by three rating bureaus for authority to increase certain homeowners' insurance policy rates. The requested rate schedules in controversy had been instituted prior to the Commissioner's rejection.  Pursuant to Code (1957, 1972 Repl. Vol., 1976 Cum. Supp.) Art. 48A, § 242B (2) the companies in question had continued to collect the higher premiums on policies written during the period between the [*542] effective date of the Commissioner's order and the issuance of our mandate. At issue in Schwartz was whether those companies who charged the higher rates were required to refund to the holders of the policies so much of the premiums as were found by the Commissioner to be excessive.  The Commissioner determined that he had no authority under applicable statutes to order return of any part of the premiums collected during the appeal period.  On appeal to the Baltimore City Court a trial judge remanded the case "to the Commissioner[***16] for hearing on the extent to which he should invoke his discretionary powers under Article 48A, Section 55A." (Emphasis added.) Judge Levine pointed out for this Court that the trial judge in Schwartz "neither ordered a refund nor required the Commissioner to do so." He also pointed out that the judge indicated it would be appropriate for the Commissioner to consider the circumstances under which the rates in question were collected during the appeal period, the length of time the refunds had not been forthcoming, whether or not there had been a tender of a refund [**1057] by the companies, and the difference, if any, in coverage afforded the claimants under the policies issued with the rates in question.  Judge Levine said for the Court in Schwartz:

   The decisive question, then, is whether the judgment of the Baltimore City Court was final and, therefore, appealable. We think not.  Whether a judgment is final is not always readily capable of delineation.  In general, the cases hold that to be final, a judgment must actually settle the rights of the parties, Collins v. Cambridge Hospital, 158 Md. [112,] 116 [, 148 A. 114 (1930)]; it must finally settle some[***17] disputed right or interest of the parties, Harlan v. Lee, 177 Md. 437, 439, 9 A.2d 839 (1939). Otherwise stated, the judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding, In re Buckler Trusts, 144 Md. 424, 427, [*543]125 A. 177 (1924). [Id. 280 Md. at 521.]
 
It was in this context that we said that there was no final judgment in Schwartz because "there yet remain[ed] for decision complex issues which ha[d] been remanded for determination by the agency most qualified to resolve them." Id. at 523. Schwartz is in a class by itself.

   In Remson parties sought compensation from the Criminal Injuries Compensation Board.  That board rejected the claim on the basis that the claimants came within the statutory exclusion of persons related within the third degree of consanguinity or affinity to the person criminally responsible for the crime. The circuit court reversed and remanded the case to that board for an award. Judge Orth said for this Court:
 
As the claimants see it, issues remain which[***18] have been remanded for determination by the Board.  Therefore, the judgment of the circuit court is not final.  We do not see it that way.  We think that the judgment by the circuit court that the "family" of the assailant proscription did not apply was a "final" judgment in the contemplation of the statutory right to secure a review bestowed by Code (1957, 1971 Repl. Vol., 1977 Cum. Supp.) Art. 41, § 256. Claimants rely solely on United States Fire Ins. v. Schwartz, 280 Md. 518, 374 A.2d 896 (1977). In Schwartz there remained "for decision complex issues which have been remanded for determination by the agency most qualified to resolve them." Id. at 523. Here, all that remained for the Board to do on remand was to determine the amount due the claimants, and that is governed by § 12 of the Criminal Injuries Compensation Act.  Schwartz is inapposite.  We reject the suggestion to dismiss the appeal.  [Id. 282 Md. at 177.]
 
   Art. 41, § 188A (h) provides that after an appeal to the circuit court "either party shall have a further right of [*544] appeal to the Court of Special Appeals." The order of the circuit court judge provided a formula for determination[***19] of the award to be made based upon his construction of the statute.  By the terms of the remand the Board was not directed, as in Schwartz, merely to exercise its authority but was told to make an award under a specified formula. In Schwartz the Insurance Commissioner was of the view that he had no discretion to exercise.  Reconsideration of Schwartz in the light of our earlier cases such as D. C. Transit Systems v. S.R.C., 259 Md. 675, 682, 270 A.2d 793 (1970), and Concannon v. State Roads Comm., 230 Md. 118, 186 A.2d 220 (1962), and our later decision in Remson leads to the conclusion that Schwartz was in error.  In Concannon Chief Judge Brune said for the Court:

   In view of the effect of the order as determining the principal claim of the property owners and as depriving them of the means of proceeding further to enforce the right which they assert, we are further of the opinion that it constitutes a final order within the meaning of § 1 of Art. 5 of the Code (1957) and hence is appealable thereunder.  [Id. at 125 (citing cases).]
 
Hence, we overrule Schwartz and any cases with a similar holding.  We find this to be an appealable[***20] final judgment.

   [**1058] IV The statute

   Noting that subsection (a) of the Act provides that certain terms "have the meanings which currently are given to them in Article 101" and that subsection (e) refers to the "degree of disability," the circuit court judge in this case concluded that the Act requires that any award made by the Board be under formulae specified in Art. 101, the Workmen's Compensation statute.  We disagree.

   In Police Comm'r v. Dowling, 281 Md. 412, 379 A.2d 1007 (1977), we said, citing cases for each proposition stated:
 
The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent.  [*545] In determining that intent the Court considers the language of an enactment in its natural and ordinary signification.  . . . A corollary to this rule is that if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the General Assembly . . . .  A court may not insert or omit words to make a statute express an intention not evidenced in its original form.  . . . The General Assembly is presumed to have had, and acted with respect to full[***21] knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law.  . . . Absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory . . . .  [Id. at 418-19.]
 
To similar effect see Dorsey v. Beads, 288 Md. 161, 175-76, 416 A.2d 739 (1980); Pennsylvania Nat'l Mut. v. Gartelman, 288 Md. 151, 156, 416 A.2d 734 (1980); and Messitte v. Colonial Mortgage Serv., 287 Md. 289, 293-94, 411 A.2d 1051 (1980).

    The prerequisites for obtaining benefits under the Act are set forth in § 188A (a), namely that the claimant be a prisoner at an institution under the supervision of the Division of Correction engaged in extra-hazardous work for which wages or a stipulated sum are paid by the institution, that he sustain a permanent partial or permanent total disability as a result of injury while so engaged, and that the disability incapacitate him or materially reduce his earning power "in such work," obviously referring to work at the institution. It is for the purpose of[***22] defining the terms "extra-hazardous work," "permanent partial disability," and "permanent total disability" that Art. 101 is invoked and for no other purpose.  The language is clear.  Those terms are to "have the meanings which currently are given to them in Article 101 . . . ." It is in subsection (a) that Art. 101 is [*546] mentioned.  It appears nowhere else in the statute.  There is not even a suggestion elsewhere in the statute that it is to be followed in determining what, if any, award is to be made to a claimant.

   Subsection (b) provides limitations, a point not here at issue.  No mention is made of Art. 101.  Subsection (c) is involved with the administration of the statute such as specifying that members of the Board may administer oaths, etc.

   Subsection (d) directs that "[a]fter investigation of any such claim the Board shall either approve, approve with conditions and limitations, or disapprove it." Further reference is made to a requirement that there be appended to the original papers of the claim "a concise statement of facts developed by the proceedings upon which its approval or disapproval is based." No mention is made of Art. 101.

   Subsection (e) is the one[***23] concerned with determination of compensation.  It states in its entirety:

   (e) Determination of compensation.  -- The Board in considering claims for compensation and in determining what compensation, if any, to allow a claimant, shall take into account the good faith of the claimant, the possibility that the alleged injury was self-inflicted or other than accidental, the extent and nature of the injury, the degree of disability, the period of any disability or incapacity for other work, and the ordinary earning power of the claimant.
 
[**1059] It contains the criteria to be used by the Board "in considering claims for compensation and in determining what compensation, if any, to allow a claimant . . . ." n3 There are certain positive things the Board is directed to do.  It [*547] must determine the good faith of the claimant, whether the injury was self-inflicted or other than accidental, the extent and nature of the injury, the degree of disability, the period of disability or incapacity for other work and the ordinary earning power of the claimant. A reviewing court would expect to find each of these determinations clearly appearing in the record.  After[***24] this determination, the Board is to bring its best judgment to bear and to award compensation accordingly.  There is no requirement that the Board follow all the various formulae laid down by the circuit court judge.  This compensation is in no way tied to the Workmen's Compensation statute.  An attempt to so tie it ignores the fact that a scheme existed for compensation for injured prisoners under that statute and that the General Assembly in its wisdom saw fit to eliminate that scheme and to substitute the Sundry Claims Board in its stead.  It has specified the criteria to be followed by the Board.

 n3 We have no contention in this case that the statute is unconstitutional because of the absence of sufficient guides and standards to govern the administrative body.  See, e.g., Schneider v. Pullen, 198 Md. 64, 81 A.2d 226 (1951), and Maryland Theatrical Corp. v. Brennan, 180 Md. 377, 24 A.2d 911 (1942). Thus, our opinion here is not to be interpreted as approving or disapproving this statute as to constitutionality.

[***25]

   The Board in this case failed to determine the degree of disability sustained by the claimant, one of the factors which the Act requires to be taken into account in making an award.  For that reason, the circuit court judge was correct in remanding the case to the Board "for a further, explicit finding of the percentage of this permanent partial disability . . . ." Since, however, there is no basis whatever in the Act for a conclusion that compensation is to be determined under the formulae of the Workmen's Compensation statute, the circuit court judge erred in that regard.

   Judgment of the Court of Special Appeals reversed and case remanded to that court for the passage of an order affirming in part and reversing in part the judgment of the Circuit Court for Anne Arundel County with directions for further remand by it to the Sundry Claims Board for further proceedings consistent with this opinion; appellee to pay the costs. 

PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v.DORIS M. GARTELMAN et al. 
No. 102, September Term, 1979
 
Court of Appeals of Maryland
 
288 Md. 151; 416 A.2d 734; 1980 Md. LEXIS 195; 18 A.L.R.4th623

 July  7, 1980, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Goudy, J.

DISPOSITION: Judgment affirmed.  Costs to be paid by appellant. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant insurer was granted a writ of certiorari to the Court of Special Appeals (Maryland), which affirmed the judgment of the trial court finding that the exclusions in the automobile insurance policy issued by insurer were invalid under Md. Code art. 48A, § 539 et seq. and Md. Code art. 48A, § 243H, and appellee claimant was entitled to coverage under the personal injury protection and uninsured motorist provisions of the policy.

OVERVIEW:  Appellee claimant was insured under an automobile policy issued by appellant insurer to claimant's husband. Claimant was injured while driving an uninsured moped owned by her husband when the moped was forced off the road by an unidentified vehicle. Insurer declined to provide coverage under the personal injury protection (PIP) and uninsured motorist (UM) provisions of the policy, because the policy excluded coverage where an insured was injured in an uninsured vehicle it owned. Claimant sued for coverage, and the appellate court affirmed the judgment of the trial court in favor of claimant. On appeal, the court held that because PIP and UM coverage were required under Md. Code art. 48A, § 539 et seq., and because the exclusion allowed under Md. Code art. 48A, §§ 545 and 243H did not expressly include the exclusions appellant included in its policy, the exclusions in the policy issued by appellant were invalid. Thus, claimant was entitled to PIP and UM coverage, and the court affirmed to order of the appellate court.

OUTCOME:  The court affirmed the order of the appellate court, since exclusions from uninsured motorist and personal injury protection that were in policy were in addition to those permitted by state law, and therefore invalid, and claimant was thus entitled to coverage.
 
CORE TERMS:  insured, coverage, uninsured motor vehicle, claimant, motor vehicle, named insured, insurer, uninsured, occupying, invalid, motor vehicles, insurance policy, entitled to coverage, motorist, highway, innocent, primary purpose, legislative policy, remedial, fault, automobile liability policy, bodily injury, financially, excluding, insert, riding, moped, liability insurance policy, actual intent, consonant

CORE CONCEPTS -  

Insurance Law: Automobile Insurance: Compulsory Insurance
In Maryland, there is an established legislative policy designed to make certain that those who own and operate motor vehicles in this state are financially responsible. Md. Code art. 48A, §§ 243A-N; §§ 538-547; Md. Code (1977 & 1979), Md. Code Transp., § 17-101 -- § 17-107.

Insurance Law: Automobile Insurance: Compulsory Insurance
The owner of a motor vehicle registered in Maryland is required to provide security, usually in the form of a vehicle liability insurance policy. Md. Code Transp. art. §§ 17-103, 17-104. Every such insurance policy must provide personal injury protection (PIP) coverage. Md. Code art. 48A, § 539. The primary purpose of this requirement is to assure financial compensation to victims of motor vehicle accidents without regard to the fault of a named insured or other persons entitled to PIP benefits. Md. Code § 540.

Insurance Law: Automobile Insurance: Compulsory Insurance
See Md. Code art. 48A, § 540.

Insurance Law: Automobile Insurance: Compulsory Insurance
See Md. Code art. 48A, § 539.

Governments: Legislation: Construction & Interpretation
The cardinal rule of statutory construction is to ascertain and effectuate the actual intent of the legislature. Where a statute expressly provides for certain exclusions, other should not be inserted.

Insurance Law: Automobile Insurance: Compulsory Insurance
Any provision of an automobile liability insurance policy which conflicts with the requirements of the statute regulating such policies is invalid.

Insurance Law: Automobile Insurance: Compulsory Insurance
Md. Code art. 48A, § 545 expressly provides for only four exclusions from the required personal injury protection coverage. It does not expressly provide an exclusion for an insured occupying an uninsured motor vehicle owned by a named insured. The court declines decline to insert such an exclusion which would be contrary to the remedial legislative purpose of assuring compensation for damages to victims of motor vehicle accidents without regard to fault.

Insurance Law: Automobile Insurance: Uninsured Motorists
In Maryland, in addition to personal injury protection coverage, every motor vehicle liability insurance policy must provide uninsured motorist coverage. Md. Code art. 48A, § 541 (c).

Insurance Law: Automobile Insurance: Uninsured Motorists
 See Md. Code art. 48A, § 541(c).

Insurance Law: Automobile Insurance: Uninsured Motorists
Md. Code art. 48A, § 243H (a) delineates the types of claims which may be made against Maryland Automobile Insurance Fund. More specifically, Md. Code art. 48A, § 243H (a) (1) (i) expressly provides that such claims may be maintained provided that the claimant was not, at the time of the accident, operating or riding in an uninsured motor vehicle owned by him and is not the personal representative of the person so operating or riding in such a vehicle.

Governments: Legislation: Construction & Interpretation
In ascertaining and effectuating the actual intent of the legislature, a court must read the language of the statute in context and in relation to all of its provisions. Where statutory language is plain and unambiguous, and expresses a definite meaning consonant with the statute's purpose, courts must not insert or delete words to make a statute express an intention different from its clear meaning.

Insurance Law: Automobile Insurance: Uninsured Motorists
Maryland's uninsured motorist statute is remedial in nature and should be liberally construed in order to promote its purpose of recovery for innocent victims of motor vehicle accidents.

Insurance Law: Automobile Insurance: Uninsured Motorists
Md. Code art. 48A, § 243H (a) (1) (i) expressly excludes from coverage a claimant operating an uninsured motor vehicle which he himself owns. No express exclusion is provided for a claimant operating an uninsured motor vehicle owned by an insured other than himself. Thus the plain and unambiguous language of the statute establishes that only a claimant operating an uninsured motor vehicle which he himself owns can be excluded from uninsured motorist coverage.

COUNSEL: M. Natalie McSherry, with whom were Louis G. Close, Jr., and Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellant.

   Lee Gordon, with whom were Gordon & Goodman, P.A. on the brief, for[***4] Doris M. Gartelman, one of appellees.  Ronald H. Jarashow, with whom were William A. Franch and Goldsborough, Franch & Collett on the brief, for Maryland Automobile Insurance Fund, other appellee.

JUDGES: Smith, Digges, Cole, Davidson and Rodowsky, JJ.  Davidson, J., delivered the opinion of the Court.

OPINIONBY: DAVIDSON

OPINION: [*153] [**735] This case concerns the interrelationship between Maryland insurance law and certain exclusions from coverage provided by motor vehicle liability policies.

   The facts of this case are undisputed.  One of the appellees, Doris M. Gartelman (claimant), was an insured motorist under a policy issued to her husband by the appellant, Pennsylvania National Mutual Casualty Insurance Company (insurer).  On 13 July 1977, the claimant, while operating an uninsured moped n1 owned by her husband, was injured when she was forced off the road by an unidentified truck.  The claimant sought benefits from the insurer under the insurance policy's personal injury protection (PIP) and uninsured motorist (UM) provisions.  The insurer refused to pay because of exclusions contained in the policy.

n1 Throughout this opinion, we are assuming without deciding that, under the insurance policy here involved, a moped is a "motor" or "highway" vehicle.

[***5]

   On 21 February 1978, in the Circuit Court for Anne Arundel County, the claimant filed a petition for a declaratory judgment seeking a declaration that she was entitled to coverage under the policy, or, in the alternative, under the Act governing the Maryland Automobile Insurance Fund (MAIF).  Md. Code (1957, 1979 Repl. Vol.), Art. 48A, §§ 243A-N.  The trial court granted the claimant's and MAIF's motions for summary judgment, declared that the claimant was entitled to coverage under both the PIP and UM provisions of the policy, and entered judgment in favor of the claimant and MAIF.  The insurer appealed to the Court of Special Appeals which affirmed.  Pennsylvania Nat'l Mutual Casualty Ins. Co. v. Gartelman, 43 Md. App. 413, 405 A.2d 779 (1979). We granted a writ of certiorari.  We too shall affirm.

   [*154] I

   Personal Injury Protection Coverage

   This case initially presents the question whether, under Art. 48A, § 539 and § 545, a [**736] motor vehicle liability policy may exclude from PIP coverage an insured who is injured while occupying an uninsured motor vehicle owned by a named insured.

   In Maryland, there is an established legislative policy designed to make [***6]certain that those who own and operate motor vehicles in this State are financially responsible.  Art. 48A, §§ 243A-N; §§ 538-547; Md. Code (1977 & 1979 Cum. Supp.), § 17-101 -- § 17-107 of the Transportation Article.  This legislative policy has the overall remedial purpose of protecting the public by assuring that operators and owners of motor vehicles are financially able to pay compensation for damages resulting from motor vehicle accidents.  See Rentals Unlimited, Inc. v. Administrator, Motor Vehicle Admin., 286 Md. 104, 110, 405 A.2d 744, 748-49 (1979); Keystone Mutual Casualty Co. v. Hinds, 180 Md. 676, 679, 26 A.2d 761, 762 (1942). To effectuate this legislative policy, the owner of a motor vehicle registered in Maryland is required to provide security, usually in the form of a vehicle liability insurance policy. §§ 17-103, 17-104 of the Transportation Article.  Every such insurance policy must provide PIP coverage. Art. 48A, § 539.  The primary purpose of this requirement is to assure financial compensation to victims of motor vehicle accidents without regard to the fault of a named insured or other persons entitled to PIP benefits.  § 540. n2

 n2 § 540 provides in pertinent part:

   "The benefits required under § 539 of this article shall be payable without regard to the fault or nonfault of the named insured or the recipient in causing or contributing to the accident.  . . ." (Emphasis added.)

[***7]

   Section 539 provides in pertinent part:
 
"No policy of motor vehicle liability insurance shall be issued, sold or delivered . . . unless the policy also [*155] affords the minimum medical, hospital and disability benefits set forth herein.  . . . The benefits, or their equivalent, shall cover the named insured and members of his family residing in his household.  . . ."
 
Section 545 expressly provides for certain exclusions from this requirement.  It states:

   "The coverages prescribed under § 539 of this article may exclude from benefits thereunder any person otherwise insured under the policy who:

   (a) Intentionally causes the accident resulting in the injury, or

   (b) Is injured while operating or voluntarily riding in a vehicle known by him to be stolen, or

   (c) Is injured while in the commission of a felony or while in violation of § 21-904 of the Transportation Article.

   (d) With respect to motorcycles, economic loss benefits required under § 539 may be excluded, or may be offered with deductibles, options or with specific exclusions."

   Here the policy under which the claimant was insured provided the required PIP coverage. However, with respect to[***8] exclusions, it provided in pertinent part:
 
"This insurance does not apply

   . . .

   (c) to bodily injury sustained by the named insured or any relative while occupying . . . any motor vehicle owned by the named insured . . . which is not an insured motor vehicle."

   The insurer contends that the insurance policy's exclusion of an insured injured while occupying an uninsured motor vehicle owned by a named insured is nothing more than a "narrowing [of] the insurer's liability in a manner not inconsistent with statutory requirements." It asserts that there is "no statutory bar or evidence of intent to preclude [*156] such an exclusion." The insurer concludes that its exclusion does not conflict with the statutory requirements and is valid.

   The claimant contends that the exclusion is invalid. She points out that although the statute provides for certain exclusions, it does not provide for excluding an insured occupying an uninsured motor vehicle owned by a named insured. Accordingly, she concludes that the policy does not provide the coverage required by § 539.

   [**737] The cardinal rule of statutory construction is to ascertain and effectuate the actual intent of[***9] the Legislature.  Department of State Planning v. Mayor of Hagerstown, 288 Md. 9, 14, 415 A.2d 296, 299 (1980). Where a statute expressly provides for certain exclusions, other should not be inserted.  Coleman v. State, 281 Md. 538, 546, 380 A.2d 49, 54 (1977); State Ins. Comm'r v. Nationwide Mutual Ins. Co., 241 Md. 108, 117, 215 A.2d 749, 754-55 (1966). Any provision of an automobile liability insurance policy which conflicts with the requirements of the statute regulating such policies is invalid. Peninsula Ins. Co. v. Houser, 248 Md. 714, 721, 238 A.2d 95, 99 (1968); Keystone Mutual, 180 Md. at 679, 26 A.2d at 762; Lord v. Maryland Automobile Ins. Fund, 38 Md. App. 374, 377, 381 A.2d 23, 25 (1977).

   Applying these principles to the instant case produces a clear result. Section 545 expressly provides for only four exclusions from the required PIP coverage. It does not expressly provide an exclusion for an insured occupying an uninsured motor vehicle owned by a named insured. We decline to insert such an exclusion which would be contrary to the remedial legislative purpose of assuring compensation for damages to victims of motor vehicle accidents without [***10]regard to fault.

   The insurance policy in this case, because it provides an exclusion for an insured occupying an uninsured motor vehicle owned by a named insured, denies PIP coverage to a class of persons who are required by § 539 to be covered.  The policy's exclusion, therefore, conflicts with the statute and is [*157] invalid. Accordingly, the claimant is entitled to coverage under the policy's PIP provision.

   II

   Uninsured Motorist Coverage

   The second question presented is whether, under Art. 48A, §§ 541 (c) and 243H (a) (1) (i), a motor vehicle liability policy may exclude from UM coverage an insured who is injured while occupying an uninsured highway vehicle owned by an insured other than himself.

   In Maryland, in addition to PIP coverage, every motor vehicle liability insurance policy must provide UM coverage. § 541 (c).  The primary purpose of this requirement is to assure financial compensation to the innocent victims of motor vehicle accidents who are unable to recover from financially irresponsible uninsured motorists. State Farm Mutual Automobile Ins. Co. v. Maryland Automobile Ins. Fund, 277 Md. 602, 605, 356 A.2d 560, 562 (1976); Allied American Mutual [***11]  Fire Ins. Co. v. Commissioner of Motor Vehicles, 219 Md. 607, 611, 150 A.2d 421, 424 (1959).
 
   Section 541(c) provides in pertinent part:
 
"[E]very policy of motor vehicle liability insurance . . . shall contain coverage . . . for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle. The coverage required under this subsection (c) shall be in such form and subject to such conditions as may be approved by the Commissioner of Insurance.

   . . .

   "In no case shall the uninsured motorist coverage be less than the coverage afforded a qualified person under Article 48A §§ 243H and 243-I."
 
[*158] Section 243H (a) delineates the types of claims which may be made against MAIF.  More specifically, § 243H (a) (1) (i) expressly provides that such claims may be maintained provided that:
 
"The claimant was not, at the time of the accident, operating or riding in an uninsured motor vehicle owned by him and is not the personal representative of the person so operating or riding in[***12] such a vehicle." (Emphasis added.)
 
Thus the statute expressly excludes from coverage a claimant who is operating an uninsured motor vehicle which he himself owns.  The primary purpose of this exclusion [**738] is to encourage owners of uninsured motor vehicles to become insured. Unsatisfied Claim & Judgment Fund of Md. v. Hamilton, 256 Md. 56, 60, 259 A.2d 303, 305 (1969).

   Here the insurance policy under which the claimant was insured provided the required UM coverage. However, with regard to exclusions, it provided in pertinent part:
 
"This insurance does not apply

   . . .

   (b) to bodily injury to an insured while occupying a highway vehicle (other than an insured highway vehicle) owned by the named insured any designated insured or any relative resident in the same household as the named or designated insured." (Emphasis added.)

   The insurer contends that this exclusion, approved by the Commissioner of Insurance, is, in effect, identical to that contained in § 243H (a) (1) (i).  It maintains that § 243H (a) (1) (i) must be construed to deny coverage, not only to an insured operating an uninsured motor vehicle which he himself owns, but also to all[***13] other persons insured under the policy when operating an uninsured motor vehicle owned by an insured other than himself.  It points out that unless the statute is so construed, an insured could own several motor vehicles, insure only one, and nevertheless obtain UM coverage under the policy for other insureds, even when they [*159] are operating one of the uninsured motor vehicles. Under such circumstances, the insurer would be unable to ascertain the risk which it was undertaking because it would not know the number of vehicles to be covered.  The insurer asserts that the Legislature could not have intended such an anomalous result.  It concludes that when § 243H (a) (1) (i) is construed to exclude an insured operating an uninsured motor vehicle owned by an insured other than himself, the insurance policy's "UM coverage is identical to that afforded a qualified person under § 243H and is in conformance with § 541."

   The claimant contends that the insurance policy's exclusion is invalid. She points out that although the statute permits the exclusion of a claimant operating an uninsured motor vehicle which he himself owns, it does not provide for excluding a claimant operating[***14] an uninsured motor vehicle owned by an insured other than himself.  Accordingly, she concludes that the policy does not provide the coverage required by § 541(c).

   An additional rule of statutory construction applicable here is that in ascertaining and effectuating the actual intent of the Legislature, a court must read the language of the statute in context and in relation to all of its provisions.  Where statutory language is plain and unambiguous, and expresses a definite meaning consonant with the statute's purpose, courts must not insert or delete words to make a statute express an intention different from its clear meaning.  Department of State Planning, 288 Md. at 15, 415 A.2d at 299. Moreover, Maryland's uninsured motorist statute is remedial in nature and should be liberally construed in order to promote its purpose of recovery for innocent victims of motor vehicle accidents.  State Farm, 277 Md. at 605, 356 A.2d at 562.

   Applying these principles to the instant case produces a clear result. Section 243H (a) (1) (i) expressly excludes from coverage a claimant operating an uninsured motor vehicle which he himself owns.  No express exclusion is provided for a claimant[***15] operating an uninsured motor vehicle owned by an insured other than himself.  Thus the plain and [*160] unambiguous language of the statute establishes that only a claimant operating an uninsured motor vehicle which he himself owns can be excluded from UM coverage. The Insurance Commissioner's approval of the policy's exclusion is not persuasive because it is an administrative interpretation contrary to the clear and unambiguous meaning of the statute.  Comptroller of the Treasury v. John C. Louis Co., 285 Md. 527, 543, 404 A.2d 1045, 1055 (1979); State Farm, 277 Md. at 606, 356 A.2d at 562.

   [**739] Our reading is consonant with the remedial legislative purpose of § 541 (c).  That section is concerned with the protection of innocent victims of motor vehicle accidents rather than with the protection of insurance companies from allegedly unascertainable risks.  The purpose of § 243H (a) (1) (i) is to encourage the owner of an uninsured motor vehicle to become insured by imposing upon him the penalty of exclusion from coverage for failure to obtain insurance. This purpose is not furthered by penalizing other insured persons who cannot obtain insurance for uninsured[***16] motor vehicles which they do not own. The exclusion of such other insured persons from UM coverage is contrary to the purpose of § 541 (c) which is to assure financial compensation to innocent victims of motor vehicle accidents who are unable to recover from financially irresponsible motorists. n3 Under these circumstances, we decline to insert words necessary to [*161] construe § 243H (a) (1) (i) as providing an exclusion for a claimant operating an uninsured motor vehicle owned by an insured other than himself.

n3 The insurer's reliance on Unsatisfied Claim & Judgment Fund of Md. v. Hamilton, 256 Md. 56, 259 A.2d 303 (1969), to show that this Court has construed § 243H (a) (1) (i) as excluding from coverage persons other than those specifically denominated in the statute is misplaced.  There, we interpreted the words "personal representative" appearing in § 243H (a) (1) (i) to include the widow and minor child of an insured who, at the time of the accident, was operating an uninsured motor vehicle owned by him.  The question in that case was whether claimants who stood in the place of the owner of an uninsured motor vehicle were excluded from coverage. In holding that under the statute they were excluded, we stated that the decisive criterion for recovery was the status of the uninsured owner.  We recognized that to permit a recovery by those standing in the owner's place under circumstances in which the owner himself could not recover, would produce an absurd and anomalous result.

   In Hamilton, the question involved, in essence, the exclusion of a claimant operating an uninsured motor vehicle which he himself owned.  It did not involve a question whether a claimant who was not the owner of an uninsured motor vehicle could be excluded, a matter which involves different policy considerations.  Hamilton is therefore inapposite.

[***17]

   The insurance policy in this case, because it provides an exclusion for an insured operating an uninsured motor vehicle owned by an insured other than himself, denies UM coverage to a class of persons who are required by § 541 (c) to be covered.  The policy's exclusion is not identical to that provided by § 243H (a) (1) (i).  Indeed, it is in conflict with the statute and is therefore invalid. Accordingly, the claimant is entitled to coverage under the policy's UM provision. n4

n4 In view of our decision, we need not consider the insurer's contention that under the insurance policy the claimant was not entitled to recover because the moped she was operating was an uninsured motor or highway vehicle.

   Judgment affirmed.

   Costs to be paid by appellant. 

JOHN J. HIRSCH et al. v. MARYLAND DEPARTMENT OF NATURALRESOURCES, WATER RESOURCES ADMINISTRATION 
No. 59, September Term, 1979
 
Court of Appeals of Maryland
 
288 Md. 95; 416 A.2d 10; 1980 Md. LEXIS 190

 June  24, 1980, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration and Clarification and Stay of Mandate Filed July 24, 1980; Denied August 11, 1980.

PRIOR HISTORY:  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Wray, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed and the case remanded to that court with instructions to affirm the judgment of the Circuit Court for Anne Arundel County.  The Maryland Department of Natural Resources, respondent and cross-petitioner, to pay costs.

CORE TERMS:  wetland, regulation, map, notice, secretary, filled, restoration, Wetlands Act, filling, clerk, water, fill, tidal, designated, invalid, final order, supplied, patent, deed, mean high tide, purchaser, recorded, actual notice, mailing, plat, navigable water, failure to file, regulations governing, et seq, beneath

COUNSEL: John J. Hirsch for appellants.

   Richard E. Rice, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and [***6] Thomas A. Deming, Assistant Attorney General, on the brief, for appellee.

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

* Orth, J., participated in the hearing of the case and in the conference in regard to its decision but retired prior to the adoption of the opinion by the Court.

 
OPINIONBY: ELDRIDGE

OPINION: [*97] [**11] By Chapter 241 of the Acts of 1970, presently codified as Maryland Code (1974), § 9-101 et seq. of the Natural Resources Article, n1 the General Assembly enacted the Wetlands Act of 1970, which substantially changed the statutory and common law privileges and responsibilities of owners of real property contiguous to bodies of tidal water in this state.  Finding that the despoliation or destruction of [*98] wetland areas by certain unregulated activities had adversely affected important ecological, economic, recreational and aesthetic interests (§ 9-102), the Legislature established a comprehensive plan providing for the restriction and regulation of various activities affecting wetlands in order to preserve and protect them.  The Wetlands Act directed the Secretary[***7] of Natural Resources to determine the landward boundaries of any wetlands and to promulgate rules and regulations governing certain activities which might alter or affect any wetlands located on private property.  The petitioners in this case, John, William and Robert Hirsch and their respective wives Mary, Elizabeth and Glenda Hirsch (all of whom shall hereafter collectively be referred to as Hirsch), owned five waterfront lots in Anne Arundel County.  [**12] After commencing to place fill dirt on these lots, Hirsch was told by agents of the Department of Natural Resources that the fill may have been placed in wetland areas in violation of the Wetlands Act of 1970 and certain rules and regulations adopted by the Secretary. The principal issue in this case is whether these purported rules and regulations adopted by the Secretary are invalid because of the Secretary's alleged failure to comply with the Act's provisions governing their promulgation.

n1 Before the enactment in 1974 of the Natural Resources Article, Chapter 241 was codified as Maryland Code (1957, 1970 Repl. Vol.), Art. 66C, § 718 et seq. Although some of the activities pertinent to this case occurred prior to the enactment of the 1974 Code, any differences in language between former Art. 66C and the present Natural Resources Article are not relevant to our resolution of this case.  Therefore, we shall in this opinion refer only to the present Natural Resources Article.

[***8]

   Before dealing with the facts and issue of this case, a brief summary of the Wetlands Act of 1970, and some of the changes which it made in the pre-existing law, may be helpful. n2 Under common law principles, title to the bed of navigable waters, defined as the land beneath the mean high tide mark of these waters, rests in the state for the benefit [*99] of its citizens, by virtue of the state's succession to the rights and title of the Lord Proprietor who had received the land by grant from the Crown of England, unless title to the land beneath such waters had been expressly granted to a private person.  See Harbor Island Marina v. Calvert Co., 286 Md. 303, 314, 407 A.2d 738 (1979); Bd. of Pub. Works v. Larmar Corp., 262 Md. 24, 35, 277 A.2d 427 (1971); Van Ruymbeke v. Patapsco Ind. Park, 261 Md. 470, 475-476, 276 A.2d 61 (1971); Browne, et al. v. Kennedy, 5 H. & J. 195 (1821); Maryland Declaration of Rights, Art. 5; 50 Opinions of the Attorney General 452, 454 (1965).  Navigable water has traditionally been defined in Maryland as water subject to the ebb and flow of the tide.  Van Ruymbeke v. Patapsco Ind. Park, supra, 261 Md. at 475. n3

n2 For a comprehensive history of the development of various aspects of the law relating to state and private ownership of the lands bordering on or lying under bodies of water, see Harbor Island Marina v. Calvert Co., 286 Md. 303, 314-319, 407 A.2d 738 (1979); Potomac Sand & Gravel v. Governor, 266 Md. 358, 364-366, 293 A.2d 241, cert. denied, 409 U.S. 1040, 93 S. Ct. 525, 34 L. Ed. 2d 490 (1972); Bd. of Pub. Works v. Larmar Corp., 262 Md. 24, 277 A.2d 427 (1971); Van Ruymbeke v. Patapsco Ind. Park, 261 Md. 470, 276 A.2d 61 (1971); Kerpelman v. Bd. of Public Works, 261 Md. 436, 445, 276 A.2d 56, cert. denied, 404 U.S. 858, 92 S. Ct. 109, 30 L. Ed. 2d 100 (1971); 50 Opinions of the Attorney General 452 (1965); Power, Chesapeake Bay in Legal Perspective, U.S. Dept. of Interior, Estuarine Pollution Study (1970); Salsbury, Maryland's Wetlands: The Legal Quagmire, 30 Md. L. Rev. 240 (1970).

[***9] 

n3 See, however, Owen v. Hubbard, 260 Md. 146, 152, 271 A.2d 672 (1970); Green, Tr. v. Eldridge, 230 Md. 441, 446, 187 A.2d 674 (1963); Wagner v. City of Baltimore, 210 Md. 615, 624-625, 124 A.2d 815 (1956), discussing certain of our cases which had applied both the traditional Maryland test as well as the federal test of being "navigable in fact," and found that, in many of the cases, the result would not have been altered if either test had been exclusively used. 

   Correspondingly, absent an express grant of the title to the land beneath navigable water, an owner of land bordering on navigable water was deemed to own the land only to the mean high tide mark.  Id. at 475.  In addition, the owner of land bordering navigable water was accorded certain other rights by statutory and case law.  Thus, he was entitled to any gain or increase in his land that was naturally caused, such as by the recession of the adjacent water or by the depositing of soil on his land by tidal action.  Moreover, he was also permitted to use the adjacent waters for artificial improvements to his property, such as [***10]by building wharves, bulkheads, piers, or under some circumstances placing fill in the waters, as long as the improvements did not interfere with the public's rights of navigation and fishing.  See Harbor Island Marina v. Calvert Co., supra, 286 Md. at 315-318; Bd. of Pub. Works v. Larmar Corp., supra, 262 Md. at 36-44; Code (1957, 1968 Repl. Vol.), Art. 54, §§ 45-46, which was replaced by the Wetlands Act of 1970.

   [*100] The Wetlands Act of 1970 modified these relationships between the state and the landowner with respect to the activities permitted on certain types of land and its adjacent waters. Stating that the dredging, filling and other similar activities had despoiled or destroyed some of the wetlands in this State, and that these activities threatened the existence of the remaining wetlands, the Act declares that it is the [**13] "public policy of the state . . . to preserve the wetlands and prevent their despoliation and destruction." Code (1974), § 9-102 of the Natural Resources Article. n4 Therefore, the Act provides a comprehensive plan for regulating the dredging and filling of the state-owned land beneath navigable waters, and, for the first time, [***11] the Act undertakes to regulate activities affecting privately owned wetlands.

n4 Hereinafter, all references to the Maryland Code will be to the Natural Resources Article unless express reference is made to other articles of the Code.

   The Wetlands Act establishes a bipartite scheme depending on whether the wetlands are state or private.  "State wetlands" are defined as
 
"any land under the navigable waters of the state below the mean high tide, affected by the regular rise and fall of the tide.  Wetlands of this category which have been transferred by the state by valid grant, lease, patent or grant confirmed by Article 5 of the Declaration of Rights of the Constitution shall be considered 'private wetland' to the extent of the interest transferred." (§ 9-101 (m), emphasis supplied.)
 
With respect to these wetlands, the Act broadly states: "[a] person may not dredge or fill on state wetlands, without a license." § 9-202 (a).  The Act describes the procedures for obtaining a license from[***12] the Board of Public Works and for judicial review of the Board's decision (§§ 9-201 -- 9-203).

   The regulatory plan for private wetlands is more elaborate, containing many conditions with regard to the [*101] prohibitions set forth and the actions of the state officials involved.  Private wetlands are defined as
 
"any land not considered 'state wetland' bordering on or lying beneath tidal waters, which is subject to regular or periodic tidal action and supports aquatic growth.  This includes wetlands, transferred by the state by a valid grant, lease, patent, or grant confirmed by Article 5 of the Declaration of Rights of the Constitution, to the extent of the interest transferred." (§ 9-101 (j), emphasis supplied.)
 
Section 9-101 (k) defines "regular or periodic tidal action" as "the rise and fall of the sea produced by the attraction of the sun and moon uninfluenced by wind or any other circumstance." Thus, as one commentator has observed, a private wetland does not have to be under the navigable water of the state or below mean high tide; instead, it may be located above mean high tide, and, therefore, on private land, as long as it borders on tidal water, [***13] is subject to some tidal action, and supports aquatic growth.  Salsbury, Maryland's Wetlands: The Legal Quagmire, 30 Md. L. Rev. 240, 252 (1970).

   The Act assigns the regulation of private wetlands to the Department of Natural Resources rather than to the Board of Public Works.  By § 9-301 (a), the Secretary of Natural Resources is directed to inventory and delineate the location of the landward boundaries of all wetlands and to prepare maps showing the boundaries.  The Secretary is also directed to promulgate "rules and regulations governing dredging, filling, removing, or otherwise altering or polluting private wetlands. The rules and regulations may vary as to specific tracts of wetlands, because of the character of the wetlands." § 9-302 (a).

   After completing the wetland boundary maps and formulating the proposed rules and regulations governing private wetlands in a county, the Secretary is instructed to hold a public hearing in that county.  He is further required to give notice of this hearing not only by publishing a notice in a newspaper generally circulated in the county, but also [*102] by mailing a copy of the notice and a copy of the proposed private wetlands[***14] rules and regulations to each owner, as shown on the tax records, of land designated on the map(s) as a wetland (§ 9-301 (b)).  After directing the Secretary to consider any testimony or other facts presented at the hearing, "the rights of every affected property owner, and the purposes" of the Act, the statute provides that
 
[**14] "the Secretary shall establish by order the landward bounds of each wetland and the rules and regulations applicable to it.  A copy of the order, together with a copy of the map depicting the boundary lines, shall be filed among the land records in every county affected after final appeal has been completed.  The Secretary shall give notice of the order to each owner of record of any land designated as wetlands by mailing a copy of the order to the owner by registered or certified mail.  . . ." (§ 9-301 (c), emphasis supplied.)
 
Section 9-304 permits any person with a recorded interest in land affected by the private wetlands regulations to seek further administrative review of the rules and regulations and the designation of his land(s) as wetland(s).  If dissatisfied with this decision, that person may seek[***15] judicial review to determine whether the rules and regulations are so restrictive as to deprive him of so much of the practical use of the land that it is an "unreasonable exercise of the police power so as to constitute a taking of property without compensation." § 9-305 (a).

   Section 9-306 (a) provides that any person intending to conduct on any wetland activity not permitted by the private wetlands regulations must apply to the Secretary of Natural Resources for a permit to conduct such activity.  In deciding whether to grant the permit, the Secretary is directed to consider, among other things, ecological factors, the public health and welfare, and the public policy of the Act (§ 9-306 (b)).  Provisions for administrative and judicial review of the decision to grant or deny the permit are set forth in §§ 9-307 and 9-308.

   [*103] Section 9-501 (a)-(c) states that the violation of the Act or of any private wetland "regulation adopted by . . . the Department pursuant to the provisions" of the Act is a misdemeanor punishable by fine or imprisonment.  In addition, § 9-501 (d) provides that a person who knowingly violates any provision of the Act "is liable to the state for restoration[***16] of the affected wetland to its condition prior to the violation if possible." n5
 
[*104] Finally, § 9-310 authorizes a [**15] court to "restrain any violation" of the Act in an action brought by the Department.

n5 As set forth in the Natural Resources Article, § 9-501, as amended, provides in pertinent part:
 
"§ 9-501. Enumeration.

   (a) First offense.  -- Any person who violates any provision of this title is guilty of a misdemeanor.  Unless another penalty is specifically provided elsewhere in this title, the person, upon conviction, is subject to a fine not exceeding $500, or imprisonment not exceeding three months, or both, with costs imposed in the discretion of the court.

   (b) Second or subsequent offense.  -- Any person found guilty of a second or subsequent violation of any provision of this title . . . is subject to a fine not exceeding $1,000, or imprisonment not exceeding one year, or both . . . .

   (c) Violation of rule or regulation.  -- In addition to any administrative penalty provided in this title, violation of any rule or regulation adopted by any unit within the Department pursuant to the provisions of this title is a misdemeanor and is punishable as provided in subsections (a) and (b) of this section.

   (d) Additional penalty.  -- Any person who knowingly violates any provision of this title is liable to the state for restoration of the affected wetland to its condition prior to the violation if possible.  The court shall specify a reasonable time for completion of the restoration."
 
With respect to the criminal penalties, subsections (a) and (b) impose a fine or imprisonment, or both, for a violation of "any provision of this title." Subsection (c) also imposes these criminal penalties for a "violation of any rule or regulation adopted . . . pursuant to the provisions of this title." With respect to the additional penalty requiring restoration of a wetland, however, subsection (d) provides for this penalty only for a violation of "any provision of this title," and there is no subsection, equivalent to subsection (c), which provides for the imposition of this additional penalty for a knowing violation of any of the applicable rules and regulations.

   We note, however, that as originally enacted in Ch. 241 of the Acts of 1970, and as set forth in Code (1957, 1970 Repl. Vol.), Art. 66C, § 730, the Act provided for restoration upon a knowing violation of either the "rules and regulations or any provision of this subheading." Although a provision imposing restoration for a violation of the rules and regulations was not included in § 9-501 when the Natural Resources Article was enacted, the Revisor's Note does not contain any indication that a substantive change was intended.  In any event, because no issue has been presented in this case as to whether restoration liability may be imposed for a knowing violation of only rules and regulations, we need not address the matter at this time.

[***17]
 
   We turn now to the facts of the instant case.  The five waterfront lots that are involved in this litigation border on Cornfield Creek, a tributary of the Magothy River, in Anne Arundel County.  The chain of title to these lots is traceable to an 1814 patent from the State of Maryland to Vachel Phillips.  When the Wetlands Act was enacted in 1970, these lots were owned by the Emerson Development Company.  In September 1972, Emerson conveyed the lots to Ann Szymanski.  The deed, however, was not recorded in the land records until October 31, 1972.

   Pursuant to the directions in §§ 9-301 (a) and 9-302 (a), the Department of Natural Resources began to inventory and prepare maps defining the boundaries of wetland areas and to formulate the proposed private wetlands regulations. This task was completed in 1972.  As required by § 9-301 (b), the Department mailed, on October 25, 1972, a copy of the proposed private wetlands regulations and the individual notices of the hearing concerning the designation of wetland areas to the owners, as shown by the tax records, of property located in Anne Arundel County that had been designated on the proposed map(s) as wetlands. Also as required by[***18] § 9-301 (b), the Department published notices of the hearing in several newspapers generally circulated in Anne Arundel County.  The five lots at issue here were tentatively designated as containing private wetlands. Because the deed conveying these five lots from the Emerson Development Company to Ann Szymanski was not recorded until October 31, 1972, however, Emerson, and not Mrs. Szymanski, was listed as owner of the lots on the tax records.  Consequently, the Department sent the notice to the address listed in the tax records for Emerson's resident agent.  Because the resident agent had moved from that address four years earlier, neither he nor Emerson appear to have ever received the notice.

   After the hearing was held, the Secretary, on January 25, 1973, signed the final order establishing the boundaries of [*105] each private wetland in Anne Arundel County and adopting the applicable private wetlands regulations. Attempting to comply with the directions in § 9-301 (c), in September 1973 the Department purported to mail the individual notice of the order to each owner of record of land designated as a wetland. Although this mailing occurred approximately ten months[***19] after the notices of the proposed hearing had been mailed, and nearly eight months after the Secretary had signed the final order, the Department did not re-examine the tax records for any intervening changes in ownership but, instead, relied on the same list of owners that had been prepared ten months earlier for the mailing of the hearing notices. Although Mrs. Szymanski was by this time listed as the owner of record of the five lots, the notice of the final order was nevertheless again sent to Emerson at the address from which its resident agent had moved.  There is some evidence that the resident agent's secretary may somehow have received this notice, but it is clear that the agent did not notify Mrs. Szymanski. Therefore, she failed to receive the notice that the lots had finally been designated as private wetlands and were subject to the applicable regulations.

   In addition, § 9-301 (c) requires that a copy of the order and the maps delineating the boundary lines of wetlands areas "shall be filed among the land records in every county affected." A representative of the Department testified that, in August 1973, he delivered a copy of the Secretary's order establishing the[***20] wetlands boundaries for Anne Arundel County, the wetlands maps for the county, and the private wetlands rules and regulations, to the Clerk of the Circuit Court for Anne Arundel County.  It is undisputed, however, that neither the order nor the maps nor the rules and regulations were ever filed or referred to in the land records.  Instead, the maps were placed in a file cabinet drawer in an area inaccessible to the public or to title searchers. Whether the copies of the order or of the private wetlands regulations were also placed in the file cabinet is unclear, but [**16] these documents were eventually misplaced or lost.  It appears that it was not until May 1975 that the order, the rules and [*106] regulations, and an index to the wetlands maps, were placed on a wall in the clerk's office in such a manner that they might come to the attention of the public or a title searcher.  However, it was not until at least February 1977 that a list was ever posted of the names of each owner of property determined by the Secretary's order to contain wetlands.

   The petitioners in this case, the Hirsches, purchased the five lots on Cornfield Creek from Mrs. Szymanski in July 1974.  Prior[***21] to that time, Hirsch engaged Mrs. Nelker, a professional title searcher, to perform a title search on the lots.  She reported that the title was free of any cloud. She did not tell Mr. Hirsch that the lots had been designated as wetlands. Moreover, she testified that there was no way that she could possibly have learned of this fact by a title search.  In late July or early August, Hirsch began clearing debris and trees from the lots.  On August 9, 1974, Mrs. Hirsch received a telephone call from a Mr. Boone of the Department of Natural Resources.  Mrs. Hirsch testified that Boone never mentioned the subject of wetlands. Mr. Boone, however, testified that he had advised Mrs. Hirsch that her property had been inspected by the Department in response to a complaint, and that, although the Wetlands Act had not been violated at that time, a wetlands license or permit should be applied for if they intended to fill or clear debris beyond that which had already occurred.

   Thereafter, Hirsch began to place fill dirt on the property.  Responding to another telephone complaint, inspectors for the Department revisited the property in late November and early December 1974, and determined that [***22]fill had been placed on private wetlands without a permit, in violation of the applicable private wetlands rules and regulations. n6 [*107]Subsequently, an administrative order was issued on December 12, 1974, by the Water Resources Administration of the Department of Natural Resources, ordering Hirsch to discontinue any filling activities on the property and to submit a plan for the restoration of the property to its previous condition.  At Hirsch's request, an informal administrative hearing relating to the order was held.  Afterwards, the Department again concluded that a violation had occurred and ordered Hirsch to submit a plan for restoration of the wetlands.

n6 Section IV A of the private wetlands regulations for Anne Arundel County adopted by the Secretary provides:

   "Except where otherwise authorized in Section III above or subsequent to a permit issued pursuant to Section VI herein:

   A. No person shall fill, place, dump or discharge on the wetlands encompassed in this Order any loam, peat, sand, gravel, soil, or other similar substance; or any trash, garbage, debris, junk, or other polluting substance."

[***23]

   After Hirsch did not comply, the Department instituted the present action in the Circuit Court for Anne Arundel County by filing a bill of complaint for a mandatory injunction requiring Hirsch to restore the wetlands. The bill alleged that Hirsch had knowingly filled both state and private wetlands without a license or permit.  Hirsch denied both that any wetlands had been filled and, if they had been filled, that it was done knowingly.  In addition, Hirsch argued that the Department's private wetlands rules and regulations, purporting to regulate the filling of private wetlands, were invalid because the Department had failed to comply with the statutory procedure for promulgating the regulations. According to Hirsch, the Department failed to comply with § 9-301 (c)'s requirements that copies of the final order, establishing the actual boundaries of wetlands, and maps "depicting" those boundaries be "filed among the land records" and that notice of the final order be mailed to each owner of record of affected land.  With respect to the latter contention, Hirsch pointed out that the notice had been sent to the Emerson Development Company even though Mrs. Szymanski was at that time[***24] listed as the owner of record. Finally, Hirsch argued that the State's grant of land, including the lots at issue here, to Vachel Phillips [**17] by the 1814 patent had included some of the land under the waters of Cornfield Creek.  Because the definition of state wetlands in § 9-101 (m) excludes wetlands under navigable water which have been transferred by the State, Hirsch contended that any wetlands that were filled could only be private wetlands.

   [*108] At trial, in order to prove that both state and private wetlands had been filled, the State presented numerous expert witnesses describing certain types of vegetation growing on the lots, of a type characteristically found in tidal wetlands. The State also presented tidal data designed to establish that the property was in a tidal area and test results analyzing the marshland content of soil borings from filled areas of the property.  In a written memorandum and order, the trial court found as a fact that the Hirsch property had contained wetlands prior to fill and that fill had been placed over some of these wetlands. The court also found, however, that the State had failed to meet its burden of proof that state wetlands[***25] had been filled. According to the court, the State's evidence had only showed the topography of the land and the tidal levels as they were in 1976, when the tests had been made, but had failed to show the topographical or tidal conditions as they existed in 1974 when the filling took place.  Thus, the court found that the filled lands were private wetlands. n7 Finally the court agreed with Hirsch that the private wetlands rules and regulations were invalid. The court pointed out that § 9-301 (c) required that the wetlands maps and the order must be filed among the land records.  According to the court, the Wetlands Act and the private wetlands regulations created, in effect, a restrictive covenant applicable to the property.  Therefore, the court concluded that the order designating the property as wetlands, the maps, and the private wetlands regulations, were within the scope of Code (1974), § 3-101 (a) of the Real Property Article, which requires that no "declaration or limitation of use . . . or deed may pass or take effect unless the deed granting it is executed and recorded." Because the Department failed to record the maps and order "in a manner which would put a prospective[***26] owner on notice of the restriction," the court denied the State's request for restoration and dismissed the bill of complaint.  The State took an appeal to the Court of Special Appeals.

n7 Having decided to treat them as private wetlands because of the State's failure to show that they were below mean high tide, the circuit court deemed it unnecessary to determine whether, as Hirsch contended, the 1814 patent to Phillips had actually granted land under Cornfield Creek which was below mean high tide.

   [*109] The Court of Special Appeals reversed the judgment of the circuit court.  Maryland Dep't v. Hirsch, 42 Md. App. 457, 401 A.2d 491 (1979). First, the intermediate appellate court concluded that the trial court's finding that wetlands had been filled was not clearly erroneous.  Id. at 471. Second, although agreeing with Hirsch that the Department had not complied with § 9-301 (c) when it failed to notify Mrs. Szymanski, the then record owner of these lots, that the order designating the lots as[***27] wetlands had been adopted, the court held that this failure did not render the private wetlands regulations invalid as to Hirsch.  Because Hirsch was not the record owner of the lots at the time the notice was given, the Court of Special Appeals held that Hirsch did not have standing to complain of the Department's noncompliance with the Wetlands Act provisions in this regard.  42 Md. App. at 474-475. Third, the court rejected the trial court's conclusion that the recording provision in § 3-101 of the Real Property Article was applicable in these circumstances.  The intermediate appellate court reasoned that § 3-101 speaks in terms of a "deed" imposing a restriction, which means a document between private parties rather than an administrative regulation. 42 Md. App. at 475-476.

   Finally, the Court of Special Appeals held that § 9-301 (c), requiring that a copy of the order and maps establishing the wetlands boundaries "shall be filed among the land records," had been violated.  42 Md. App. at 479-480. [**18] The court stated that "filing" the maps in an inaccessible cabinet, and either misplacing or losing the order and the private wetlands regulations, was not compliance with[***28] the requirement that the order and maps be filed among the land records.  However, the Court of Special Appeals took the position that it did not have to decide whether the noncompliance with § 9-301 (c) rendered the private wetlands regulations invalid as to Hirsch.  In the court's view, even if the failure to properly file the order and maps meant that Hirsch had not been given notice from the land records that the property contained private wetlands and was subject to the regulations, Hirsch had received actual notice, before any [*110] filling occurred, from Mr. Boone's telephone call to Mrs. Hirsch advising her that it would be necessary to secure a wetlands permit.  42 Md. App. at 483-484. n8 The Court of Special Appeals concluded that, because of this actual notice from the telephone call, Hirsch did not have "standing" to complain about a lack of notice resulting from the Department's failure to comply with the filing requirements of § 9-301 (c).  42 Md. App. at 484.

 n8 As previously mentioned, the content of the telephone conversation between Mr. Boone and Mrs. Hirsch was disputed at trial.  Mr. Boone testified that he informed Mrs. Hirsch that, although a wetlands violation had not occurred at that time, a wetlands permit would be required if any fill was to be placed on private wetlands. Mrs. Hirsch, however, testified that Mr. Boone did not mention the subject of wetlands, but only advised her that a grading or sediment control permit from Anne Arundel County might be required.

   The trial court did not at any time expressly resolve the credibility issue presented by the dispute in the testimony about the actual content of the telephone conversation.  In a comment in an introductory part of its opinion, the trial court did refer to a warning by a Water Resources Administration investigator to Mrs. Hirsch about the possible presence of wetlands on the property.  However, this same comment of the trial court also stated that the warning did not occur until after some filling of the property had begun.  At no place in its opinion did the trial court expressly make a finding that Hirsch had received actual notice before any filling of wetlands had occurred. Furthermore, it cannot be determined from the trial court's opinion, and the evidence is in conflict, whether Hirsch had received actual notice before he began filling wetlands. Consequently, if the critical question were whether Hirsch had received actual notice before any wetlands were filled, then the Court of Special Appeals should have remanded this case to the circuit court for a factual finding by the circuit court on this question.  In light of our disposition of the case, however, that course is unnecessary.

[***29]

   Thereafter, this Court granted both Hirsch's petition and the State's conditional cross-petition for a writ of certiorari.  In the petitions and briefs, both sides have raised several arguments supporting their respective positions.  In our view, however, most of these contentions need not be reached. 

   The principal, and we believe dispositive, argument raised by Hirsch is that the Department's failure to comply with § 9-301 (c)'s requirement to file the maps and order among the land records rendered the Anne Arundel County private wetlands regulations invalid during the times pertinent to this case. Consequently, Hirsch argues, the regulations cannot serve as the basis for an order compelling him to [*111] restore the wetlands. The State, on the other hand, argues that the Court of Special Appeals erred in finding a violation of § 9-301 (c).

   Section 9-301 (c) provides that a "copy of the order, together with a copy of the map depicting the boundary lines, shall be filed among the land records in every county affected." The State claims that this language does not mean that the maps and order were to be recorded or indexed in the land records.  Rather, the State argues[***30] that the statute only required that the maps and order be delivered by the Department to the Clerk of the Court.

   We disagree.  Section 9-301 (c) does not say only that the maps and order should be filed in the clerk's office.  If that were the language used, it might arguably be satisfied by a mere delivery of the maps and order to the clerk regardless of what may thereafter happen to them, although even then we would have serious doubts.  The word "file" connotes something more than mere delivery to the clerk. As this Court [**19] observed in Levy v. Glens Falls Indem. Co., 210 Md. 265, 273, 123 A.2d 348 (1956):
 
"The word 'file' is derived from the ancient custom of filing or fastening writs and other exhibits on a wire or thread in courts and offices for safekeeping and ready reference.  Thus a paper is said to be 'filed' when it is delivered to the proper officer and received by him to be kept on file.  In modern usage, the 'filing' of a paper consists in placing it in the custody of the proper official who makes the proper indorsement thereon.  The word 'filed' carries with it the idea of permanent preservation of a paper so delivered and received, so that it [***31]  may become a part of the public record." (Emphasis supplied.)

   However, the language of § 9-301 (c) expressly requires something more than filing with the clerk's office.  The Legislature stated that the maps and order "shall be filed among the land records." (Emphasis supplied.) "Among" has been defined as "in or through the midst of"; "mixed or intermingled with"; and "surrounded by." Webster's New [*112] International Dictionary, p. 88 (2d ed. 1961).  The term "land records" has been used to refer to the books in which deeds conveying property are recorded. See § 3-301 (a) of the Real Property Article ("shall record every deed and other instrument affecting property in well-bound books to be named 'Land Records'").  Although the Legislature has used the words "land records" to refer to things other than the deed books, the term invariably means something permanent like a book.  For example, § 3-109 of the Real Property Article provides:

   "Every clerk shall receive, index, and file in a substantial loose-leaf book linen-backed or other durable-backed copies of plats showing property or rights-of-way to be acquired or conveyed by the State Roads Commission [***32]and the State Highway Administration, and when so filed and indexed, the plats shall be and constitute a part of the land records of the county in which filed.  . . ." (Emphasis supplied.)
 
Similarly, § 3-108 (b) of the Real Property Article provides:

   "If the owner of land in the state subdivides his land . . . and desires, for the purpose of description and identification, to record a plat of the subdivision among the land records of the county where the land lies, the clerk of the court shall accept and record the plat as prescribed in this section.  . . ." (Emphasis supplied.)
 
Section 3-304 then states: "The clerk shall fasten securely one copy of each plat described under § 3-108 in a book provided for that purpose or shall record the plat."

   We believe that the Legislature, by expressly stating that the maps and order "shall be filed among the land records," clearly intended that the maps and order were to be entered into some sort of permanent book, binder or file that would not only be accessible to, but would also likely be found by, one investigating the title to any land affected by the order.  There may be several different methods of filing[***33] and [*113] indexing which would comply with this standard.  Nevertheless, placing the maps in a file cabinet in an area inaccessible to the public, with no references or index directing a title searcher to the drawer, was not compliance.  We agree with the Court of Special Appeals that there was a violation of the Act's requirement that the maps and order be filed among the land records.

   The next question concerns the effect of the violation of § 9-301 (c).  The State argues that, notwithstanding any failure to properly file the maps and order, the private wetlands regulations are nevertheless valid and effective because the Act did not expressly condition their validity upon filing.  As previously mentioned, the Court of Special Appeals did not decide whether the failure to file affected the validity of the regulations because it found that Hirsch had received actual notice of the presence of wetlands before the filling of wetlands had occurred, and therefore it concluded that he did not have standing to complain about the failure to file among the land records.  We disagree with both positions.

   [**20] The implicit premise of the Court of Special Appeals' "standing" analysis[***34] is that the purpose served by the statute's filing requirement was to give notice to existing landowners, who had not previously had notice, in order that they would be aware of the requirements of the regulations before they began any filling on their wetlands. Although this is a purpose of some of the other notice requirements in the Wetlands Act, it obviously is not the purpose of the requirement to file the maps and orders among the land records.  The general purpose of the land records is not to inform existing property owners concerning what they may do on their property. They presumably know this from their deeds, statutory provisions, and other forms of notice. Instead, the purpose of the land records is to alert prospective purchasers, creditors or others contemplating the acquisition of some type of interest in the land.  Thus, the preamble of the first Maryland statute broadly providing for registration of various documents among the land records recites that such registration "would very much tend to the [*114] security of creditors and purchasers." Ch. 14 of the Acts of 1766, quoted in Hays v. Richardson, 1 G. & J. 366, 379 (1829). See, e.g., Harbor [***35]  Co. v. Smith, 85 Md. 537, 543-544, 37 A. 27 (1897); Hoffman and Flack, Adm'rs v. Gosnell, Trustee, et al., 75 Md. 577, 590, 24 A. 28 (1892); Sitler, Ex'x v. McComas, et al., 66 Md. 135, 138, 6 A. 527 (1886); Nelson v. Hagerstown Bank, et al., 27 Md. 51, 73 (1867); U.S. Ins. Co. v. Shriver et al., 3 Md. Ch. 381, 383-384 (1851). Consequently, the obvious purpose of the statutory requirement that the private wetlands maps and order be filed among the land records was to provide notice to a prospective purchaser that the real estate was subject to the private wetlands regulations, so that the prospective purchaser would have the opportunity to consider whether he would want to acquire the affected property under these conditions.

   Because the maps and order had not been filed among the land records as of the time Hirsch purchased the property, neither Hirsch nor other prospective purchasers at that time could have known that the five lots had been subjected to the private wetlands regulations. The property may have been unsuitable for Hirsch's intended purpose unless the private wetlands on the property could be filled. Therefore, if Hirsch had known that the wetlands[***36] could not be filled, or was unwilling to gamble that he could eventually obtain a permit, then Hirsch may not have purchased these lots.  At the very least, he was denied the opportunity to make this decision.  Consequently, Hirsch has standing to assert that the Department's failure to file the maps and order rendered the regulations affecting this property invalid.

   Moreover, apart from his status as a prospective purchaser, Hirsch has contended that, because of the Department's failure to file the maps and order, the private wetlands regulations affecting his land were not validly promulgated and, therefore, are totally void.  In this case, the Department is seeking a determination, based on those regulations, that Hirsch is liable for the restoration of his private wetlands to their previous condition.  It would seem that a person may not be ordered to restore, or bear the costs [*115] of restoration of, filled wetlands, if the administrative regulations allegedly prohibiting the filling were not validly promulgated, were void on their face, and thus were not in effect.  The Wetlands Act itself appears to give standing to challenge a rule or regulation to "[a]ny person who[***37] has a recorded interest in land affected by any rule or regulation promulgated under this subtitle," §§ 9-304 and 9-305.  For this reason also, we believe that Hirsch has standing to contend that the regulations are totally invalid because they were not promulgated in compliance with the statutory requirements.

   The State contends that the private wetlands regulations are valid regardless of whether they were lawfully filed.  The State initially argues that the restrictions imposed by the regulations on the use of private property are similar to zoning regulations, for which filing among the land records has not been construed as a condition precedent to their validity.  However, [**21] there is no express requirement in the zoning laws that zoning restrictions must be filed among the land records.  See Code (1957, 1978 Repl. Vol.), Art. 66B, § 1.00 et seq.; Art. 66D, § 7-108 et seq. Moreover, zoning regulations are generally applicable throughout a geographical subdivision, and, therefore, most persons are aware that a parcel of property in that county or municipality is subject to some form of zoning.  In contrast, the private wetlands regulations are applicable[***38] only to the specific tracts of land affected by those regulations. Consequently, absent some form of notice such as filing among the land records, a prospective purchaser of such land would not be expected to know that the property had been subjected to the private wetlands regulations.

   The State also argues that § 9-301 (c) does not expressly condition the validity of the private wetlands regulations on compliance with the mode prescribed for their promulgation.  The State relies on Quynn v. Carroll's Adm'r., 22 Md. 288 (1864), in which this Court held that the failure to record "among the records of the County" a certificate, as required by statute, attesting that a commissioner had taken the oath and was therefore qualified to take depositions, did not render the commissioner unqualified.  The certificate had [*116] been placed in a bundle of papers in the county circuit court clerk's office.  The Court stated that the "filing of the paper in the proper office by the clerk, was a recording within the meaning of the Act." Id. at 294. The State urges that this case stands for the proposition that the failure to record or properly file an official document does not[***39] render the document invalid. We believe that Quynn is inapposite.  As the Court of Special Appeals remarked in this case with respect to this very contention by the State, Maryland Dep't v. Hirsch, supra, 42 Md. App. at 482, "There is a significant difference between ensuring that adequate public notice is given of restrictions on the use of land and seeing to it that some record is made of the fact that a minor functionary has taken an oath of office."

   Section 9-301 (c) clearly states that the maps and order "shall be filed among the land records." (Emphasis supplied.) In many recent cases, this Court has stated that "shall" is ordinarily presumed to have a mandatory meaning. See, e.g., Kent v. State, 287 Md. 389, 412 A.2d 1236, 1238 (1980); In re James S., 286 Md. 702, 708, 410 A.2d 586 (1980); State v. Hicks, 285 Md. 310, 334, 403 A.2d 356 (1979), and cases there cited.  Thus, in unambiguous terms, the Act mandated that the maps and order were to be filed among the land records.  As previously discussed, the primary purpose of the statutory mandate was to notify prospective purchasers (and perhaps certain creditors or others interested in the property) [***40] that the property has been finally designated as containing private wetlands and was thereby subjected to the restrictions imposed by the regulations. If the Legislature had intended, as the State suggests, that the regulations were to be effective without the filing of the maps and order, then little purpose would be served by the statutory requirement.  Such a construction would render the statutory language, and its underlying purpose, surplusage.  This is a result which courts strive to avoid. See, e.g., Collier v. Connolley, 285 Md. 123, 132, 400 A.2d 1107 (1979), and cases there cited.  Furthermore, conditioning the validity of the rules and regulations upon compliance with the statute's filing requirements would appear to be the only effective sanction for a failure to fulfill these requirements.

   [*117] In determining the effect of the Department's default, it is noteworthy that the violation of the statutory requirements for promulgating the regulations went beyond the failure to file the maps and order among the land records.  Section 9-301 (c), after directing the Secretary of Natural Resources to establish by order the bounds of each private wetland and the regulations [***41]applicable to it, and directing him to file the maps and order among the land records, goes on as follows:
 
"The Secretary shall give notice of the order to each owner of record of any land [**22] designated as wetlands by mailing a copy of the order to the owner of record by registered or certified mail."
 
As earlier pointed out, it was not until eight months after signing the final order that the Secretary mailed the order to individual property owners.  Then, instead of mailing the final order to the owners of record at that time, the Secretary used the same mailing list which had been compiled for sending notices of the proposed regulations ten months previously.  It was because of this default that some of the existing private wetlands owners (and thus not only prospective purchasers like Hirsch) failed to receive notification that their land was subject to the regulations. Mrs. Szymanski, Hirsch's predecessor, fell into this category.  Consequently, she was effectively denied her statutory right under §§ 9-304 and 9-305 to appeal the Secretary's final order to the Board of Review of the Department of Natural Resources and to seek judicial review in the courts. [***42] And Hirsch, as her successor, was deprived of any benefit which an appeal by Mrs. Szymanski might have accomplished. Moreover, if Mrs. Szymanski had known of the Secretary's order and decided not to take an appeal, at least she would have been able to inform Hirsch before the purchase that the property was encumbered by the regulations. Although it is not known whether in fact she would have done so, the Department's failure to notify her made it impossible. n9

 n9 The Court of Special Appeals, while agreeing that the Secretary's failure to notify Mrs. Szymanski was a violation of the statute, held that Hirsch, not being the owner of record at the time, had no standing to complain of the violation.  This holding is dubious, particularly in light of the possible impact upon Hirsch of the failure to notify Mrs. Szymanski.

   [*118] In many situations where a statute mandates specific notice requirements in connection with finalizing proposed administrative action, this Court has held that the failure to comply[***43] with such requirements invalidates the administrative action.  See, e.g., Garrett County v. Bolden, 287 Md. 440, 413 A.2d 190, 194 (1980); Williams v. Public Service Comm'n, 277 Md. 415, 354 A.2d 437 (1976); Bethesda Management Serv. v. Dep't, 276 Md. 619, 626-629, 350 A.2d 390 (1976); Rasnake v. Bd. of County Comm'rs, 268 Md. 295, 300 A.2d 651 (1973); Md. Tobacco Grow. v. Md. Tob. Auth., 267 Md. 20, 296 A.2d 578 (1972). Of course, the effect of noncompliance in each case depends upon the legislative intent reflected in the particular statute involved and the nature of the violation.

   In the present case, considering the mandatory language set forth in § 9-301 (c) of the Wetlands Act, and the legislative concern for the interests of private property owners and prospective purchasers, we believe that administrative compliance with the notification and filing requirements of § 9-301 (c) is a condition precedent to the validity of the regulations governing private wetlands. Because § 9-301 (c) had not been complied with at the time Hirsch filled his property, these 1973 purported regulations for Anne Arundel County private wetlands furnished no basis for ordering[***44] a restoration of the land to its prior condition. n10

n10 This holding disposes of all issues in the case with one exception.  As indicated earlier in this opinion, the circuit court found as a fact that the State had failed to meet its burden of proving that any state wetlands had been filled, and that, therefore, all of the filled lands were private wetlands. Both in the Court of Special Appeals and in this Court, the State has maintained that the circuit court's finding was in error.  Because of its holding that restoration of the wetlands was required even if private wetlands were filled, the Court of Special Appeals stated that it need not reach the issue concerning state wetlands. However, the Court of Special Appeals, relying in part on evidence which the trial court did not consider, namely the 1814 patent, "observe[d]" that the circuit court's finding, that private wetlands only were filled, was not "clearly erroneous." 42 Md. App. at 472 n. 8.

   Our review of the evidence, without considering the 1814 patent, convinces us also that the trial court's finding of fact cannot be deemed clearly erroneous under Maryland Rule 886.  Moreover, if the patent be considered, it merely reinforces the trial court's ultimate finding of fact.  Consequently, there is no merit to the argument that state wetlands were filled.

[***45]

   Judgment of the Court of Special Appeals reversed and the case remanded to that court with instructions to affirm the judgment of the Circuit Court for Anne Arundel County.

   The Maryland Department of Natural Resources, respondent and cross-petitioner, to pay costs. 

WILLIE FREDERICK BRADY v. STATE OF MARYLAND 
No. 71, September Term, 1979
 
Court of Appeals of Maryland
 
288 Md. 61; 415 A.2d 1126; 1980 Md. LEXIS 191

 June  23, 1980, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Goudy, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed and case remanded to that court for further proceedings consistent with this opinion.  Costs to be paid by Anne Arundel County.

CORE TERMS:  speedy trial, actual prejudice, balancing test, presumption of prejudice, pending charge, unaware, balancing process, ignorance, weighed, speedy trial right, breaking and entering, arraignment, pre-trial, memory, presumptively prejudicial, constitutional right, triggering, presume, intermediate, indictment, awareness, Sixth Amendment, constitutional dimension, determinative, viewing, Criminal Law, speedy trial claim, motion to dismiss, bench warrant, demonstration

COUNSEL: Michael R. Malloy, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

   F. Ford Loker, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.

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

OPINIONBY: ELDRIDGE

OPINION: [*62] [**1126] In this criminal case involving an alleged denial of the constitutional right to a speedy trial, the defendant was unaware of the charge pending against him for most of the period of delay.  Because of this circumstance, the[***3] Court of Special Appeals apparently did not employ the normal balancing test, weighing all of the various factors relevant to the trial delay.  Instead, it held that, absent knowledge of the pending charge, a showing of actual prejudice resulting from the delay was necessary for a dismissal of the charge on speedy trial [**1127] grounds.  Because, in our view, this holding is in error, we shall reverse.

   The defendant, Willie Frederick Brady, was arrested on June 7, 1977, near the scene of an apparent breaking and entering in Anne Arundel County.  He was charged with breaking and entering and released on bail.  On June 19, 1977, Brady received the following letter from the District Court, sitting in Anne Arundel County:

   "This is to advise you that the above charge(s) [Break & Enter] against you had been dismissed in the District Court.  The State's Attorney's office in Annapolis has failed to comply as to whether this case would be tried in District Court or the Circuit Court . . . ."

   Unknown to Brady, however, on August 22, 1977, he was indicted for the same offense by an Anne Arundel County grand jury.  The arraignment was set for September 2, 1977, [*63] and a[***4] notice of the indictment and a summons for the arraignment were sent to Brady's last known address.  Both were returned undelivered.  When Brady did not appear on the date set for the arraignment, a bench warrant was issued for his arrest.

   Brady was held in the Baltimore City jail from November 1977 to May 29, 1978, on an unrelated charge. n1 On May 29, 1978, upon Brady's release from the Baltimore City jail, Anne Arundel County authorities, pursuant to a detainer that had been lodged against him, transported Brady to the Anne Arundel Detention Center.  Brady was arraigned in the Circuit Court for Anne Arundel County on the breaking and entering charge on June 9, 1978; then, for the first time, he learned of the reason for the detainer; and at the arraignment he moved for a speedy trial. A trial date of July 25, 1978, was set.  On July 14, 1978, Brady filed a motion to dismiss the indictment for lack of a speedy trial. When the case was called for trial on July 25, 1978, the State sought a postponement because one of its witnesses, a police officer, was absent.  The trial court, over the defendant's objection, granted the postponement.

n1 Brady was being held in Baltimore City on a charge of larceny after trust. On January 5, 1978, he moved for a speedy trial on that charge.  On May 29, 1978, he pleaded guilty to larceny after trust, was given a suspended sentence, and ordered to pay restitution.

[***5]

   Brady was finally tried on August 8, 1978, was found guilty by the jury of breaking and entering, and was sentenced to one year's imprisonment.  At that time, the trial court denied his motion to dismiss on speedy trial grounds because Brady had failed to show actual prejudice.

   Brady appealed to the Court of Special Appeals, claiming a denial of the right to a speedy trial and raising three other issues as well.  The intermediate appellate court affirmed the conviction in an unreported opinion. With regard to the speedy trial contention, the Court of Special Appeals initially stated that
  
"we can find little, if any, justification or excuse for the delay.  There is no evidence that the slightest attempt was made to notify appellant of his [*64]indictment. Even the bench warrant issued by the court on September 2, 1977, presumably was ignored by everyone until 'placed in file' on May 17, 1978, without any effort expended to serve it or, as charged by it to 'have his body before the Circuit Court for Anne Arundel County' to answer for his failure to appear.  Such seeming unconcern by the sheriff, who was admonished 'Hereof fail not at your peril . . . .', not only constituted[***6] a disregard of appellant's speedy trial rights, but appears, without any explanation, to be an affront to the court's order."

   The appellate court then turned to the matter of prejudice, saying:
 
"We seek in vain for prejudice.  That which is ordinarily presumed, . . . [citation omitted], becomes more elusive without awareness that a charge is pending."
 
After pointing out that there was no showing of actual prejudice from the delay, the court again indicated that it was "difficult" to presume prejudice when the defendant did not know of the charge.  The Court of [**1128] Special Appeals concluded by holding "that in the absence of knowledge of a pending charge, some actual prejudice must accompany the delay to compel a dismissal." This Court granted the defendant's petition for a writ of certiorari which presented a single question as follows:

   "Did the Court of Special Appeals err by holding that, where a defendant was not aware of a pending charge, actual prejudice must be proved to compel dismissal of the charge for denial of a speedy trial?"

   The holding of the Court of Special Appeals made a single factor, the failure to show actual prejudice, absolutely[***7] determinative of the speedy trial issue in this case.  The court seemed to say that when a defendant is unaware of the pending charge, a long delay is not presumptively prejudicial, thereby triggering the normal balancing [*65] process. Instead, according to the court below, if the defendant is unaware of the charge, a showing of actual prejudice is a necessary condition for dismissal on speedy trial grounds.  In our view, the Court of Special Appeals' approach is not supported by reason or authority.  It is inconsistent with the speedy trial opinions in the Supreme Court and in this Court during the past several years.  In addition, the specific holding of the intermediate appellate court is directly contrary to the cases throughout the country involving the circumstances of a defendant who is unaware of the pending charge.

   Barker v. Wingo, 407 U.S. 514, 516, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), is, of course, the case which for the first time "set out the criteria by which the speedy trial right is to be judged." We have extensively reviewed the Barker opinion in several cases, n2 and thus shall only summarize it briefly here.  The Supreme Court in Barker rejected[***8] the suggested "inflexible approaches," based on one or another single circumstance being controlling in deciding whether a defendant had been denied his Sixth Amendment right to a speedy trial, 407 U.S. at 529. Instead, the Court held that when the delay is of a sufficient length, it becomes "presumptively prejudicial," thereby triggering a "balancing test [which] necessarily compels courts to approach speedy trial cases on an ad hoc basis." Id. at 530. The Court identified four factors to be weighed, although indicating that these are only some of the factors and that others may be significant in particular cases. n3 They are the length of the delay, the reasons for the delay, the defendant's assertion of his speedy trial right, and the presence of actual prejudice to the defendant.  Id. at 530-533. After discussing these four factors in some detail, the Supreme Court [*66] concluded its general discussion in language particularly apt to the instant case (id. at 533, emphasis supplied):

   "We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, [***9] they are related factors and must be considered together with such other circumstances as may be relevant.  In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution."

n2 Wilson v. State, 281 Md. 640, 382 A.2d 1053, cert. denied, 439 U.S. 839, 99 S. Ct. 126, 58 L. Ed. 2d 136 (1978); Jones v. State, 279 Md. 1, 367 A.2d 1 (1976), cert. denied, 431 U.S. 915, 97 S. Ct. 2177, 53 L. Ed. 2d 225 (1977); Erbe v. State, 276 Md. 541, 350 A.2d 640 (1976); Smith v. State, 276 Md. 521, 350 A.2d 628 (1976); Epps v. State, 276 Md. 96, 345 A.2d 62 (1975). See also Battle v. State, 287 Md. 675, 414 A.2d 1266 (1980); Stewart v. State, 282 Md. 557, 386 A.2d 1206 (1978).

n3 See also Smith v. State, supra, 276 Md. at 528 n. 3.

[***10]

   Following Barker v. Wingo, both the Supreme Court and this Court have reiterated that, after there has been a constitutionally [**1129] significant delay, no one circumstance is controlling in deciding whether the defendant has been denied a speedy trial but that all pertinent factors must be considered.  Thus, in Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973), the Supreme Court of Arizona had held that under the circumstances of the case, the defendant was not deprived of a speedy trial because there was no actual prejudice resulting from the delay.  The United States Supreme Court vacated the judgment and remanded for application of the balancing test, saying (414 U.S. at 26):

   "The state court was in fundamental error in its reading of Barker v. Wingo and in the standard applied in judging petitioner's speedy trial claim. Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial . . . ."
  
And in Smith v. State, 276 Md. 521, 532, 350 A.2d 628 (1976), we stated:

   "The Supreme Court has stated that under the [*67] [***11] Barker guidelines an affirmative demonstration of prejudice by the defendant is not necessary in order to prove a violation of the Sixth Amendment speedy trial right. Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 189, 38 L. Ed. 2d 183 (1973). Thus even if we were to agree with the Court of Special Appeals' conclusion that petitioner did not establish that he was prejudiced, affirmance of that court's holding, that Smith was not denied his constitutional right, would not concomitantly follow.  . . ."
 
To the same effect, see Jones v. State, 279 Md. 1, 16-17, 367 A.2d 1 (1976), cert. denied, 431 U.S. 915, 97 S. Ct. 2177, 53 L. Ed. 2d 225 (1977); Erbe v. State, 276 Md. 541, 558, 350 A.2d 640 (1976); Epps v. State, 276 Md. 96, 118, 345 A.2d 62 (1975). These authorities leave no room for the "single factor" approach adopted by the Court of Special Appeals in the case at bar.

   As previously indicated, the theory of the Court of Special Appeals' holding seemed to be that the presumption of prejudice, which arises from a long delay and which triggers the balancing process, either does not arise or is rebutted under the circumstances of this case, namely ignorance[***12] of the pending charge and no showing of actual prejudice. The intermediate appellate court stated that prejudice was difficult to presume absent an awareness of the charge.  This theory, however, will not withstand analysis.

   In Barker v. Wingo, supra, the Supreme Court pointed out that prejudice "should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect." 407 U.S. at 532. The Court went on (ibid.) :
 
"This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired."
 
Although it is true that the first two of these interests may [*68] not be implicated if the defendant is unaware that he has been charged with a crime, certainly the third interest is implicated.  Moreover, the third interest is the most important.  The Court continued in Barker (ibid.):
 
"Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.  If witnesses die or disappear[***13] during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.  Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown."
 
What the Court said is fully applicable to the defendant who is ignorant of the pending charge. Witnesses may die or disappear during the period of delay, and memories may fade, regardless of the defendant's awareness of the charge.  The fact that some prejudice, such as diminished memory, may not be reflected in the record, is equally true in both cases.  Because such prejudice [**1130] may not be reflected in the record, a presumption of prejudice from a long delay, thereby triggering the balancing process, is justified whether the defendant knows of the charge or not.

   In some respects, there may be more reason for the presumption of prejudice from substantial pre-trial delay when the defendant does not know that he has been accused.  Being ignorant of the criminal charge, his mental processes will not be focussing on it and on the underlying events.  When he later learns of the charge, he may not think of[***14] matters which could have come to mind earlier.  A potential witness or other evidence, or some circumstance about the events giving rise to the charge, may be forgotten because the defendant did not know of the charge and direct his attention to it.  This type of prejudice could not ordinarily be shown, or negated, by the record.  In sum, the defendant's ignorance of the pending criminal charge furnishes no logical basis for refusing to presume prejudice from a long [*69] pre-trial delay and refusing to apply the normal balancing test triggered by the presumption of prejudice. n4

n4 Even if there might be some factual basis for the view of the Court of Special Appeals, it would nevertheless be legally unsound.  Although there is language in one recent case suggesting that the presumption of prejudice resulting from a long delay is a "rebuttable presumption," see Wilson v. State, supra, 281 Md. at 658, affirming State v. Wilson, 35 Md. App. 111, 124-125, 371 A.2d 140 (1977), the presumption is not rebuttable in the sense that a particular circumstance (e.g., ignorance of the charge) or a failure to show actual prejudice, ovecomes the presumption and thus renders unnecessary a balancing test. Instead, once there is a pre-trial delay of constitutional dimension, it gives rise to an irrebuttable presumption of prejudice insofar as the requirement of a balancing test. Otherwise, the single factor "rebutting the presumption" would become determinative, contrary to the cases in the Supreme Court and in this Court from and after Barker v. Wingo.  The language from this Court's opinion in Wilson v. State, supra, was intended to mean only that, where the record fails to show actual prejudice or affirmatively shows a lack of prejudice in certain respects, this particular factor is weighed against the defendant in the balancing process.

[***15]

   Our conclusion here is in accord with the cases in other jurisdictions involving a speedy trial claim where the defendant was unaware of the charge during the period of delay.  In this situation, the courts have consistently recognized a presumption of prejudice from a long delay and applied the balancing test of Barker v. Wingo, viewing the presence or absence of actual prejudice as only one factor to be weighed. United States v. Washington, 504 F.2d 346 (8th Cir. 1974); Clark v. Oliver, 346 F. Supp. 1345 (E.D. Va. 1972); State v. Almeida, 54 Hawaii 443, 509 P.2d 549 (1973); State v. Cornell, 44 Ohio Misc. 29, 335 N.E.2d 891 (1975); State v. Ivory, 278 Or. 499, 564 P.2d 1039 (1977); State v. Hutchins, 25 Or. App. 281, 548 P.2d 1359 (1976); State v. Willingham, 13 Or. App. 504, 510 P.2d 1339 (1973); Green v. State, 555 S.W.2d 738 (Tex. Crim. App. 1977). Instead of viewing the defendant's ignorance of the charge as a factor weighing against the claim that he was denied a speedy trial, the cases correctly recognize that it may enhance the defendant's constitutional claim.  Thus, the defendant's failure to demand a speedy trial during the period when[***16] he was unaware of the charge, cannot be weighed against him.  Clark v. Oliver, supra, 346 F. Supp. at 1350; State v. Cornell, supra, 335 N.E.2d at 892-893. And the lack of knowledge concerning the charge has been viewed as supporting a contention of actual prejudice. State v. Almeida, supra, 509 [*70] P.2d at 553 (the defendant's "having no reason to remember particular facts," because of his ignorance, deemed to support his allegation of a substantially dimmer memory caused by the state's delay); State v. Cornell, supra, 335 N.E.2d at 893.

   In the present case, the State has conceded "that the length of delay from arrest to trial was fourteen months, and that the period was of 'constitutional dimension'" (respondent's brief, p. 3).  We shall, therefore, remand the case to the Court of Special Appeals for application of the balancing test in accordance with the principles set forth in this opinion.

   Judgment of the Court of Special Appeals reversed and case remanded to that court for further proceedings consistent with this opinion.

   Costs to be paid by Anne Arundel County. 

WILLIAM T. BOGLEY v. MIDDLETON TAVERN, INC. and AETNACASUALTY & SURETY COMPANY 
No. 55, September Term, 1979
 
Court of Appeals of Maryland
 
288 Md. 645; 421 A.2d 571; 1980 Md. LEXIS 225

 June  5, 1980, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration and Clarification Filed July 7, 1980 and Per Curiam Filed Issuing An Amended Mandate on October 22, 1980 and Motion Denied, See Per Curiam at Page 653 Infra.  Per Curiam Filed October 22, 1980.

PRIOR HISTORY:  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Hopper, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed as to William T. Bogley, and case remanded to that court with instruction to reverse the judgment of the Circuit Court for Anne Arundel County rendered in favor of Aetna Casualty & Surety Co. against William T. Bogley.  Costs to be paid by the respondent, Aetna Casualty & Surety Co.

CORE TERMS:  cross-claim, interruption, premium, insurer, insured, indemnity, tavern, clerk, fire coverage, jury trial, authority to bind, insurance policy, failed to carry, insurance agent, negligently, possessing, exposure, damaged, bind, co-insurance, recoverable, reimbursed, instituted, insuring, breached, normally

COUNSEL: Argued and reargued by William M. Nickerson and Larry M. Waranch, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellant.

   Argued and reargued by Richard R. Beauchemin, with whom were Joel G. Fradin and Arnold, Beauchemin & Tingle, P.A. on the brief, for appellees.

JUDGES: Smith, Digges, Orth, Cole and Davidson, JJ., and reargued before Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Murphy, C. J., and Smith, Digges, Cole, Davidson and Rodowsky, JJ. Judge Eldridge did not participate in the consideration of the motion.  Digges, J., delivered the opinion of the Court.  Per Curiam on motion for reconsideration and clarification at page 653 infra.

OPINIONBY: DIGGES

OPINION: [*647] [**572] This action was initially instituted by Middleton Tavern, Inc. in the Circuit Court for Anne Arundel County against the petitioner William T. Bogley (Bogley) n1 and respondent Aetna Casualty and Surety Co. (Aetna), as defendants, to recover under an insurance policy the business interruption loss the insured[***5] sustained when its Annapolis tavern was extensively damaged by fire.

n1 In addition to William T. Bogley, this action, as instituted in the trial court, included as insurance agents being sued, Bogley and Harting, Inc., doing business as Bogley, Harting and Betts, Inc.  The record discloses that William T. Bogley was vice-president of that corporate defendant.  Bogley and Harting, Inc., although joining William T. Bogley in noting an appeal to the Court of Special Appeals, neither filed a brief in that court nor sought review by this Court.

   From the pertinent facts, either undisputed or implicitly established by the jury verdict in this case, we learn that Bogley sold to Middleton an Aetna fire insurance policy covering its tavern that, in addition to insuring against other types of damage, contained a business interruption loss reimbursement provision. The original one year policy was renewed for a three year period and it was during this latter time frame that the tavern was partially destroyed by fire on [***6] November 25, 1973.  When, because of the wording of the contribution or co-insurance clause as set out in the issued policy, the insured was not fully reimbursed by the insurer for its business interruption loss, Middleton docketed this suit against Aetna and Bogley claiming that the co-insurance clause was not in accord with the insurance contract the tavern corporation purchased.

   By its multicount amended declaration, containing one count sounding in tort and one in contract against each of the two defendants separately, Middleton, in essence, asserted: count 1 -- Bogley through his negligent conduct [*648] failed to obtain the necessary insurance coverage for fire-caused business interruption of the duration here, which would have reimbursed the insured to the extent of $61,183 rather than the $23,285.07 paid under the policy as actually written; count 2 -- Bogley breached his agreement to obtain for Middleton the amount of business interruption by fire coverage mentioned in count 1; count 3 -- Aetna, acting through its agent (Bogley), negligently failed to provide for Middleton business interruption by fire coverage in the amount stated above as that insurance company, [***7] through this same agent, had agreed to do; and count 4 -- Aetna breached its agreement, entered into through its authorized agent (Bogley), to provide the previously mentioned amount of business interruption by fire coverage. Each defendant responded to this declaration with a general denial and, in addition, filed a cross-claim seeking indemnification from the co-defendant for any damages awarded Middleton against it.

   At the ensuing jury trial the vitality of the cross-claims were not litigated, but by agreement were reserved for decision by the judge at a later time in the event the jury's verdict was in favor of Middleton against both Aetna and Bogley.  Judge Lowe for the Court of Special Appeals explains what then took place:

   Under the jury's view of the facts, both Bogley and Aetna were liable [to Middleton for $21,714.93 in damages].  Presumably, in anticipation of deciding the cross-claims, the trial judge determined unprecedentedly, by inquiry of the foreman [before the jury was discharged], that the jury had decided not only that "Bogley was acting as an agent for [Aetna]," but also that its verdict was arrived at on the basis of both the negligence and the contract[***8] counts. n[2]

   [*649] [**573] To the extent divulged, the jury's findings of fact were adopted by the trial judge as his own when deciding the cross-claims [, which by stipulation, were submitted to him only on the evidence presented during the jury trial].  As interpreted by [the trial judge]:
 
". . . the jury found Bogley negligent and to be the agent of Aetna, with the result that Aetna became liable for its agent's wrongful conduct.  There was not and could not be any other theory under the facts and Court's instructions for the jury to find Aetna liable, and in finding Bogley negligent and also the agent of Aetna the jury quite correctly under the Court's instructions found Aetna liable.  This is the posture of the case in which the Cross-Claim for indemnity must be decided."
 
He then entered judgment in favor of Aetna against Bogley on both cross-claims. [Bogley v. Middleton Tavern, 42 Md. App. 314, 316, 400 A.2d 15, 17-18 (1979).]

n2 Although we do not pursue the matter, it may well be that many of the problems which developed in this litigation would have been avoided had the claims and issues been more sharply identified.  Likewise, it is doubtful that the manner in which the issues were submitted to the jury for decision and the form of the judgments entered were in accord with recognized trial practice.

[***9]

   The record here reveals that initially both Aetna and Bogley noted an appeal, but shortly thereafter the insurance company paid Middleton the judgment in full and dismissed its appeal. n3 In the Court of Special Appeals William T. Bogley, while not contesting the right of Middleton to recover from Aetna, contended: (i) that the trial court erred when it permitted the Middleton judgment to be entered so as to include him, an agent for a disclosed principal, as a judgment debtor; and (ii) that not only because of the just mentioned error, but also because Aetna failed to show it had suffered any legally recoverable damage from Bogley's default the judgment in favor of Aetna on its cross-claim against the agent for indemnity cannot stand.  When the [*650] intermediate appellate court disagreed and affirmed the judgments as entered by the trial court, this Court granted William T. Bogley's certiorari petition.  Since we agree with the petitioner that Aetna failed to establish it had suffered damage caused by dereliction on his part, we will reverse the judgment entered in favor of the insurance company on its cross-claim. With this conclusion it thus becomes unnecessary that we[***10] discuss the other issues raised by the petitioner.

n3 As no party raises the issue, we do not consider the question whether this suit could be maintained against Aetna without first, in equity, reforming the contract of insurance.  See Canatella v. Davis, 264 Md. 190, 206, 286 A.2d 122, 130 (1972). Cf. Housing Auth. of College Pk. v. Macro, 275 Md. 281, 340 A.2d 216 (1975).

   In explaining our disagreement with the conclusions reached by the two lower courts, we observe that implicit in the jury's verdict resolving Middleton's base claim against Aetna and Bogley, and as found by the trial judge in disposing of the cross-claims, is that Bogley was a representative of Aetna with authority to issue policies on behalf of the insurance company of the type involved in this case.  Like conventional agents, an insurance agent must exercise reasonable care and skill in performing his duties.  And if such a representative fails to do so, he may become liable to those, including his principal, who are caused a loss[***11] by his failure to use standard care. Lowitt v. Pearsall Chemical, 242 Md. 245, 253-56, 219 A.2d 67, 72-74 (1966); accord, Central Nat. Ins. Co. of Omaha v. Devonshire Co., 426 F. Supp. 7, 23 (D. Nebr. 1976), modified, 565 F.2d 490 (8th Cir. 1977); Max Holtzman, Inc. v. K & T Co., Inc., 375 A.2d 510, 514 (D.C. 1977); Washington v. Mechanics & Traders Ins. Co., 174 Okl. 478, 50 P.2d 621, 623-24 (1935); 3 Couch on Insurance 2d § 25:37, at 335 (1960); Restatement (Second) of Agency § 379 (1958).  Cf. Canatella v. Davis, 264 Md. 190, 206, 286 A.2d 122, 130 (1972) (agent's duty of care to insured).  However, it does not follow from what we have just said that the requirement that additional money be paid in connection with an insurance policy as it should have been written, rather than as it was, always measures the damages collectible by the insurance company from its agent.  Although the validity of that statement has not before been examined or considered by [**574]this Court, it has the approval of the courts of a number of our sister states.  Lumbermens Mutual Insurance Company v. Bowman, 313 F.2d 381, 388 [*651] (10th Cir. 1963) (applying[***12] New Mexico law); Emersons, Ltd. v. Max Wolman Company, 388 F. Supp. 729, 735 (D.D.C. 1975), aff'd, 530 F.2d 1093 (D.C. Cir. 1976); Millers Mutual Fire Insurance Co. of Tex. v. Russell, 246 Ark. 1295, 443 S.W.2d 536, 538-39 (1969); Pennsylvania Millers Mutual Ins. Co. v. Walton, 236 Ark. 336, 365 S.W.2d 859, 861 (1963); Max Holtzman, Inc. v. K & T Co., Inc., 375 A.2d 510, 514-15 (D.C. 1977); State Ins. Co. v. Richmond, 71 Iowa 519, 32 N.W. 496, 499 (1887); Mathews v. Marquett Casualty Company, 152 So. 2d 577, 584-85 (La. Ct. App.), cert. denied, 153 So. 2d 880 (La. 1963); Norby v. Bankers Life Co. of Des Moines, Iowa, 304 Minn. 464, 231 N.W.2d 665, 671 (1975); Julien v. Spring Lake Park Agency, Inc., 283 Minn. 101, 166 N.W.2d 355, 357 (1969); 16 J. Appleman, Insurance Law and Practice § 878, at 360-61 (1968 & 1979 Supp.); Annot., 35 A.L.R.3d 815 (1971).

   The precept distilled from these authorities may be expressed in this manner: When an agent possessing authority to bind an insurer as the principal with respect to designated types of insurance, negligently, but without violating express instructions of his principal, binds that principal[***13] in a manner different from that expressed in the issued policy and which, because of the additional exposure, would have required a larger premium, the agent ordinarily is liable to his principal only for the additional premium. In making its like ruling the Supreme Court of Iowa presented an apt example:

   If a merchant's clerk should sell goods on credit, which he is employed to sell in that way, and to a person to whom he might properly sell, but for a price less than he was expressly required to obtain, the measure of the merchant's recovery against the clerk in an action for damages would unquestionably not be greater than the difference between the two prices, and that, too, even if the buyer should become insolvent, and not pay anything.  If, on the other hand, the clerk should [*652] sell property of his employer of a kind which he was not employed to sell at all, he probably would be held responsible for the whole value.  [State Insurance Co. v. Richmond, 71 Iowa 519, 32 N.W. 496, 499 (1887).]
 
In determining whether the doctrine applies it is quite important that the insurance company be not caused to assume a risk it is not in the business of insuring[***14] against or one that it has specifically declined to take. But when an agent possessing authority to bind as principal an insurance company on a risk of the type the company normally accepts, and the principal does not affirmatively show that it would not have accepted the extended obligations of the particular risk then being considered, the insurer's recoverable loss from the agent is normally confined to the difference, if any, between the premium actually collected and the one that would have been collectable had the issued policy included the coverage agreed to between the agent and the insured.

   Applying what we have just set out in the context of the case now before us, we find that Aetna, as cross-plaintiff, has in no way attempted to show (nor does the record otherwise indicate) that the full business interruption claim here involved a specifically prohibited risk nor that the agent (Bogley) refused or failed to carry out an unequivocal demand or instruction from the company in writing this policy.  Here, the matter of the cross-claims was submitted by agreement solely on the evidence produced in the jury trial of Middleton's claims.  No witness was produced by Aetna at that[***15] trial and the crucial evidence was not otherwise supplied.  Consequently, since Aetna did not meet its burden of showing it was damaged, in that it did not demonstrate that an additional premium would have been payable because of a greater exposure (or, even if it did, the amount of that additional premium), the judgment in favor of Aetna against Bogley on the cross-claim for indemnity must be reversed.  E.g., Scott v. Watson, 278 Md. 160, 165, 359 A.2d 548, 552 (1976); Peroti v. [**575]Williams, 258 Md. 663, 669, 267 [*653] A.2d 114, 118 (1970); Fagiolo v. Mencarini, 236 Md. 437, 441, 204 A.2d 560, 562 (1964).

   [EDITOR'S NOTE: TEXT WITHIN THESE SYMBOLS [O> <O] IS OVERSTRUCK IN THE SOURCE.]

    [O> Judgment of the Court of Special Appeals reversed as to William T. Bogley, and case remanded to that court with instruction to reverse the judgment of the Circuit Court for Anne Arundel County rendered in favor of Aetna Casualty & Surety Co. against William T. Bogley.

   Costs to be paid by the respondent, Aetna Casualty & Surety Co.<O]

   (See amended mandate at page 655 infra.) 

JOSEPH W. PARKS v. STATE OF MARYLAND 
No. 23, September Term, 1979
 
Court of Appeals of Maryland
 
287 Md. 11; 410 A.2d 597; 1980 Md. LEXIS 133

 January  31, 1980, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Goudy, J.

DISPOSITION: Judgment of the Court of Special Appeals affirmed.  Defendant to pay the costs.

CORE TERMS:  indictment, double jeopardy, jeopardy, new trial, void, convicted, retrial, nullity, subject matter, Criminal Law, same offense, voidable, attach, juvenile, murder, retry, Intrastate Detainer Act, charging document, untried, sentence, twice, subject matter jurisdiction, verdict of acquittal, lacked jurisdiction, verdict of guilty, new indictment, conducting, reversal, judicata, deprive

COUNSEL: George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

   F. Ford Loker, Assistant [***3]  Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.

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

* Orth, J., participated in the hearing of the case and in the conference in regard to its decision but retired prior to the adoption of the opinion by the Court.

OPINIONBY: COLE

OPINION: [*12] [**599] Once again we are presented with a set of circumstances where we must determine if the defendant's claim of double jeopardy prevents the State from trying him for the same offense a second time.

    The facts are not in dispute.  The defendant, Joseph W. Parks, while an inmate at the Maryland Correctional Camp Center, escaped, and a detainer based on an indictment charging escape was lodged against him.  After being apprehended and returned to prison, he filed a Request for Disposition of Intrastate Detainer pursuant to Maryland Code (1957, 1976 Repl. Vol., 1978 Cum. Supp.), Art. 27, § 616S which required that he be tried within 120 days after receipt of the request by the proper authorities.  He was not in fact brought to trial until 124 days later.  He[***4] moved to dismiss the indictment due to the State's failure to comply with the time strictures of § 616S.  The Circuit Court for Anne Arundel County denied the motion, found the defendant guilty of escape and sentenced him to six months imprisonment, consecutive to the sentence then being served.  The defendant [*13] appealed and the Court of Special Appeals reversed and remanded the case in an unreported opinion, Parks v. State, No. 75, September Term, 1977, filed October 21, 1977.  The circuit court pursuant to this decision dismissed the indictment.

   The Grand Jury, shortly thereafter, returned a new indictment charging the defendant with the same offense.  He moved to dismiss this indictment on grounds of double jeopardy. The Circuit Court of Anne Arundel County denied his motion and he appealed again to the Court of Special Appeals which affirmed the circuit court.  Parks v. State, 41 Md. App. 381, 397 A.2d 212 (1979).

   In its opinion the intermediate appellate court first traced in great detail the relevant legislative history of § 616S and pointed out that the 1976 amendments to this section provided that dismissal caused by the State's failure to comply with[***5] the applicable time limits was without prejudice to the State to reindict.  It concluded that the only question to be decided was whether a retrial following dismissal, pursuant to the statute, violates the double jeopardy clause.  That court held that there was no such violation since jeopardy did not attach at the first trial for the reason that the trial court, by the express terms of § 616S (e), n1 was then without jurisdiction to hear the case.  It relied on the proposition that a judgment entered by a court having no jurisdiction is absolutely void and is, therefore, no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.

n1 § 616S (e):
 
(e) Dismissal when indictment, etc., not brought to trial.  -- If the untried indictment, information, warrant, or complaint for which request for disposition is made, is not brought to trial within the time limitation set forth in subsection (b) of this section, the court no longer has jurisdiction, and the untried indictment, information, warrant, or complaint has no further force or effect.  In that case, the court upon request of the prisoner or his counsel shall enter an order dismissing the untried indictment without prejudice.

[***6]

   We granted certiorari limited solely to the question of
 
whether retrial of appellant upon a new indictment after dismissal of the charge arising from the original detainer because the State failed to bring [*14]the escape charge to trial within the statutory period under Md. Code (1957 Ed., 1978 Cum. Supp.), Article 27, § 616S, would place him twice in jeopardy for the same offense.

   Before us the defendant contends that the lower court erred in finding that jurisdiction as used in § 616S is synonymous with jurisdiction which enables a court to exercise the power to hear a case.  He argues that having once been tried, convicted and sentenced jeopardy attached and that he cannot be made to stand trial for the same offense again.

   The State, on the other hand, contends that while this Court could affirm on the theory that jeopardy did not attach because [**600] the trial court was without jurisdiction, the sounder approach is that even if jeopardy did attach to the first trial, retrial is not barred because the defendant's conviction was reversed by his own choice.

   The prohibition against placing an accused twice in jeopardy for the same offense is rooted in[***7] the common law of this State and in addition is mandated by virtue of the fifth and fourteenth amendments to the United States Constitution.  Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); Block v. State, 286 Md. 266, 407 A.2d 320 (1979); Parojinog v. State, 282 Md. 256, 384 A.2d 86 (1978); State v. Shaw, 282 Md. 231, 383 A.2d 1104 (1978).

   The basic premise for enforcing the prohibition is to prevent the State from making repeated attempts to convict an individual, thereby subjecting him to the hazards of trial, embarrassment, expense, and anxiety as well as enhancing the possibility that even if innocent, he may still be found guilty.  In accordance with this premise the United States Supreme Court and this Court have applied certain constitutional guarantees protecting the accused against unwarranted retrial.

   These guarantees consist of constitutional protection against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; (3) and multiple punishment for the same offense.  [*15] North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).[***8] It is this second ground of protection that the defendant claims was denied him in the instant case.  He argues that he was placed in jeopardy by the trial court which had jurisdiction over the subject matter and of his person.  He contends that the holding of the Court of Special Appeals that the trial court had lost its jurisdiction, that jeopardy never attached, and that its judgment was a nullity and void is unsupported by the law.  We shall now determine what, if any, merit there is in these contentions.

   Since United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896) was decided, it has been settled that the second ground of protection imposes no limitation upon the power of a competent tribunal to retry a defendant who has succeeded in getting his first conviction set aside.  In Ball, three men were charged with the murder of one William T. Box.  The jury returned a verdict of guilty against two and not guilty against the third, M.F. Ball. The two convicted defendants appealed and won a reversal on the ground that the indictment was defective, in that it failed to state when and where Box died. All three defendants were retried; all three pleaded former[***9] jeopardy; all three were convicted.

   The Supreme Court extended the first protection guaranteed by the fifth amendment to Ball who had been acquitted in his prior trial, stating that
 
we are unable to resist the conclusion that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing.  [163 U.S. at 669].
 
The Supreme Court went on to hold that
 
[t]he verdict of acquittal was final and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution.  [Id. at 671]. n2

n2 This fundamental principle of double jeopardy has been followed in a long line of cases.  Kepner v. United States, 195 U.S. 100, 24 S. Ct. 797, 49 L. Ed. 114 (1904); Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957); United States v. Sisson, 399 U.S. 267, 90 S. Ct. 2117, 26 L. Ed. 2d 608 (1970); United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975); Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).

[***10]

   [*16] As to the convictions of Ball's two confederates the Supreme Court affirmed.  The Court explained that
 
[t]heir plea of former conviction cannot be sustained, because upon a writ of error sued out by themselves the judgment and sentence against them were reversed [**601] and the indictment ordered to be dismissed.  . . . [I]t is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted. [Id at 671-72].

   Ball, then, makes clear that a defendant who successfully challenges his conviction may be retried by a court of competent jurisdiction, the rationale being that the defendant wiped the slate clean and the parties may start anew. Not only is the right of the defendant to an error-free trial protected but the societal interest that the guilty should be punished is preserved.

   The Court of Special Appeals did not find this teaching of Ball applicable. The Court interpreted the statute as ousting the trial court of jurisdiction to try the defendant on a charge of escape.  This the[***11] statute did not do; it sought to restrain the trial court from trying the defendant under that particular charging document. The court misconceived jurisdiction as it pertains to proceedings involving claims of double jeopardy.
 
   A trial court has jurisdiction for purposes of double jeopardy when it has jurisdiction over the subject matter and the person of the defendant.  A statute which seeks to limit the period in which a court should exercise its authority does not deprive it of jurisdiction for purposes of double jeopardy considerations.  Thus, if the court exercises its power outside [*17] the prescribed period, its judgment is not thereby rendered void but only voidable. The defendant is subjected to the full force of the judgment until he attacks its validity.  As the United States Supreme Court said in Benton v. Maryland, 395 U.S. at 796, the defendant "could quietly have served out his sentence under this 'void' indictment had he not appealed his conviction.  Only by accepting the option of a new trial could the indictment be set aside; at worst the indictment would seem only voidable at the defendant's option, not absolutely void."

   We have in recent decisions[***12] of this Court attempted to clarify the meaning of jurisdiction for purposes of applying the principles of double jeopardy. Block v. State, supra; Parojinog v. State, supra. In Parojinog petitions were filed in the juvenile division of the District Court of Maryland (Montgomery County) charging defendant with several delinquent acts of arson and related offenses.  The District Court erroneously exercised its jurisdiction by making what were in effect an adjudication and disposition before conducting a hearing on whether to waive jurisdiction over the defendant.  Some six months after ordering the juvenile to make restitution and undergo therapy, the District Court waived jurisdiction and indictments were filed against the appellant in the circuit court.  Appellant's motion to dismiss on grounds of double jeopardy was denied by the circuit court.  The Court of Special Appeals affirmed and we granted certiorari.

   In reversing the decision below, this Court found that although the District Court did not have the authority to make adjudication and disposition without first conducting a waiver hearing, it did at the time of the unauthorized proceeding have jurisdiction over both[***13] the subject matter of the case and over the person.  Accordingly, the court held that jeopardy did attach to the juvenile proceedings and that a new trial was prohibited.

   The implications of Parojinog for the question in the case at bar were crystallized by our opinion in Block.  This was a proceeding in the District Court against the defendant for shoplifting.  Following a court trial and a verdict of guilty, the trial judge in response to defendant's motion, reconsidered [*18] the verdict and rendered a verdict of not guilty. Subsequent to the prosecution's motion, the court set aside the not guilty verdict and ordered a new trial. After a request for jury trial and a transfer to the circuit court, defendant filed a motion to bar a new trial on the ground of double jeopardy. The circuit court denied the motion.  This Court granted a writ of [**602] certiorari by-passing the Court of Special Appeals.

   On appeal the State contended that because the District Court lacked jurisdiction to set aside the guilty verdict and render a verdict of not guilty, the verdict of acquittal was a nullity under the theory of no jurisdiction -- no jeopardy. This Court rejected the[***14] State's contention and held that a new trial of the defendant for the same offense would violate the double jeopardy clause.  Writing for the Court, Judge Eldridge explained that the kind of jurisdiction encompassed by the rule of no jurisdiction -- no jeopardy is "jurisdiction in the most basic sense.  It does not mean that an error in the exercise of jurisdiction permits judicial proceedings to be treated as a nullity." Block, 286 Md. at 270, 407 A.2d at 322. The Court concluded by stating:
 
In the present case, the District Court had jurisdiction over the offense at the time the verdict of not guilty was rendered.  As in Parojinog, the fact that the court may not have been authorized under the rules to render the verdict does not make it void for double jeopardy purposes.  The cases make it clear that an improper or defective exercise of jurisdiction does not deprive an acquittal of its finality.  Instead, as long as the court rendering a not-guilty verdict has jurisdiction over the offense, the verdict is a bar to further criminal proceedings on the same charge.  [Id. at 273-74, 407 A.2d 324 (citation omitted)]. n3

n3 An older Maryland case, while not dealing with the meaning of jurisdiction, supports the reasoning of the Court here.  Crawford v. State, 174 Md. 175, 197 A. 866 (1938). After finding that the jurisdiction of a justice of the peace in Baltimore City did not include the trial of one charged with aggravated assault, the Court held that one's acquittal of such a charge by a police magistrate in that city would not permit a defense of res judicata to subsequent indictment for murder as a result of the assault.  The failure of jurisdiction in Crawford clearly was one of subject matter jurisdiction. Although Crawford was a res judicata case, the similarity between that doctrine and that of double jeopardy led the Court of Special Appeals to find Crawford as precedent for its holding in Tipton v. State, 8 Md. App. 91, 258 A.2d 606 (1969). In Tipton, the court held that a former acquittal by a magistrate who lacked jurisdiction to try a felony would not on double jeopardy grounds bar a subsequent conviction by a proper tribunal.  Here too, the lack of jurisdiction which permitted the court to treat the earlier proceeding as a nullity amounted to a failure of subject matter jurisdiction. Our holding today is consistent with Crawford and Tipton.

[***15]

   [*19] Thus, our cases demonstrate that when the trial court has fundamental jurisdiction over a criminal cause, its judgment is not invalidated because of an improper exercise of that jurisdiction.  As noted in Parojinog, the State could not retry the defendant because in effect, he had already been convicted in the District Court, which conviction remained unreversed.  In Block, the State could not retry the defendant because he had been acquitted on the merits.  However, in each of these cases, the trial court had improperly exercised its jurisdiction.

   Turning to the instant case, it is clear that the trial court at all times had jurisdiction over both the defendant and the subject matter. The expiration of the 120 day period in the statute affected neither of these grounds of jurisdiction.  The statute only impaired the court's authority to exercise that jurisdiction.  The judgment ultimately rendered was not void but voidable. When the defendant elected to challenge his conviction and did so successfully, he erased any jeopardy which attached by virtue of his first trial.

   We hold, therefore, that the defendant cannot by his own act avoid the jeopardy in which[***16] he stands and then assert it as a bar to a subsequent jeopardy. Having obtained a reversal of his conviction on grounds other than the insufficiency of the evidence, the defendant is subject to retrial on another indictment. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); United States v. Scott, 437 U.S. 82, 90-91, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978).

   We, therefore, affirm the judgment of the Court of Special Appeals but for different reasons.

   Judgment of the Court of Special Appeals affirmed.

   Defendant to pay the costs. 

ANNE ARUNDEL COUNTY, MARYLAND v. CROFTON CORPORATION et al.;MARYLAND SOUTHEASTERN CORPORATION v. CROFTON CORPORATION 
No. 138, September Term, 1978
 
Court of Appeals of Maryland
 
286 Md. 666; 410 A.2d 228; 1980 Md. LEXIS 127

 January  28, 1980, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Filed February 21, 1980; Denied March 7, 1980.

PRIOR HISTORY:  
Two appeals from the Circuit Court for  Anne Arundel  County; Turk, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment affirmed.  Costs to be paid by appellant Anne Arundel County.

CORE TERMS:  water, sewer, developer, sewerage, acre tract, authority to enter, transferred, terminate, reasonably necessary, full development, fully developed, build, acre, reasonable time, privately owned, period of time, water supply, full force, ambiguous, impaired, plant, constructed, contractual, ownership, duration, express provision, Laws Of Maryland, subsequent legislation, sufficient evidence, existing obligation

COUNSEL: John M. Court, Assistant County Solicitor, with whom was Michael R. Roblyer, County Solicitor, on the brief, for Anne Arundel County, Maryland, one of appellants.  Lee E. Landau, with whom were S. Leonard Rottman and Tabor & Rottman on the brief, for Maryland Southeastern Corporation, other appellant.

   Joseph M. Roulhac, with whom were Robert C. Fowler and Smith, Somerville & Case on the brief, for Levitt & Sons, Inc. et al., part of appellees.  Frank C. Serio for Crofton Corporation, another appellee.

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

* Orth, J., participated in the hearing of the case and in the conference in regard to its decision but retired prior to the adoption of the opinion by the Court.

 

OPINIONBY: DAVIDSON

OPINION: [*667] [**229] This case presents three questions.  The first question is whether the Anne Arundel County Sanitary Commission had authority to enter into a contract with a private developer which established charges for sewer and water connections. [***4] The second question involves the duration of that contract.  The third question concerns the impact upon such a contract [*668] of subsequent legislation enacted by the Anne Arundel County Council which established uniform charges for sewer and water connections higher than those established by the contract.

   In 1963, appellee, Crofton Corporation (Crofton), owned 1,257 acres of land in Anne Arundel County which it wished to develop.  At that time neither water nor sewer service was available.  In order to proceed with development, Crofton, on 8 January 1964, entered into a contract (1964 Contract) with the Anne Arundel County Sanitary Commission (Commission).  Crofton agreed to "construct, own, and operate" certain sewerage and water systems, designed to service its 1,257 acre tract, and to transfer the ownership of any completed stage or stages of those facilities to the Commission, at no cost, within 66 months.  The Commission, which then had the authority to establish charges for sewer and water connections, agreed to permit Crofton to connect its sewerage facilities to the Commission's Patuxent Sewerage Treatment Plant, and to charge Crofton $235 for each residential sewer[***5] connection as Crofton's share of the capital cost of the Patuxent plant. Because Crofton was to construct the entire water system at its own cost, the Commission agreed to make no charge for any water connection.  The 1964 Contract did not expressly provide for a specific termination date.

   In 1965, the Charter of Anne Arundel County was adopted.  Anne Arundel County Code (1967), Appendix A.  The Commission was abolished and its authority to establish charges for sewer and water connections was transferred to the Anne Arundel County Council (County).  Anne Arundel County Code (1967), § 15-100; Charter of Anne Arundel County, § 539.  Anne Arundel County Code (1967), § 17-600 provided that all owners of real estate should pay charges for water and sewer connections.  Section 17-605 and § 17-606 n1 established the amount of those charges.  Anne Arundel County Code (1967), § 17-614 provided:
 
"And be it further enacted, that no presently [*669] existing obligation or contract right [**230] shall in any way be impaired by the provisions of this act." [Laws of Anne Arundel County (1965), Bill No. 30, § 4, effective 1 July 1965.]
 
In 1967, 1972, and 1976, the[***6] County dramatically increased the charges for sewer and water connections. n2 On each of these occasions, the County retained the provision that no existing obligation or contract right should in any way be impaired. Anne Arundel County Code (1967), § 17-614.

n1 Then codified as Anne Arundel County Code (1957), § 22-76.  See Laws of Anne Arundel County (1965), Bill No. 30, § 1.

 

n2 Laws of Anne Arundel County (1967), Bill No. 27-67 and Bill No. 28-67, enacted 3 July 1967; Laws of Anne Arundel County (1972), Bill No. 118-72, enacted 10 August 1972; Laws of Anne Arundel County (1976), Bill No. 63-76, enacted 3 August 1976.

   In 1967, Crofton began to sell portions of its 1,257 acre tract to other developers. n3 The County continued to charge the 1964 Contract amount, and not the statutory amount, for water and sewer connections made within the 1,257 acre tract.

n3 These developers included Levitt Residential Communities, Inc., Levitt & Sons, Inc., Harbor Investments, Inc., Tradewinds Investment Corporation, Maryland Southeastern Corporation, and Lake Louise, Inc.

[***7]

   On 21 November 1968, Crofton sought a three-year extension of the time within which to complete the construction of the water and sewerage facilities and their transfer to the County.  In a letter dated 26 February 1969, the County, while denying the requested extension, said:

   "The Office of the County Solicitor has reviewed the question as to whether or not Crofton would be allowed to continue connecting to water and wastewater systems at 'Area Service Charges' agreed to in the contract of January 8, 1964, after they transferred ownership of the utilities to Anne Arundel County on July 9, 1969.  They have ruled that the original agreement was entered into prior to enactment of Bill 28-67 and, therefore, the contract of January 8, 1964, is in full force and effect and is not negated by subsequent legislation in Bill 28-67."
 
[*670] Thus, although the requested extension was denied, the County made it clear that after the facilities were transferred, the 1964 contractual charges would continue to apply.

   By July, 1969, only half of the water and sewerage facilities necessary to serve the 1,257 acre tract when fully developed had been completed.  On 9 July 1969, Crofton[***8] transferred to the County the completed portions of the water and sewerage facilities.  Throughout this period, the County continued to charge the 1964 Contract amount for water and sewer connections.

   Thereafter, in 1969, 1970, and 1972, the County entered into contracts with Levitt & Sons, Inc., Harbor Investments, Inc., and Crofton, respectively, concerning the construction of water and sewer facilities.  In each of these contracts, the County expressly agreed that the 1964 Contract charges, rather than the statutory charges, would be applied.  Similar contracts with Levitt Residential Communities, Inc., Tradewinds Investment Corporation, Maryland Southeastern Corporation, and Lake Louise, Inc., made in 1971 and 1972, contained no such provision.  Between January, 1964 and December, 1972, the County charged Crofton and the developers (developers) the 1964 Contract amount for sewer and water connections.

   On 15 December 1972, the County asserted that the 1964 Contract had terminated on 9 July 1969 and, therefore, the developers had to pay the applicable statutory charges for all water and sewer connections which had been made after that date.  The developers refused to pay.

   On 18[***9] May 1973, in the Circuit Court for Anne Arundel County, the County filed a petition for declaratory judgment and injunctive relief.  It sought to enjoin the developers from making any further connections unless they paid the statutory connection charges.  It also sought a determination of the amount of the charges incurred by the developers since 9 July 1969.  On 11 July 1974, the Court of Special Appeals, in an unreported opinion, affirmed the trial court's denial of an interlocutory injunction.

   [**231] On 4 August 1975, the trial court granted motions for [*671] summary judgment filed by Crofton, Harbor Investments, Inc., and Levitt & Sons, Inc.  Each had been party to an agreement made after 1969 which expressly provided that the 1964 Contract charges would govern.  On 8 April 1976, this Court entered an order dismissing as premature an appeal from the trial court's order granting the motions for summary judgment.

   In May, 1977, the County's suit against Levitt Residential Communities, Inc., Maryland Southeastern Corporation, and Tradewinds Investment Corporation was tried.  In a decree dated 30 March 1978, the trial court declared that the County had the authority to[***10] enter into the 1964 Contract governing the amount to be charged for the water and sewer connections; that the 1964 Contract had not terminated in July, 1969, but was in full force and effect and would terminate on 8 January 1984; and that the statutory charges were not applicable during the contract period.  It concluded that the County was entitled to collect only the 1964 Contract charges and not the statutory charges.  It entered judgment in favor of the developers, n4 and dismissed a cross-claim filed by Maryland Southeastern Corporation against Crofton.  The County and Maryland Southeastern Corporation appealed.  We issued a writ of certiorari to the Court of Special Appeals before consideration by that Court.

n4 On 2 January 1974, by agreement of the parties, the trial court had dismissed with prejudice the County's suit against Lake Louise, Inc.

   Chapter 676, § 3 of the Laws of Maryland (1927) established the Anne Arundel County Sanitary Commission.  Sections 4, 13, 16, 17, and 18 established that the [***11] Commission had authority to engage in a variety of activities necessary to achieve its purposes. n5 [**232] It had authority to enter into any [*672] contracts necessary for the provision of water and sewerage services, including contracts for the purchase or acquisition of lands, structures, buildings, and privately owned and operated water and sewerage systems.  In addition, it had the authority to establish water and sewer connection charges.

n5 § 4 provided in pertinent part:
 
"[T]he members of said Commission shall be a body corporate . . . with the right . . . to sue and be sued, and to do any and all other corporate acts for the purpose of carrying out the provisions of this Act.  Whenever it shall be deemed necessary by said Commission to take or acquire any land, structures or buildings . . . for the construction, extension or maintenance of any water main, sewer or appurtenance thereof, or any sewerage disposal plant, reservoir, water filtration plant, tank or pumping station, or for the execution by the Commission of any other power [or] function vested in it by this Act, said Commission may purchase the same from the owners, or failing to agree with the owner or owners thereof, may condemn the same.  . . ." (Emphasis added.) [See Anne Arundel County Code (1967), § 15-202(b); Anne Arundel County Code (1957), § 22-45.]
 
§ 13 provided in pertinent part:
 
"That [for] every water and sewer connection . . . the Commission shall make such charge as it shall determine to be reasonable.  . . ." [See Anne Arundel County Code (1957), § 22-76.]
 
§ 16 provided in pertinent part:
 
"[S]aid Commission shall have full power and authority . . . to enter into any . . . agreement concerning any . . . matter deemed by the Commission to be necessary, advisable or expedient for the proper construction, maintenance, and operation of the water supply, sewerage or drainage systems.  . . ." (Emphasis added.) [See Anne Arundel County Code (1957), § 22-108.]
 
§ 17 provided in pertinent part:
 
"[W]henever said Commission . . . is ready to connect with any . . . privately owned water supply or sewerage system . . . and it deems it advisable and proper . . . to take over the said water or sewerage system, it may purchase the same upon such terms and conditions as may be agreed upon.  In the event of failure to agree . . . the said Commission may acquire the same by condemnation.  . . ." (Emphasis added.) [See Anne Arundel County Code (1967), § 15-408(a); Anne Arundel County Code (1957); § 22-109.]
 
§ 18 provided in pertinent part:
 
"[W]henever . . . the property owners . . . of any locality . . . shall desire a water supply, sewerage or drainage system . . . to be constructed . . . and the Commission shall decide that it is inexpedient or impracticable at that time, owing to the remoteness from its general system or other causes, to build such system, such . . . persons may build and operate said system at its own expense, but it shall be constructed under plans and specification prepared by the Commission and under its supervision, and its maintenance and operation shall be under the general control of the Commission.  . . ." [See Anne Arundel County Code (1967), § 15-407(d) and § 15-414(a); Anne Arundel County Code (1957), § 22-110.]

[***12]

   The 1964 Contract between Crofton and the Commission provided that Crofton build and operate a privately owned water and sewerage system which would ultimately be acquired by the County in exchange for, among other things, fixed favorable water and sewer connection charges.  The Commission had the authority to enter into such a contract in order to provide such services.

   While it is clear that the Commission had the authority to [*673] enter into the 1964 Contract, it is not clear when that contract was to terminate. The rules which govern the construction of contracts between individuals and private corporations also govern the construction of contracts between individuals and municipalities.  City of Frederick v. Brosius Homes Corp., 247 Md. 88, 92, 230 A.2d 306, 308 (1967). Under the objective law of contracts, a court, in construing an agreement, must first determine from the language of the agreement itself, what a reasonable person in the position of the parties would have meant at the time it was effectuated.  Benson v. Board of Education of Montgomery County, 280 Md. 338, 349, 373 A.2d 926, 932 (1977); Slice v. Carozza Properties, Inc., 215 Md. 357, 368, [***13] 137 A.2d 687, 693 (1958); McKeever v. Washington Heights Realty Corp., 183 Md. 216, 220, 37 A.2d 305, 308 (1944). Where the language is ambiguous, the court must then determine the intent and purpose of the parties at the time the contract was made, which is a question of fact.  H & R Block, Inc. v. Garland, 278 Md. 91, 98, 359 A.2d 130, 133 (1976); Canaras v. Lift Truck Services, Inc., 272 Md. 337, 352, 322 A.2d 866, 874 (1974); Dorsey v. Hammond, 1 H. & J. 191, 201 (1801). It must therefore consider the circumstances and conditions affecting the parties at that time, and their subsequent conduct and construction of the contract.  Canaras, 272 Md. at 352, 322 A.2d at 874; National Union Mortgage Corp. v. Potomac Consol. Debenture Corp., 178 Md. 658, 674, 16 A.2d 866, 873 (1940); Citizens' Fire Ins., Sec. & Land Co. of Baltimore City v. Doll, 33 Md. 89, 107 (1872). In the absence of an express time for performance, a reasonable time will be implied.  Evergreen Amusement Corp. v. Milstead, 206 Md. 610, 617, 112 A.2d 901, 904 (1955); Coates v. Sangston, 5 Md. 121, 130 (1853).

   Here, the 1964 Contract does not expressly provide for a specific termination [***14] date.  It does provide, however, that the water and sewerage facilities to be constructed by Crofton were to be transferred to the Commission within 66 months of the date of the 1964 Contract, or by 9 July 1969.  Moreover, there were repeated references in the 1964 Contract to the fact that the agreed upon charges were applicable to connections made to "Crofton's" sewerage and water [*674] systems, which suggests that after the facilities were transferred to the County and no longer belonged to Crofton, those charges would no longer apply.  This contract language suggests that the 1964 Contract was to terminate upon the transfer of the facilities, but not later than 9 July 1969.

   Other provisions of the 1964 Contract, however, indicate that it was to terminate within the time reasonably necessary for full development of the entire 1,257 acre tract. The 1964 Contract embodies a plan for the provision of the water and sewer facilities necessary to adequately service the 1,257 acre tract when fully developed. n6 Indeed, some provisions define certain of the rights and obligations of the parties as terminating, not on the date of transfer, but rather as extending throughout a period[***15] [**233] of time reasonably necessary for full development of the 1,257 acres. n7

n6 See, e.g., 1964 Contract:
 
"WHEREAS, Crofton has had prepared plans for a water system and a sewerage system to serve the above described land [the entire 1,257 acre tract] . . . ."
n7 See, e.g., 1964 Contract:
 
"The Commission shall not levy any tax or assessment to pay for the facilities mentioned herein against any owner of any land shown on Exhibit A [the entire 1,257 acre tract] after the date of this Agreement, except that the Commission shall have the right to charge for water furnished said land owners after the Commission shall have acquired the ownership of the Crofton water facilities."
 
The fact that the Commission's obligation not to alter the contractually provided water connection charge extended to the entire 1,257 acres, shows that the Commission's obligation was not to terminate at the date on which Crofton transferred the sewer and water facilities to the County, but rather was to continue until development of the entire 1,257 acre tract had been completed. This conclusion is supported by the fact that the 1964 Contract specifically provides that the Commission's obligation to permit Crofton, and not the Commission, to charge for providing water services was to terminate when the Commission acquired ownership of the facilities.  The absence of a similar, express termination provision with respect to the Commission's obligation not to alter connection charges, supports an inference that that obligation was to continue after the date of transfer.

[***16]

   There was extrinsic evidence to show that the 1964 Contract was not to terminate by 9 July 1969.  Witnesses for the County and the developers stated that at the time the 1964 Contract was made, the parties contemplated provision of water and sewer services sufficient to service adequately the entire 1,257 acres when fully developed. Witnesses for the developers estimated in 1964 that a reasonable time for [*675] complete development was "well within 30 years," and that 15 to 20 years was a realistic estimate.  Although Crofton's request for an extension of time within which to transfer the facilities was denied, the County, in a series of letters beginning 26 February 1969, made it clear that after the 9 July 1969 transfer date, the 1964 Contract would remain in full force and effect and the contractual connection charges would continue to be applicable until the 1,257 acre tract was fully developed. Indeed, between 9 July 1969 and 15 December 1972, the County continued to charge the developers the 1964 Contract amount for sewer and water connections.  All of this evidence is more than sufficient to support the trial court's finding that, at the time the 1964 Contract was made, [***17] the parties intended that it remain in effect for 20 years, a period of time reasonably necessary for full development of the 1,257 acres. That finding was not clearly erroneous.  Md. Rule 886.

   Having determined that the Commission had the authority to enter into the 1964 Contract establishing charges for water and sewer connections, and that the 1964 Contract had a duration of 20 years, only one question remains.  That question is whether the County's subsequent enactment of statutory charges higher than those established by the 1964 Contract had any impact upon those contractual charges.

   The record here shows that when the County initially established statutory charges for sewer and water connections in 1967 and when, on two subsequent occasions, it increased those charges, the statutes contained an express provision that no existing obligations or contract rights were to be impaired. Under these circumstances, the statutory charges for sewer and water connections established by the County did not apply to the developers, and, therefore, did not affect the charges established by the existing 1964 Contract.  Because the County failed to make the statutory rates applicable to the[***18] developers, the 1964 Contract rates are now in effect and, in the absence of appropriate legislative modification, will continue in effect until 8 January 1984.

   The trial court did not err when it concluded that the Commission had the authority to enter into the 1964 Contract.  [*676] Its finding that the 1964 Contract had a 20-year duration was supported by sufficient evidence in the record and was not clearly erroneous.  Finally, the trial court did not err when it concluded that the 1964 Contract charges, and not the statutory charges, were applicable after 9 July 1969.  It properly dismissed Maryland Southeastern [**234]Corporation's cross-claim against Crofton.  Accordingly, we shall affirm.

   Judgment affirmed.

   Costs to be paid by appellant Anne Arundel County. 

SUPERMARKETS GENERAL CORPORATION t/a Hochschild KohnDepartment Store et al. v. STATE OF MARYLAND; TOYS "R" US, INC., STORE 511 v.STATE OF MARYLAND 
Nos. 63, 72, September Term, 1979
 
Court of Appeals of Maryland
 
286 Md. 611; 409 A.2d 250; 1979 Md. LEXIS 323

 December  24, 1979, Decided

   PRIOR HISTORY: [***1]  
No. 63 (Supermarkets Gen.) Appeal from the Circuit Court for  Anne Arundel  County; Hopper, J., pursuant to certiorari to the Court of Special Appeals. (Scott's Corp. and Stewart & Co.) Certiorari to the Circuit Court for Baltimore County; DeWaters, J.

   No. 72 (Toys "R" Us, Inc.) Appeal from the Circuit Court for  Anne Arundel  County; Hopper, J., pursuant to certiorari to the Court of Special Appeals.

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

CORE TERMS:  establishment, rational basis, Blue Laws, observe, equal protection, Closing Laws, classification, monopoly, religious, establishment of religion, wholesale, retail establishment, home rule, Fourteenth Amendment, conduct business, secular, refrain, recreation, Sunday Closing Laws, First Amendment, day of rest, police power, presumed, religion, violating, exemption, convicted, commodity, fined, fine

COUNSEL: J. Michael McWilliams, with whom were J. Hardin Marion, Ruth Newman Fahrmeier and Tydings & Rosenberg on the brief, for appellant Toys "R" Us, Inc., Store 511.  Lawrence S. Greenwald, with whom were Harold H. Burns, Jr., and Gordon, Feinblatt, Rothman, Hoffberger & Hollander on the brief, for appellant Supermarkets General Corp. t/a Hochschild Kohn Dept. Store.  James P. Gillece for appellant[***4] Scott's Corporation and Neil J. Dilloff for appellant Stewart & Company, with whom were Piper & Marbury on the brief.

   Amicus curiae brief filed by May Department Stores Company t/a Hecht Company and Woodward & Lothrop, Inc., Franklin Goldstein and Melnicove, Kaufman & Weiner, P.A. on the brief.

   William H. Kenety, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.

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

OPINIONBY: ORTH

OPINION: [*613] [**251] We hold that § 534 L and § 534 N of Article 27, Code (1957, 1976 Repl. Vol.) are constitutionally valid.  The sections are two of the criminal statutes collected under the subtitle "Sabbath Breaking," composed of §§ 492-534V, which are commonly known as Sunday Blue Laws or Sunday Closing Laws.

   Section 534 L concerns Sunday activities in Baltimore County.  Subject to exceptions [**252] specifically designated, subsection (a) prescribes that "it is unlawful on Sunday for any wholesale or retail establishment to conduct business for labor or profit in the usual manner and location or to operate [***5]its establishment in any manner for the general public.  It [*614] shall not cause, direct, or authorize any employee or agent to engage in or conduct business on its behalf on Sunday." Subsection (b) excepts (1) drug stores whose principal business is the sale of drugs and related items, (2) delicatessens, (3) bakeries, (4) gasoline stations, and (5) restaurants. Subsection (c) provides that nothing in the section shall apply to (1) farmers, (2) nurserymen, and (3) "Any business with not more than six (6) persons on any shift on Sunday." Subsection (d) makes the section inapplicable "to any person who by reason of his religious conviction observes a day other than Sunday as his day of rest and actually refrains from labor or secular business on that day." The term "a day other than Sunday" is defined as "any consecutive twenty-four hour period." Any establishment which offers service as its primary business, subsection (e), and industries "where continuous processing or manufacturing is required by the very nature of the process involved," subsection (f), are allowed to operate on Sunday, and subsection (g) permits all recreational activities, sports, and amusements on Sunday. [***6] Subsection (h) expressly disclaims that the section amends any other provision of law with reference to prohibition of Sunday activities and specifically declares that the section shall not be construed so as to permit new or used car dealer to dispose of any motor vehicle.  Subsection (i) authorizes the State's Attorney of Baltimore County to petition the Circuit Court for Baltimore County to enjoin any violation.  Subsection (j) makes any violation a misdemeanor and establishes fines as punishment upon conviction, except that no employee or agent who has been caused or directed by his employer to violate the provisions of the section may be fined.

   Section 534 N concerns Sunday activities in Anne Arundel and Calvert counties.  It tracks § 534 L with these differences: dealers in boats and boating equipment, and fishing equipment and supplies are added to the exempted businesses, subsection (b) 6; nothing in the section applies to any business with not more than eight persons on any one shift on a Sunday, subsection (c) 3; and the fines authorized upon conviction are different, subsection (j).

   [*615] I

   We are called upon to determine the constitutional validity of the two [***7]statutes by reason of the convictions of four retail sales establishments for committing misdemeanors proscribed by them. n1 Scott's Corporation and Stewart and Company were charged with violating § 534 L by operating a business on Sunday in Baltimore County with more than six persons on a shift.  Supermarkets General Corporation, trading as Hochschild Kohn Department Store, and Toys "R" Us, Inc., Store 511, were charged with violating § 534 N by operating a business in Anne Arundel County with more than eight persons on a shift.  At separate trials in the District Court of Maryland, Scott's and Stewart were found guilty and fined. Each noted an appeal to the Circuit Court for Baltimore County.  The cases were consolidated and tried de novo.  The defendants were again convicted and fined. We granted their petitions for certiorari.  At separate trials in the Circuit Court for Anne Arundel County, Hochschild Kohn and Toys were found guilty and fined. Each noted an appeal to the Court of Special Appeals.  We granted certiorari before decision by that court and consolidated all four cases.  At each trial the contention [**253]that the statutes were unconstitutional was duly[***8] raised and rejected by the court.

n1 For the nature and extent of the power of the Maryland judiciary with respect to review of constitutional issues see, Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124, 98 S. Ct. 2207 (1978), citing Ferguson v. Skrupa, 372 U.S. 726, 731, 83 S. Ct. 1028 (1963); City of Baltimore v. State, 281 Md. 217, 230, 378 A.2d 1326 (1977); Perkins v. Eskridge, 278 Md. 619, 624, 366 A.2d 21 (1976); Consolidated Eng. Co. v. Cooper, 246 Md. 610, 615, 228 A.2d 823 (1967); McGowan v. State, 220 Md. 117, 124, 151 A.2d 156 (1959), aff'd, 366 U.S. 420 (1961).

   With respect to the constitutional issues, each of the appellants challenges the statute under which it was convicted on the grounds that it violates equal protection of the law and due process of law under the Fourteenth Amendment to the Constitution of the United States and under Article 24 of the Declaration of Rights, Constitution of Maryland.  Toys also contends that the Sunday Blue Laws are laws respecting an establishment[***9] of religion prohibited by the First Amendment to the federal constitution and Article 36 of the Maryland Declaration of Rights.  Scott's and Stewart [*616] further claim that § 534 L creates a monopoly in contravention of Article 41 of the Maryland Declaration of Rights.

   II

   It is patent that the enactment of Sunday Closing Laws is an exercise of the State's police power.

   Throughout this century and longer, both the federal and state governments have oriented their activities very largely toward improvement of the health, safety, recreation and general well-being of our citizens.  Numerous laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, week-end diversion at parks and beaches, and cultural activities of various kinds, now point the way toward the good life for all.  Sunday Closing Laws, like those [of Maryland] have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations.  [McGowan v. State of Maryland, 366 U.S. 420, 444-445, 81 S. Ct. 1101 (1961).] n2
 
The basic rule is that there is a presumption of the constitutional[***10] validity of statutes.  We put it thus in Edgewood Nursing Home v. Maxwell, 282 Md. 422, 384 A.2d 748 (1978):
 
A statute enacted under the police power carries with it a strong presumption of constitutionality and the party attacking it has the burden of affirmatively and clearly establishing its invalidity; a reasonable doubt as to its constitutionality is sufficient to sustain it.  . . . In other words, the legislature is presumed to have acted within [*617] constitutional limits so that if any state of facts reasonably can be conceived that would sustain the constitutionality of the statute, the existence of that state of facts as a basis for the passage of the law must be assumed.  [Id. at 427.]
 
Accord: Condominium Owners v. Supervisor, 283 Md. 29, 388 A.2d 116 (1978); Davidson v. Miller, 276 Md. 54, 69-70, 344 A.2d 422 (1975), quoting Salsburg v. Maryland, 346 U.S. 545, 553 n. 9, 74 S. Ct. 280 (1954).

n2 Mr. Chief Justice Warren delivered the majority opinion.  Mr. Justice Frankfurter, whom Mr. Justice Harlan joined, filed a separate opinion.  McGowan v. State of Maryland, 366 U.S. 459, 81 S. Ct. 1153 (1961). Mr. Justice Douglas wrote a dissenting opinion.  366 U.S. at 561.

   Hereinafter, unless otherwise indicated, reference to McGowan is to the majority decision of the Supreme Court of the United States.

[***11]

   At the hub of appellants' equal protection and due process contentions is that the exceptions of the various commodities, businesses and persons from the Sunday prohibitions are without rational and substantial relation to the object of the legislation and, therefore, are arbitrary, oppressive and unreasonable. The standards under which this proposition is to be evaluated with respect to equal protection have been often set forth, although no precise formula has been developed.  It is that

   the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others.  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. [**254]A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.  [McGowan, 366 U.S. at 425-426.]
 
This statement is in practical effect an iteration of the rational basis [***12]test used in equal protection analysis and the Supreme Court's application of it to Sunday closing laws serves as clear indication that such laws do not involve a fundamental right nor do they operate to the peculiar disadvantage of a suspect class.  See Wheeler v. State, 281 Md. 593, 600-603, 380 A.2d [*618] 1052 (1977), cert. denied, Maryland v. Wheeler, 435 U.S. 997 (1978).

   The test for constitutionality under the due process clause is
 
whether a statute, as an exercise of the state's police power, bears a real and substantial relation to the public health, morals, safety, and welfare of the citizens of this state.  The exercise by the Legislature of the police power will not be interfered with unless it is shown to be exercised arbitrarily, oppressively or unreasonably.  [Bowie Inn v. City of Bowie, 274 Md. 230, 236, 335 A.2d 679 (1975).]
 
Thus, the companion contentions of equal protection and due process mesh.  There is no practical distinction between the grounds on which the two contentions are argued, and determination of one will resolve the other.

   The objective of the Maryland Sunday Closing Laws has been determined.  In the McGowan[***13] decision of this Court, we said that
 
the basic purpose of such statutes, with their exceptions, is the civil establishment and regulation of a day of rest from work.  . . . The legislative plan is plain.  It is to compel a day of rest from work, permitting only activities which are necessary or recreational.  [220 Md. at 122-123.]
 
The Supreme Court of the United States accepted this Court's determination that the statutes' purpose and effect was "to set aside a day of rest and recreation." McGowan, 366 U.S. at 449.

   In light of the objective of the legislation, we evaluate the constitutionality of the two practically identical statutes under the principles above set out.  It would seem that the General Assembly could reasonably find that the exemption of the operation on Sunday of the specified establishments and businesses and the exceptions as to the designated classes of persons were necessary in the counties concerned, either for the health of the populace or for the enhancement [*619] of the recreational atmosphere of the day.  The excepted retail establishments are all directly related to health or recreation. The rational basis for excepting industries[***14] where continuous processing or manufacturing is necessary by the very nature of the process involved, and for excepting farms and nurserymen whose chores must be performed seven days a week, needs no explication.  The limitation of the number of persons on a shift assures that a number of employees of large establishments will be afforded the day of rest sought by the laws.  We see no invidious discrimination in § 534 L and § 534 N.

   Our view is supported by both our McGowan decision and its affirmation by the Supreme Court.  In that case § 521, as then in effect, generally prohibiting retail sales on Sunday, excepted, as to Anne Arundel County, the sale of certain commodities, and the operation of specified businesses, including those with only one employee exclusive of the owner.  The law was attacked on equal protection and due process grounds.  We recognized that "[t]here can be, and often are, sharp differences of opinion as to what is necessary and what is proper or preferred recreation, but the answers must be given by the legislature, and if they are not clearly arbitrary or oppressively discriminatory, the legislative choices must be sustained." 220 Md. at 123. The [***15]Supreme Court agreed.  It had no difficulty in finding a rational basis for the classifications. 366 U.S. at 425-428.

   Cases of this Court since McGowan support our position.  In Richards Furniture v. [**255] Board, 233 Md. 249, 196 A.2d 621 (1964) the attack on § 521 was renewed on equal protection and due process grounds because of an amendment which provided 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." We noted that McGowan found the basic portion of the act to be constitutional and believed that, with the amendment, it still conformed to the Maryland scheme.  "The operation of large commercial markets or department stores on Sunday would materially interfere with the recreational atmosphere of the day, while small retail [*620] operations will not.  And we think the classifications prescribed by the Act are reasonable and proper and are not of an invidious nature, . . . being designed to prohibit on Sundays large commercial operations.  . . ." Id. at 263-264.

   In Rebe v. State's Attorney, 262 Md. 350, 277 A.2d[***16] 616 (1971) we considered the constitutional validity of § 534 H, as then in effect, which pertained to Prince George's County.  It was in substance the same as present §§ 534 L and 534 N and included as subsection (c) 3 the exemption of a "[s]mall business with not more than six (6) persons on any one shift with the exception of persons or retailers engaged in the sale of automobiles." We relied on the constitutional principles enunciated in McGowan and Richards in concluding that the classification of § 534 H (c) 3 was reasonable and proper, not of an invidious nature, and well calculated to achieve the legislative purpose of providing a day of rest for working persons and an atmosphere of tranquility in which to enjoy it.  Id. at 358.  We cited Rebe with approval in Giant of Md. v. State's Attorney, 267 Md. 501, 517, 298 A.2d 427, appeal dismissed, 412 U.S. 915 (1973).

   Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 320 A.2d 266 (1974) dealt with § 534 J, as then in effect, relating to Sunday activities in Montgomery County, and which was similar to the sections now before us and to former § 534 H, the subject of Rebe.  We disposed of the constitutional[***17] issue summarily with the assertion that "[p]rovisions comparable to that contained in Section 534 J have consistently survived attack on constitutional grounds." Id. at 20.

   Appellants do not profess to quarrel with McGowan's holdings.  In oral argument before us they stated that it was important to emphasize what these appeals were not; they declared that the appeals were "not an attempt to reargue or overturn McGowan." It seems that the appellants are content to consider McGowan as sound law with respect to the Blue Laws as they then existed.  They urge, however, that McGowan was not dispositive of their equal protection, due process and establishment of religion issues at the time they were convicted because amendments subsequent to that decision had materially changed the Blue Laws with respect [*621] to many of the counties.  They contend that they were denied equal protection and due process because the conduct for which they were found to be criminally liable in Baltimore County and Anne Arundel County is permitted as lawful in Montgomery, Prince George's, Worcester and Dorchester counties.  They point to the great and ever increasing number of exceptions [***18]in the Blue Laws and suggest that the classifications now rest on grounds wholly irrelevant to the achievement of the State's objectives, rendering the statutes arbitrary and capricious as having no rational basis. This notion is without merit.  A comparable contention was presented in McGowan, namely that a statutory arrangement which permitted only certain Anne Arundel County retailers to sell specified merchandise was contrary to equal protection because it discriminated unreasonably against retailers in other Maryland counties.  366 U.S. at 427. The Court, fully cognizant of the "myriad of exceptions for various counties, districts of counties, cities and towns throughout the State," id. at 424, commented in answer to the contention:
 
[**256] But we have held that the Equal Protection Clause relates to equality between persons as such, rather than between areas and that territorial uniformity is not a constitutional prerequisite.  With particular reference to the State of Maryland, we have noted that the prescription of different substantive offenses in different counties is generally a matter for legislative discretion.  [Id. at 427.]
 
It found[***19] "no invidious discrimination here." Id. This view is buttressed by the realization that there is no doubt that Maryland could validly grant home rule to each of its 23 counties and to the City of Baltimore to determine the extent of Sunday closings by local option. n3 See Salsburg v. State of [*622]Maryland, 346 U.S. 545, 552, 74 S. Ct. 280 (1954). It is true that with one exception, Maryland had not, in fact, granted home rule powers in regard to Sunday closings.  We have found that the General Assembly did not include the enactment of Sunday Blue Laws in the Express Powers Act (Code, 1957, 1973 Repl. Vol., 1979 Cum. Supp.) Art. 25A, § 5, enacted pursuant to the Home Rule Amendment, Art. XI-A, Md. Const.  The power has been granted specifically to only one home rule subdivision, the City of Baltimore, by Acts 1931, ch. 287. Steimel v. Board, 278 Md. 1, 10-11, 357 A.2d 386 (1976). Therefore, the matter of Sunday closings remains in the General Assembly.  But, of course, it "may itself determine such an issue for each of its local subdivisions, having in mind the needs and desires of each." Salsburg, 346 U.S. at 552. "It has long been the practice of the Maryland[***20] Legislature either to enact local laws or to exempt particular counties from the operation of general laws." Neuenschwander v. Wash. San. Com., 187 Md. 67, 80, 48 A.2d 593 (1946); Stevens v. State, 89 Md. 669, 674, 43 A. 929 (1899).

   Maryland has followed a policy of thus legislating, through its General Assembly, upon many matters of local concern, including the prescription of different substantive offenses in different counties.  The cumbersomeness of such centrally enacted legislation as compared with the variations which may result from home rule is a matter for legislative discretion, not judicial supervision, except where there is a clear conflict with constitutional limitations.  [Salsburg, 346 U.S. at 552-553.]
 
There is no such clear conflict here any more than there is in the differing requirements as to sales of alcoholic beverages in various counties and cities. Code (1957, 1976 Repl. Vol.) Art. 2B.

   The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies.  Great diversities in these respects may exist in two States separated only by an imaginary line.  On one[***21] side of [*623] this line there may be a right of trial by jury, and on the other side no such right.  Each State prescribes its own modes of judicial proceeding.  If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause in the Fourteenth Amendment, there is no solid reason why there may not be such diversities in different parts of the same State.  [Missouri v. Lewis, 101 U.S. 22, 31 (1879).]
 
Since Lewis the Supreme Court has given continued recognition to the principle that uniformity throughout the limits of a state is not in and of itself a prerequisite to meeting the requirements of the fourteenth [**257] amendment's equal protection clause.  Washabaugh v. Washabaugh, 285 Md. 393, 407, 404 A.2d 1027 (1979) and cases therein cited; Davidson v. Miller, 276 Md. 54, 71-77, 344 A.2d 422 (1975). Equal protection "means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances." Salsburg, 346 U.S. at 551, quoting Lewis at 31.  See Matter of Trader, 272 Md. 364, [***22] 383-386, 325 A.2d 398 (1974).

n3 As to constitutional amendments with respect to home rule and implementing legislation see: Md. Const., Art. XI-A (charter counties and Baltimore City), Art. XI-E (municipal corporations), Art. XI-F (code counties); Code (1957, 1973 Repl. Vol., 1979 Cum. Supp.) Art. 25A (chartered counties), Art. 23A (municipal corporations), Art. 25B (code counties).

   As the Maryland Constitution now stands no municipal corporation, by any amendment or addition to its charter, may "permit any act which is prohibited by the laws of this State concerning the observance of the Sabbath Day or the manufacture, licensing or sale of alcoholic beverages." Md. Const., Art. XI-E, § 6.

   To summarize, we agree that territorial classifications, as decisions of this Court indicate, n4 must have a rational basis. But, "a rational basis, and thus constitutionality for equal protection purposes, will be presumed unless 'a clear and convincing showing by the party assailing the legislative classification[***23] [proves] that it does not rest upon any reasonable basis, but is essentially arbitrary.'" Davidson, 276 Md. at 79, quoting Trader, 272 Md. at 400. See Washabaugh, 285 Md. at 408. McGowan established that territorial classifications in the Maryland Closing Laws had a rational basis. Examining the whole body of those laws, McGowan, 366 U.S. at 423, we conclude that the amendments since McGowan [*624] do not destroy their rational basis so as to render them essentially arbitrary.  The evidence here adduced, such as demographic studies, the Maryland Statistical Abstract of 1977 and affidavits of various persons, for example, from residents of Baltimore County, that they shopped on Sunday in counties where stores were open and that they would have shopped in Baltimore County stores on Sunday had they been open, does not persuade us that the statutes now lack a rational basis. The short of it is that as we read McGowan the purpose of providing a day on which there shall be a lesser degree of business activity is a valid reason for Sunday closing laws, and the fact that persons in different areas of the State have different desires and needs with respect[***24] to the extent of business activity in their areas does not create unreasonable classifications. Consequently, the desire of the populace of a few counties to have no reduction in commercial activity on Sunday whatsoever, does not, under the principles of McGowan, require any different result.

n4 See Washabaugh v. Washabaugh, 285 Md. 393, 404-408, 404 A.2d 1027 (1979); Davidson v. Miller, 276 Md. 54, 70-77, 344 A.2d 422 (1975); Matter of Trader, 272 Md. 364, 389-399, 325 A.2d 398 (1974); Bruce v. Dir. Chesapeake Bay Aff., 261 Md. 585, 605-606, 276 A.2d 200 (1971); Md. Coal Etc. Co. v. Bureau of Mines, 193 Md. 627, 642-643, 69 A.2d 471 (1949); Dasch v. Jackson, 170 Md. 251, 269-270, 183 A. 534 (1936).

   We hold that § 534 L and § 534 N do not deny equal protection or due process of law.

   III

   We reject the contention advanced solely by Toys and argued briefly by it, that Maryland's Blue Laws constitute an establishment of religion in violation of the First Amendment to the Constitution of the United States, [***25] made applicable to the states by the Fourteenth Amendment, and Art. 36 of the Maryland Declaration of Rights.  On this issue we find that McGowan is dispositive.  It discussed the religion issue exhaustively, 366 U.S. 429-453, and expressly held that "the Maryland statutes are not laws respecting an establishment of religion." Id. at 452. It carefully explained that it did "not hold that Sunday legislation may not be a violation of the 'Establishment' Clause if it can be demonstrated that its purpose -- evidenced either on the face of the legislation, in conjunction with its legislative history, or in its operative effect -- is to use the State's coercive power to aid religion." Id. at 453. But the Court found none of these purposes was [*625] demonstrated with respect to the statutes as in effect when considered in McGowan.  We said in our McGowan that the
 
argument that the Sunday Blue Laws are unconstitutional as violating the right of religious freedom has been answered many times by this and other courts, which have held that the basic purpose of [**258] such statutes, with their exceptions, is the civil establishment and regulation of a day[***26] of rest from work, not a law respecting the establishment of religion or prohibiting the free exercise thereof, and that the statutes do not offend the First and Fourteenth Amendments to the Constitution of the United States.  . . . We have been shown no reason why we should depart from these holdings.  [220 Md. at 122-123 (citations omitted).]
 
The Supreme Court accepted our determination that the statute's then purpose and effect was not to aid religion. 366 U.S. at 449. We have been shown no reason why we should depart from those holdings now.  The amendments to date on their face, or their legislative history, or their operative effect do not demonstrate that the purpose of the Blue Laws, even if changed since 1959, was changed in a way that would use the State's coercive power to aid religion.

   Toys makes no distinction in its argument between the establishment of religion clause of the First Amendment to the Constitution of the United States and the declarations of Article 36 of the Maryland Declaration of Rights. Therefore, we need not consider whether the two constitutional provisions are in pari materia.  In light of Toys' argument, we have assumed arguendo[***27] that the requirements of the two provisions are identical.

   We hold that the Sunday Closing Laws in Maryland do not "constitute the establishment of religion in violation of the First Amendment to the United States Constitution and Article 36 of the Maryland Declaration of Rights."

   [*626] IV

   Article 41 of the Declaration of Rights, Constitution of Maryland, declares "That monopolies are odious, contrary to the spirit of a free government and the principles of commerce, and ought not to be suffered." There seems to be some question as to whether the constitutional ban "extends to anything other than monopolies in the strict sense, that is, an exclusive right or privilege granted by the sovereign," Grempler v. Multiple List. Bureau, 258 Md. 419, 424, 266 A.2d 1 (1970), but even if it did, it would not extend to the Sunday Closing Laws as Scott's and Stewart would have it.
 
A monopoly within the prohibition of our Declaration of Rights, is a privilege or power to command and control traffic in some commodity, or the operation of a trade or business to the exclusion of others, who otherwise would be at liberty to engage therein, necessarily implying the suppression of[***28] competition, and ordinarily causing a restraint of that freedom to engage in trade or commerce which the citizen enjoys by common right.  A monopoly is more than a mere privilege to carry on a trade or business or to deal in a specified commodity. It is an exclusive privilege which prevents others from engaging therein.  A grant of privileges, even though monopolistic in character, does not constitute a monopoly in the constitutional sense when reasonably required for protection of some public interest, or when given in return for some public service, or when given in reference to some matter not of common right.  [Levin v. Sinai Hosp. of Balto., 186 Md. 174, 182-183, 46 A.2d 298 (1946).]
 
Scott's and Stewart may operate on Sunday in Baltimore County with not more than six persons on any one shift equally with others in their class.  They may operate in any other county, as far as the closing laws are concerned, to the same extent as all others in their class may operate in the particular county. The desirability of doing so, economically, practically, or otherwise, is a matter of business judgment to [*627] be exercised by them, not a matter of law for the courts. [***29] Grempler, 258 Md. at 430. Section 534 L does not favor "small establishments" over "large ones".  It does not exclude Scott's and Stewart or others like them from the Sunday market; it simply provides, uniformly, conditions under which they may operate.  Section 534 L and other sections of the Sunday Closing [**259] Laws are not and do not result in a grant to one to the exclusion of others, necessarily implying the suppression of competition.

    We hold that a monopoly within the contemplation of Art. 41 of the Declaration of Rights is not suffered by § 534 L under which Scott's and Stewart were convicted.

   V

   Subsection (a) of § 534 L of the Blue Laws generally forbids any wholesale or retail establishment to conduct business on Sunday.  Subsection (c) 3 reads: "Nothing in this section applies to . . . [a]ny business with not more than six (6) persons on any one shift on Sunday." Subsection (d) prescribes: "Nothing in this section is applicable to any person who by reason of his religious conviction observes a day other than Sunday as his day of rest and actually refrains from labor or secular business on that day." Scott's and Stewart construe these provisions as requiring[***30] that a conviction of a wholesale or retail establishment for unlawfully conducting business on Sunday with more than six persons on any one shift include proof by the State that more than six of the persons were not excepted by subsection (d).  In other words, they believe that subsection (d) defines "persons" as used in subsection (c) 3. n5 We do not read the statute that way.

n5 If Scott's and Stewart were correct, an establishment otherwise under the restrictions of § 534 L could lawfully operate on Sunday with a shift consisting of not more than six persons who, by reason of their religious convictions, observe Sunday as a day of rest plus any number of persons who, by reason of their religious convictions, observe a day other than Sunday as a day of rest and actually refrain from labor or secular business on that day.

   The exclusion in subsection (d) would not permit establishments such as appellants to close on a different day and open on Sunday with more than six employees.

   [*628] Section 534 L looks[***31] only to "any wholesale or retail establishment" in its proscriptions.  Subsection (a).  The section does not prohibit conduct by a person except as that person may constitute a business; it does not reach a person as an employee or agent of a business.  The sanctions for violation of its provisions are directed to businesses, and insofar as they relate to a person, it is only to a person as a wholesale or retail establishment. n6 Subsection (a) forbids any wholesale or retail establishment to "cause, direct, or authorize any employee or agent to engage in or conduct business on its behalf on Sunday." There is no provision against an employee or agent conducting business.  Therefore, it is manifest that the exemption in subsection (d) of "any person" who meets the conditions therein set out from the applicability of the section contemplates only persons as wholesale or retail establishments and not as employees or agents of such establishments. It in no way relates to subsection (c) 3 as defining or qualifying the word "persons" as used therein.  Subsection (d) provides no more than another business exemption to the prohibitions of § 534 L.  It is not an element of the crime arising [***32]from an establishment operating on Sunday with more than six employees on any one shift.  We hold that the State was not required, as a matter of law, to prove that more than six of the employees of Scott's and Stewart, working on their respective shifts on Sunday were not within the terms of subsection (d). n7

n6 Subsection (j), which establishes fines as the punishment for violations, expressly declares that "[n]othing contained herein shall be construed to permit any fine upon any employee or agent who has been caused or directed by his employer to violate the provisions of this section." But it appears that even an employee or agent freely agreeing to work on Sunday would not be culpable.  The section simply does not proscribe any conduct by such person.

n7 Scott's and Stewart argue that what the State would be required to prove under their interpretation of the statute is "that the defendant operated with more than six persons who observe Sunday as their day of rest." What would in fact be required if their contention were valid is proof of operation with more than six persons who do not by reason of their religious conviction observe a day other than Sunday as a day of rest and actually refrain from work or secular business on that day.  They err in the assumption that all persons either observe Sunday as a day of rest or, by reason of religious convictions, observe some other day and actually refrain from work or secular business on that day. There are, however, persons with no religious conviction, and persons who, despite a religious conviction calling for a day of rest, do not observe it.

[***33]

   [*629] [**260] VI

   The Maryland Sunday Blue Laws have been soundly denounced by some persons. They have been characterized as unwise, complex, a patchwork, a crazy quilt, a labyrinth, a legal maze, unnecessarily befuddling statutory crabgrass, an inconvenience, a hypocrisy.  But even if they were, they could not for those reasons be voided by the judiciary.  As we have indicated, absent some constitutional infirmity the judiciary simply has no power to interfere.  We have determined that § 534 L and § 534 N, contrary to appellants' contentions, are constitutionally valid.  The statutes must stand firm until the General Assembly of Maryland changes them.  If it concludes that the public welfare requires that Sunday business activities no longer be proscribed in Baltimore County and Anne Arundel County, or in fact in any other county, or city or town, it has the power and the means to effectuate its conclusion.

   Judgments affirmed; costs to be paid by appellants. 

STATE OF MARYLAND v. STEPHEN DUNCAN 
No. 118, September Term, 1979
 
Court of Appeals of Maryland
 
286 Md. 541; 408 A.2d 392; 1979 Md. LEXIS 315

 December  13, 1979, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Goudy, J.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Orth, Cole and Davidson, JJ. 

OPINION: [*541] [**392] PER CURIAM ORDER

   It is this 13th day of December, 1979

   ORDERED, by the Court of Appeals of Maryland, that the [*542] judgment of the Court of Special Appeals be, and it is hereby, affirmed in part as to the judgment and modified as to the lack of a new trial and case remanded to that Court with direction to remand the case to the Circuit Court for Anne Arundel County for a new trial.  See Countess v. State, Nos. 36 and 49, September Term, 1979, decided December 10, 1979. 

ATTORNEY GENERAL OF THE STATE OF MARYLAND v. ANNE ARUNDELCOUNTY SCHOOL BUS CONTRACTORS ASSOCIATION, INC. et al. 
No. 12, September Term, 1978
 
Court of Appeals of Maryland
 
286 Md. 324; 407 A.2d 749; 1979 Md. LEXIS 288

 November  9, 1979, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Filed December 10, 1979; Denied December 20, 1979. 

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Williams, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County vacated and case remanded to that court with instructions to dismiss as moot.  Costs to be paid by appellant.

CORE TERMS:  moot, injunction, per mile, withhold, effective, recur, permanent injunction, school bus, transportation, expiration, interlocutory injunction, enjoined, recurrence, gasoline, imperative, manifest, urgency, important public, summary judgment, order to obtain, average price, school year, county rate, per gallon, mootness, restraining, unexplained, completion, reargument, buses

COUNSEL: Charles O. Monk, II, Assistant Attorney General, with whom were George A. Nilson, Deputy Attorney General, Thomas M. Wilson, [***3]  III and Michael F. Brockmeyer, Assistant Attorneys General on the brief, and Naomi F. Samet, Assistant Attorney General on supplemental brief, for appellant.

   James J. Doyle, Jr., with whom were Mary R. Craig and Mareen L. Duvall, Jr., on the brief, and S. Ann Brobst and Sherbow, Shea & Doyle on supplemental brief, for appellees.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Orth and Cole, JJ., and reargued before Murphy, C. J., and Smith, Digges, Eldridge, Orth, Cole and Davidson, JJ.  Davidson, J., delivered the opinion of the Court.  Smith and Eldridge, JJ., dissent.  Smith, J., filed a dissenting opinion at page 330 infra , in which Eldridge, J., concurs.

 OPINIONBY: DAVIDSON

OPINION: [*325] [**751] Maryland Code (1978), § 5-201(c)(13) of the Education Article provides that the State shall pay for "the necessary costs of transporting students . . . to public schools." n1 The State reimburses the counties for their costs according to a formula.  2 Md. Register 1314, 1482-83. n2 However, the counties may supplement the amount reimbursed.  § 7-601 of [*326]the Education Article.  The total amount of reimbursement is determined annually. [***4] 

n1 At the time of the events pertinent to this case, the provisions concerning school bus operations were codified in Md. Code (1957, 1969 Repl. Vol.), Art. 77.  By the Acts of 1978, ch. 22, these provisions were placed in Md. Code (1978), titles 2, 5, and 7 of the Education Article.

n2 The State Board of Education's bylaws, rules, and regulations have the force and effect of law.  § 2-205 (c) (2) of the Education Article.

   Some counties own and operate school buses while others contract for essentially all of the needed buses and operators.  See § 7-602 of the Education Article.  While the Board of Education of Anne Arundel County (Board) owns some buses, it contracts for the great majority of its needed school bus services. Many of the school bus contractors belong to the Anne Arundel County School Bus Contractors Association, Inc. (Association), a trade association.

   In February, 1975, the Association's request for a county rate supplement was stricken, for some unexplained reason, from the 1975-76[***5] budget proposed by the Board.  In September, 1975, the Association requested a $.06 per mile county rate supplement.  Thereafter, the Association agreed to an audit which was completed in January, 1976.  As a result of the audit, the Board included a $.06 per mile rate supplement in its proposed budget for the year 1976-77.  Again, for some unexplained reason, this proposed county rate supplement was stricken.  The Association learned of this deletion sometime before 30 March 1976.

   At an Association meeting held on 30 March 1976, various members agreed that as of the close of school on 2 April 1976, they would stop driving if they did not obtain a rate supplement of $.06 per mile retroactive to 1 September 1975. On 31 March 1976, the Association's president informed the Supervisor of Transportation of that decision.  On 1 April 1976, there was a meeting between the Association and the Board at which the Board asked the Association to put its demands in writing, and the Association complied.  A further meeting was scheduled for 7 April 1976.

   On 2 April 1976, in the Circuit Court for Anne Arundel County, the Board obtained an ex parte injunction restraining the appellees, the[***6] Association and certain of its members (Association), from refusing to drive. On 9 April 1976, this injunction was extended for 10 days.  On 12 April 1976, the trial court permitted the appellant, the Attorney General of the State of Maryland (Attorney General), to intervene.  On 13 April 1976, he filed a bill of complaint seeking a declaration [*327] that the Association, by threatening to withhold services in order to obtain an agreed upon rate supplement, "engaged in an unlawful combination or conspiracy in unreasonable restraint of trade" in violation of the Maryland Antitrust Act, Md. Code (1975), § 11-204(a)(1) of the Commercial Law Article.  In addition, the Attorney General sought an interlocutory injunction and a permanent injunction restraining the Association for a period of 10 years from further violations of the Antitrust Act, from itself withholding transportation services from the Board, and from inducing others to withhold such services.  On 14 April 1976, the trial court, with the agreement and consent of the parties, issued an interlocutory injunction continuing the ex parte injunction of 2 April 1976 through 1 September 1976.

   [**752] On 18 July 1977, [***7] the Attorney General filed a motion for summary judgment. On 8 September 1977, the Association filed a motion for summary judgment. On 12 December 1977, the trial court entered an order denying the Attorney General's motion and granting the Association's motion.  We issued a writ of certiorari to the Court of Special Appeals before consideration by that Court.  After argument and reargument, we find the case to be moot. We shall dismiss the appeal.

   Generally, appellate courts do not decide academic or moot questions.  A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.  State v. Ficker, 266 Md. 500, 506-07, 295 A.2d 231, 234-35 (1972); Lloyd v. Board of Supervisors of Elections, 206 Md. 36, 39, 111 A.2d 379, 380 (1954); State v. Haas, 188 Md. 63, 66, 51 A.2d 647, 648 (1947). See Bishop v. Governor of Md., 281 Md. 521, 524-25, 380 A.2d 220, 222-23 (1977). Accordingly, an injunction should not issue if the acts sought to be enjoined have been discontinued or abandoned.  State v. Ficker, 266 Md. at 507, 295 A.2d at[***8] 235; United Bhd. of Carpenters v. United Slate Tile & Composition Roofers, 181 Md. 280, 282, 29 A.2d 839, 840 (1943).

   Here the record shows that on 31 March 1976, the Association threatened to withhold transportation services.  [*328] That threat was never carried out. On 2 April 1976, an injunction was issued which, with the agreement and consent of the Association, was extended to 1 September 1976.  During the effective period of the injunction, the Association neither threatened to stop services nor did it in fact stop services.  Moreover, the record shows that the Association ultimately received and accepted a $.02 per mile supplement for the 1977-78 school year, thus terminating the controversy.  There is no evidence to show that since the expiration of the injunction or the termination of the controversy, the Association either threatened to stop services or did in fact stop them.  Thus, the record establishes that the activities which the Attorney General seeks to have enjoined have been discontinued.  There is no existing controversy between the parties and no effective remedy the court can provide. Accordingly, the case is moot.

   Of course, a court may decide[***9] a moot question where there is an imperative and manifest urgency to establish a rule of future conduct in matters of important public concern, which may frequently recur, and which, because of inherent time constraints, may not be able to be afforded complete appellate review.  State v. Ficker, 266 Md. at 507, 295 A.2d at 235; Lloyd v. Board of Supervisors of Elections, 206 Md. at 43, 111 A.2d at 381. See Bishop v. Governor of Md., 281 Md. at 525, 380 A.2d at 223. Periods of two and three months have been held insufficient to afford complete appellate review, Sheehy v. Thomas, 155 Md. 688, 693, 142 A. 506, 507 (1928) (3 months); Close v. Southern Md. Agr. Ass'n, 134 Md. 629, 632, 108 A. 209, 210-11 (1919) (2 months), whereas periods of five and 12 months have been deemed sufficient for this purpose, Maryland Tobacco Growers' Ass'n v. Maryland Tobacco Authority, 267 Md. 20, 25-26, 296 A.2d 578, 580-81 (1972) (12 months); Lloyd v. Board of Supervisors of Elections, 206 Md. at 44, 111 A.2d at 382 (5 months).

   While we recognize that this case involves a matter of important public concern, we are persuaded that there is no imperative or manifest urgency to [***10]establish a rule of future conduct.  In the absence of any evidence to show that in the four years since the expiration of the injunction, the [*329]Association has threatened to withhold services, or has in fact withheld them in order to obtain an agreed upon rate supplement, we can only conclude that similar activities and controversies between these parties are unlikely to recur.

   In addition, there are no inherent time constraints which would necessarily prevent appellate review.  There were five months between the Association's decision to withhold services on 30 March 1976 and the [**753] expiration of the interlocutory injunction on 1 September 1976.  Thus, even should a controversy with the same chronology as the present one occur in the future, there would be sufficient time for appellate review.  Maryland Tobacco Growers' Ass'n v. Maryland Tobacco Authority, 267 Md. at 25-26, 296 A.2d at 580-81; Lloyd v. Board of Supervisors of Elections, 206 Md. at 44, 111 A.2d at 382. Moreover, because the rate of reimbursement for providing transportation services is established annually, and is effective for one year, it is possible that, under different circumstances, [***11] similar activities and controversies would arise even earlier.

   In this case, a peculiar combination of circumstances prevented the completion of appellate review.  For two successive years, rate supplements which had been included in the Board's budget were, for unexplained reasons, deleted as late as February.  It was not until sometime in March, 1976 that the Association learned that it was not to receive its anticipated rate supplement. Moreover, approximately 20 months elapsed from the time the Attorney General filed his complaint on 13 April 1976 until the trial court ruled on the cross motions for summary judgment on 12 December 1977.  The Attorney General on 13 and 14 April 1976 did in fact request that the time for filing an answer and for notice of an oral deposition, respectively, be shortened.  Yet, although the Attorney General knew on 14 April 1976 that the interlocutory injunction to which he had agreed and consented would expire on 1 September 1976, he made no other attempt throughout this 20 month period to expedite this case; neither did he attempt to expedite the proceedings in this Court.  It is unlikely that a set of circumstances similar to those which prevented[***12] completion of appellate review in this case would [*330] in the future coalesce to prevent completion of appellate review of other similar activities and controversies should they recur.

   None of the considerations which justify this Court in deciding a moot case is present.  Under the circumstances here, we decline to decide this moot case. Md. Rule 835(a)(6).

   Judgment of the Circuit Court for Anne Arundel County vacated and case remanded to that court with instructions to dismiss as moot.

   Costs to be paid by appellant.

DISSENTBY: SMITH

DISSENT:  
Smith, J., dissenting:

   I respectfully dissent on two grounds.  First of all, I do not believe the case is moot. Secondly, if it is moot, then I believe this to be the type of controversy which under our cases we should decide because of its future importance.

   The majority opinion refers to the fact that "the record shows that the Association ultimately received and accepted a $.02 per mile supplement for the 1977-78 school year, thus terminating the controversy." Although an affidavit on September 7, 1977, of the president of the School Bus Contractors Association indicates that an additional $.02 per mile from Anne Arundel[***13] County had "in fact been provided for the 1977-1978 school year," he did not indicate nor has anyone else said that this terminated the controversy.  The demand here was for $.06 per mile, not $.02.  Accordingly, I am unable to comprehend how such a small increase would end the dispute, particularly in the light of what has happened to gasoline prices.

   The majority opinion states that the relief sought by the Attorney General included "a permanent injunction restraining the Association for a period of 10 years from further violations of the Antitrust Act, from itself withholding transportation services from the Board, and from inducing others to withhold such services." It is apparent that the majority has completely overlooked this fact when it [*331] states that there is now "no effective remedy the court can provide" in this case.  Maryland Code (1975) § 11-209, Commercial Law Article, authorizes the Attorney General to "institute proceedings in equity to prevent or restrain violations of [the antitrust provisions of] § 11-204," and a court [**754] which determines that "a violation has been committed" is authorized by that section to "[p]revent continuation or[***14] renewal of the violation in the future."

   Black's Law Dictionary (5th ed. 1979) defines "moot":
 
Moot. A subject for argument; unsettled; undecided.  A moot point is one not settled by judicial decisions.

   A case is "moot" when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. Leonhart v. McCormick, D.C.Pa., 395 F. Supp. 1073, 1076. Question is "moot" when it presents no actual controversy or where the issues have ceased to exist. Matter of Lawson's Estate, 41 Ill.App.3d 37, 353 N.E.2d 345, 347.

   Generally, an action is considered "moot" when it no longer presents a justiciable controversy because issues involved have become academic or dead. Sigma Chi Fraternity v. Regents of University of Colo., D.C. Colo., 258 F.Supp. 515, 523. Case in which the matter in dispute has already been resolved and hence, one not entitled to judicial intervention unless the issue is a recurring one and likely to be raised again between the parties, Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1. [Id. at 909.]
 
In Hayman v. St. Martin's, 227 Md. 338, 343, 176 A.2d[***15] 772 (1962), Chief Judge Brune said for this Court, "[T]he 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."

   Certainly the case is no more moot now than it was on May 4 when we directed reargument with the parties requested [*332] to address themselves to the question of whether "the conduct of the appellees [is] excepted from the coverage of the antitrust laws under the principles set forth in Eastern Rail. Pres. Conf. v. Noerr Motor Frgt., Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), and similar cases."

   The majority notes, "In the absence of any evidence to show that in the four years since the expiration of the injunction, the Association has threatened to withhold services, or has in fact withheld them in order to obtain an agreed upon rate supplement, we can only conclude that similar[***16] activities and controversies between these parties are unlikely to recur." Such activities and controversies between these particular parties may or may not recur. However, the majority ignores the fact that the public press reported relative to more than one county other than Anne Arundel when schools reopened in September of this year that bus operators and associations similar to that here before the Court were debating whether to withhold school bus services until more money was paid.  Under the normal budgetary process appropriations for school transportation at the State level, from whence comes virtually all of such funds, were made a number of months in advance of the beginning of the current fiscal year on July 1.  County tax levies were struck prior to July 1. Thus any decision at the county level relative to supplementation was made in advance of July 1 and probably made before the full impact of current increased gasoline costs was comprehended.

   The economic forces which produced the current controversy back in 1976 are even more pronounced today so that "a $.02 per mile supplement" certainly will not eliminate such a controversy.  This is well illustrated by the fact [***17]that the records maintained by Maryland AAA indicate that at the end of March 1976, immediately prior to the filing of the bill of complaint in this cause, the average price paid in Maryland for "regular" gasoline was 58.8 cents per gallon. At the end [*333] of April 1979, immediately prior to our order for reargument in this case, the average price was 77 cents per gallon. At the end of September 1979 the [**755] average price was 98.6 cents per gallon. It seems to me that it is foolhardy to believe that this or a similar controversy will not again come to the surface.

   It is instructive to note what Judge Hammond said for the Court in Lloyd v. Supervisors of Elections, 206 Md. 36, 111 A.2d 379 (1954), quoted for the Court by Judge Digges in Reyes v. Prince George's County, 281 Md. 279, 300, 380 A.2d 12 (1977):
 
[T]he better considered and reasoned cases take the view that only where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest, will there be justified a departure from the general rule and practice of not deciding academic questions.  They hold that if the public interest clearly[***18] will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Court may find justification for deciding the issues raised by a question which has become moot, particularly if all these factors concur with sufficient weight.  [Id. at 43.]

   This case certainly "involve[s] a relationship between government and its citizens . . . ." Moreover, "upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision . . . ."

   The majority would do well to reflect upon what Judge Digges said for the Court in Reyes:
 
We are loath to conclude that, simply because a judgment of this Court can no longer affect the rights of the parties who have brought the dispute [*334] before us for adjudication, it is necessarily beyond the judicial function without regard to the public importance of the issues, [***19] the likelihood of recurrence, and other similar factors.  Particularly where a controversy is live when appealed to this Court and the opposing positions are vigorously presented, so that the action is clearly suitable for resolution through the judicial process, in the absence of a clear constitutional prohibition, either express or reasonably implied, we decline to infer that it may never be judicially resolved.  [Id. 281 Md. at 297.]

   There are important legal issues here which should be resolved.  The trial judge dismissed the complaint on the theory that the association here was a labor union and thus exempt from the statute.  On our own motion we asked the parties to brief and argue whether or not another exception to the antitrust laws might be applicable.  There are differing views on both of these subjects. If there were a violation here, then I am of the view that the public is entitled to have us so determine in order that it may be protected in the future at a time when we are faced with sharply increasing gasoline prices, as illustrated by the figures I have set forth.  On the other hand, if this statute does not prohibit the activities concerning which complaint[***20] was here made, the defendants and persons similarly situated are entitled to be informed of that fact in order that they may take due notice thereof and govern themselves accordingly -- and the General Assembly is entitled to know that fact because it may wish to enact legislation upon the subject.  Our decision on the issues presented in this case could affect the rights of the parties to this proceeding and others similarly situated for many years into the future.

   In summary, I do not believe this cause is moot, but if it is moot, then it presents the very type of issue which our cases indicate we should address. 

S.A.S. PERSONNEL CONSULTANTS, INC. v. PAT-PAN, INC. 
No. 114, September Term, 1978
 
Court of Appeals of Maryland
 
286 Md. 335; 407 A.2d 1139; 1979 Md. LEXIS 289

 November  9, 1979, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Goudy, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Order reversed.  Case remanded to the Circuit Court for Anne Arundel County for further proceedings in accordance with this opinion.  Costs to be paid by appellee.

CORE TERMS:  doing business, employment agency, breach of contract, registered, solicitation, licensed, procured, effective, unregistered, unqualified, license, interstate, appearing, referral, personal jurisdiction, transacting, shipment, substantial part, burden of proof, metropolitan area, unlicensed, inventory, personnel, telephone, transacts, listing, advertisement, hospitality, restaurant, subtitle

COUNSEL: James E. Savitz, with whom were Gimmel & Weiman on the brief, for appellant.

   Thomas P. Brown, III, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, [***3] Orth, Cole and Davidson, JJ.  Davidson, J., delivered the opinion of the Court.

OPINIONBY: DAVIDSON

OPINION: [*336] [**1140] This case presents two questions.  The first is whether, under Maryland Code (1975), § 7-301 of the Corporations and Associations Article, an employment agency, which is a foreign corporation not registered or qualified in Maryland, and which procured an employee for a Maryland employer, is "doing business in this State" and is therefore precluded from maintaining a suit in Maryland for an alleged breach of contract. The second is whether Maryland Code (1957, 1972 Repl.Vol., 1978 Cum.Supp.), Art. 56, § 161 requires such an employment agency to be licensed in order to recover damages in Maryland for such an alleged breach of contract.

    The facts appearing in the pleadings and affidavits, none of which were disputed in the trial court, show that the appellant, S.A.S. Personnel Consultants, Inc. (S.A.S.), is an employment agency incorporated in the District of Columbia, which at the time here relevant was not registered, qualified or licensed in Maryland.  The appellee, Pat-Pan, Inc. (Pat-Pan), is the owner of a restaurant located in Anne Arundel County, Maryland. [***4] On 14 October 1977, Pat-Pan called S.A.S. at its District of Columbia office.  During that telephone conversation, Pat-Pan indicated that it needed a chef.  It agreed "to work with" S.A.S. as an employment agency, and S.A.S. informed it that it would be responsible for S.A.S.'s fees.  On the same day, S.A.S. sent Pat-Pan a letter in which it described itself as the "largest hospitality personnel service [*337]in the Washington metropolitan area." It enclosed a copy of its advertisement in Washingtonian Magazine, a periodical circulated in Maryland, and a copy of its "contract and fee schedule."

   On or about 21 October 1977, S.A.S. referred Mr. Gilles L. Foucard to Pat-Pan.  After an interview, Pat-Pan told S.A.S. that even though it was interested in Mr. Foucard, it would not then hire him because business was "seasonably slow." Pat-Pan indicated that it would reevaluate its position and contact S.A.S. in mid-January, [**1141] 1978.  Instead, in mid-January, Pat-Pan hired Mr. Foucard without contacting S.A.S. or paying a fee.

   On 7 June 1978, in the Circuit Court for Anne Arundel County, S.A.S. filed a declaration and a motion for summary judgment seeking damages for[***5] an alleged breach of contract. Pat-Pan filed a "Motion Raising Preliminary Objections" under Maryland Rule 323, on the grounds, insofar as here relevant, that S.A.S. lacked capacity to sue because it was a foreign corporation "doing business" in Maryland without being registered under § 7-301 of the Corporations and Associations Article, or licensed under Art. 56, § 161.  It requested that the suit be dismissed with prejudice.  On 7 August 1978, the trial court entered an order which granted the motion and dismissed the case.  We issued a writ of certiorari to the Court of Special Appeals before consideration by that Court. We shall reverse.

   I

   Maryland Code (1975), § 7-202(a) of the Corporations and Associations Article provides:
 
"Unless it is qualified to do business under § 7-203 of this subtitle, before doing any interstate or foreign business in this State, a foreign corporation shall register with the Department."
 
[*338] Section 7-203(a) of the Corporations and Associations Article provides:
 
"Before doing any intrastate business in this State, a foreign corporation shall qualify with the Department."
 
Section 7-301 of the Corporations[***6] and Associations Article provides in pertinent part:
 
"If a foreign corporation is doing or has done any intrastate, interstate, or foreign business in this State without complying with the requirements of Subtitle 2 of this title, neither the corporation nor any person claiming under it may maintain a suit in any court of this State.  . . ."
 
The initial question before us is whether an unregistered or unqualified foreign corporation, which procured an employee for a Maryland employer, is "doing business in this State." n1

n1 Before 1964, the words "doing business," in Md. Code (1957), Art. 23, § 91(c), now Md. Code, § 7-301 of the Corporations and Associations Article, applicable to foreign corporations required to be registered in order to sue in the courts of Maryland, and the words "doing business," in Md. Code (1957), Art. 23, § 92(a), applicable to obtaining personal jurisdiction over foreign corporations, were equated by this Court which construed the phrase "doing business" in the same way for both purposes.  G.E.M., Inc. v. Plough, Inc., 228 Md. 484, 486, 180 A.2d 478, 480 (1962). By the Acts of 1964, ch. 95, effective 1 June 1964, the Legislature enacted Md. Code (1957), Art. 75, § 96(a) (1), now Md. Code (1974), § 6-103 of the Courts and Judicial Proceedings Article. Insofar as here relevant, it used the words "transacting any business" as a basis for obtaining personal jurisdiction over foreign corporations.  By the Acts of 1967, ch. 532, effective 1 June 1967, Md. Code (1957), Art. 23, § 92(a) was repealed.

   Recent cases suggest that the term "doing business" in § 7-301 of the Corporations and Associations Article is not coterminous or synonymous with the term "transacting any business" in § 6-103 of the Courts and Judicial Proceedings Article.  See Mohamed v. Michael, 279 Md. 653, 657-58, 370 A.2d 551, 553-54 (1977); Harris v. Arlen Properties, Inc., 256 Md. 185, 195-96, 260 A.2d 22, 27-28 (1969); Novack v. National Hot Rod Ass'n, 247 Md. 350, 353-54, 231 A.2d 22, 24-25 (1967); Van Wagenberg v. Van Wagenberg, 241 Md. 154, 164-66, 215 A.2d 812, 817-18 (1965); Gilliam v. Moog Indus., Inc., 239 Md. 107, 111, 210 A.2d 390, 392-93 (1965). See also United Merchants & Mfrs. Inc. v. David & Dash, Inc., 439 F.Supp. 1078, 1083 (D.Md. 1977); Premier Indus. Corp. v. Nechamkin, 403 F.Supp. 180, 183-84 (1975); Beaty v. M.S. Steel Co., 276 F.Supp. 259, 262 (D.Md. 1967). Because this issue was neither raised or decided in the trial court, nor raised in this Court, we shall not consider it here.  Md. Rule 885. Accordingly, this Court's analysis rests on those cases which have construed the phrase "doing business" in the same way for both purposes.  See Premier Indus. Corp. v. Nechamkin, 403 F.Supp. at 184 n.6.

[***7]

   [*339] "[A] foreign corporation is doing business within a state when it transacts some substantial part of its ordinary business therein." Chesapeake Supply & Equip. Co. v. Manitowoc Eng'r Corp., 232 Md. 555, 562, 194 A.2d 624, 627 (1963). The party asserting that an unregistered or unqualified foreign corporation is "doing business within the state" carries the burden of proof. Rudden v. Gro-Plant Indus., Inc., [**1142] 269 Md. 173, 176, 304 A.2d 812, 814 (1973). See Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 786 (D.Md. 1978); United Merchants & Mfrs. Inc. v. David & Dash, Inc., 439 F.Supp. 1078, 1087 (D.Md. 1977).
 
   A determination whether a particular act or set of acts constitutes "doing business" depends upon the facts of each individual case, and rests not on a single factor, but rather on the nature and extent of the business and activities which occur in the forum state.  White v. Caterpillar Tractor Co., 235 Md. 368, 372, 201 A.2d 856, 858 (1964); State ex rel. Bickel v. Pennsylvania Steel Co., 123 Md. 212, 218, 91 A. 136, 138 (1914). Factors which may be taken into account include the payment of state taxes; the maintenance in[***8] the state of property, an office, telephone listings, employees, agents, inventory, research and development facilities, advertising, and bank accounts; the making of contracts; and the extent or pervasiveness of management functions including supervision and control of distributors and services for customers within the state.  Gilliam v. Moog Indus., Inc., 239 Md. 107, 109, 210 A.2d 390, 391 (1965); White v. Caterpillar Tractor Co., 235 Md. at 373, 201 A.2d at 858; Thomas v. Hudson Sales Corp., 204 Md. 450, 464-65, 105 A.2d 225, 231 (1954). Where there is solicitation, shipment of goods, and an extensive set of activities or management functions, foreign corporations have been held to be "doing business." White v. Caterpillar Tractor Co., 235 Md. at 374, 201 A.2d at 859; Thomas v. Hudson Sales Corp., 204 Md. at 465-66, 105 A.2d at 231. Foreign corporations which merely solicit orders or sales, or engage in activities in Maryland directly related to such solicitation or sales, including the interstate delivery of goods, have, however, been held not to be "doing business." Gilliam v. Moog Indus., Inc., 239 Md. at 109, 210 A.2d at 391; [*340]G.E.M., Inc. [***9]  v. Plough, Inc., 228 Md. 484, 488, 180 A.2d 478, 481 (1962); Feldman v. Thew Shovel Co., 214 Md. 387, 396-97, 135 A.2d 428, 432 (1957). See United Merchants & Mfrs. Inc. v. David & Dash, Inc., 439 F.Supp. at 1087-89; Johns v. Bay State Abrasive Prods. Co., 89 F.Supp. 654, 660 (D.Md. 1950).

   Here there are insufficient facts to show that S.A.S. was "doing business" in Maryland.  Its office was in the District of Columbia where it was incorporated. Before 30 January 1978, it did not maintain an office in Maryland.  None of its employees was physically present in Maryland, and none of them conducted employment agency operations in Maryland.  There are no facts to show that S.A.S. paid Maryland taxes, maintained a telephone listing or bank accounts in Maryland, or that it exercised any managerial functions in Maryland.  The fact that S.A.S. advertised in Washingtonian Magazine establishes nothing more than mere solicitation. S.A.S.'s statement that it was "the largest hospitality personnel service in the Washington metropolitan area" does not support a rational inference that any portion of its business was necessarily conducted in Maryland, and establishes, at best, [***10] mere solicitation. The only other fact tending to show that S.A.S. was "doing business" within the State of Maryland was its referral of Mr. Foucard to Pat-Pan which subsequently employed him at its Maryland restaurant. The referral of potential employees by S.A.S. is analogous to the shipment of goods by a foreign manufacturer.  Thus, the advertisement, statement, and referral establish only that S.A.S. solicited business in and did the equivalent of shipping goods into the State of Maryland. 

   Under the present circumstances, we hold that S.A.S. was not "doing business" in Maryland.  Accordingly, under § 7-301 of the Corporations and Associations Article, S.A.S., although unregistered and unqualified, is not precluded from maintaining a suit in Maryland.  Courts in other jurisdictions which have considered this question under similar statutes have reached the same result.  Financial Corp. v. Executive Search, Inc., 16 Ariz.App. 115, 117, 491 P.2d 504, 506 (1971); Electronics Devices, Inc. v. Mark Rogers Assocs., 60 Misc.2d 322, 325, 303 N.Y.S.2d 158, 162-63 (1969).

   [*341] II

   Maryland Code (1957, 1972 Repl. Vol., 1978 Cum. Supp.), Art. 56, § 161, "Licenses -- [**1143] [***11] Fee Charging Employment Agencies" provides in pertinent part:

   "No person, firm or corporation shall open, operate, or maintain an employment agency in this State, nor shall any person on or after January 1, 1974, act in the capacity of an employment counselor without first obtaining a license for that purpose from the Commissioner of the Division of Labor and Industry." (Emphasis added.)
 
Article 56, § 162 defines an employment agency, in pertinent part, as follows:

   "'Employment agency' means any individual, partnership, association, corporation, contractor or subcontractor who, for a fee, procures or offers or attempts to procure employees for persons seeking the service of employees, or employment for persons, seeking employment.  . . ."
 
This Court assumes, if the Legislature does not indicate otherwise, that contracts made by unlicensed persons subject to regulatory statutes designed to protect the public are illegal as against public policy and will not be enforced.  Harry Berenter, Inc. v. Berman, 258 Md. 290, 298-99, 265 A.2d 759, 764 (1970); Goldsmith & Dell v. Manufacturers' Liability Ins. Co., 132 Md. 283, 286, 103 A. 627, 628 (1918). Thus, [***12] the remaining question before us is whether a foreign employment agency which has procured an employee for a Maryland employer is subject to the requirements of the regulatory act here involved.

   The cardinal rule of statutory construction is to ascertain the intent of the Legislature.  In determining this intent, a court must read the language of the statute in context and in relation to all of its provisions.  North Charles Gen. Hosp., Inc. v. Employment Security Admin., 286 Md. 115, 118, 405 A.2d 751, 753 (1979). Here the words "open, operate or maintain an employment agency in this State," appearing in [*342] Art. 56, § 161, when coupled with the definition of the term "employment agency," appearing in Art. 56, § 162, indicate that only employment agencies which engage in specified activities within the State of Maryland are subject to its requirements.  (Emphasis added.) n2

n2 This construction is supported by an administrative interpretation.  See COMAR 09.12.11.03, effective 4 April 1973.

[***13]

   The facts here establish that although unlicensed, S.A.S. did not engage in any of the specified activities within the State of Maryland.  It is not therefore subject to the licensing requirement of Art. 56, § 161.  Accordingly, it is not precluded from recovering damages for an alleged breach of contract. Courts in other jurisdictions which have considered this question under similar statutes have reached the same result.  Financial Corp. v. Executive Search, Inc., 16 Ariz.App. at 117, 491 P.2d at 506; Saks Theatrical Agency v. Mentine, 24 N.J.Misc. 332, 334, 48 A.2d 644, 645 (1946); Schroeder v. Ajax Corp., 71 Wis.2d 828, 830-31, 239 N.W.2d 342, 343 (1976).

   The trial court erred in granting the "Motion Raising Preliminary Objections." We shall reverse and remand.

   Order reversed.

   Case remanded to the Circuit Court for Anne Arundel County for further proceedings in accordance with this opinion.

   Costs to be paid by appellee. 

MATILDA F. GROVE v. VERNON G. FRAME, Personal Representativeof the Estate of Herbert R. Grove et al. 
No. 117, September Term, 1978
 
Court of Appeals of Maryland
 
285 Md. 691; 402 A.2d 892; 1979 Md. LEXIS 266

 August  21, 1979, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Hopper, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County affirmed; appellant to pay the costs.

CORE TERMS:  alimony, conveyance, widow, moot, marital rights, surviving spouse, unconditional, fraudulent, grantee, niece, right to share, arrearages, spouse, marriage, defeat, decree, donee, fraudulent conveyances, personal property, real property, personal representative, remainder interest, permanent alimony, deceased husband, life estate, perpetrated, relinquishes, possessed, dower, housekeeper

COUNSEL: Thomas N. Clifford for appellant.

   K. King Burnett, with whom were Webb, Burnett & Duvall on the brief, for appellees Irvin and Beatrice Catlin; Archie C. Hall and Dietz, Ebersberger, Duvall & Hall, Chartered, on the brief for appellee Vernon G. Frame, Personal Representative.

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

OPINIONBY: COLE

OPINION: [*692] [**893] In this case we are asked to decide whether a husband's absolute and unconditional transfer of his residence to a third party for nominal consideration[***3] and with [**894] the avowed purpose of forcing his wife to leave the property, can be set aside by his wife after his death as either a fraud on her right to alimony and support or on her right to share in his estate.

   The appellant, Matilda F. Grove, married her now deceased husband, Herbert R. Grove, on November 22, 1970.  The appellant was then 58; Herbert was 76.  It was the appellant's second marriage and Herbert's third.  Herbert's first wife had died and he had been divorced from his second wife for some seven years.  No formal oral or written agreements of any sort were made between the appellant and Herbert, either anteor post-nuptial.

   At the time of his marriage to the appellant, Herbert owned a home at 8557 Bay Road, Riviera Beach, Anne Arundel County, which is now valued at approximately $100,000.00.  The house had been built forty or fifty years ago and apparently was Herbert's home during both of his prior marriages. Herbert had no children.  His closest relative was a niece, Dorothy Mayes.  His closest friends were Mr. and Mrs. Irvin Catlin of Wicomico County.

   Herbert was retired and lived off his income from securities, which amounted to about $30,000 annually. [***4] Upon their marriage and at Herbert's request the appellant stopped working, sold her home in Baltimore City, moved into the Bay Road residence, and assumed the role of housekeeper. However, within six months marital difficulties developed.  Herbert became abusive.  He denied her sufficient funds for the household and for her special diabetic diet and generally [*693] denied appellant the social amenities consonant with a marital relationship.

   When in the early part of 1972 Herbert stopped giving her any money at all, the appellant lived off her own small savings for a while but then was forced to return to work despite her age and poor health.  Herbert had a stroke in the fall of 1973.  He persuaded the appellant to quit her job to take care of him and promised to give her forty dollars a week.  Yet he stopped paying her any money again after a month, and the appellant again resumed work.  In December of 1973 Herbert left the appellant and stayed with his niece for a month.  When he returned home in January 1974 Herbert again refused to give the appellant any money and brought in a housekeeper and a companion for himself.

   On April 4, 1974, the appellant filed a bill of complaint[***5] for permanent alimony in the Circuit Court for Anne Arundel County alleging cruelty. The case was scheduled for a hearing on the merits on October 3, 1974.  On September 5, 1974 Herbert transferred his life estate in the Bay Road property to the Catlins for $1.00 "and other good and valuable considerations;" he had already given his remainder interest in the property to the Catlins in 1972. Then, on September 17, 1974 Herbert entered into a written agreement with his niece and her husband whereby they agreed to care for him for the rest of his life in exchange for some $22,000 in cash and $123,000 worth of securities and their agreement to pay a $58,000 debt of Herbert's out of the proceeds from the sale of the securities.  Sometime that same month Herbert moved out of the Bay Road house and went to live at his niece's home.

   Prior to September, 1974 Herbert discussed these transactions with Vernon G. Frame, appellee, who was Herbert's attorney and is now personal representative of his estate.  Irvin Catlin was also present at these meetings.  Herbert announced that his purpose for making the conveyances was to force the appellant to leave the Bay Road property.  Herbert openly[***6] anticipated that the Catlins, as the new owners of the property, would give the appellant notice to leave or find another means to effect the same end.

   [*694] The alimony hearing was finally concluded on December 3, 1974, when the court issued a decree sustaining the appellant's allegations of cruelty and ordering Herbert to pay the appellant one hundred and fifty dollars every fifteen days as permanent alimony. Irvin Catlin, the grantee of the Bay Road property, was present at the alimony hearing, and thereafter notified the appellant that if she wanted to stay in the house he would charge her $300 a month rent.  As appellant could not afford to pay virtually all the alimony she received toward housing, she moved to an apartment in January, 1975.

   Herbert initially complied with the circuit court decree, but as of March 15, 1975 stopped making alimony payments.  Two show cause orders were issued by the court during 1976 in response to the appellant's petitions for contempt as to arrearages of alimony. Finally, on January 5, 1977 Herbert paid in full all arrearages and thereafter [**895] made timely payments until his death on March 16, 1977.  As to the date of his death, [***7] Herbert's total remaining gross assets were valued at approximately $40,000.

   The instant case commenced on April 21, 1977, when the appellant filed a bill of complaint in the Circuit Court for Anne Arundel County against appellee Frame as personal representative of Herbert's estate and against appellees Irvin and Beatrice Catlin to set aside the conveyance of the Bay Road property to the Catlins as fraudulent because it was designed to defeat the appellant's rights to alimony and to share in the estate of her husband.  On June 6, 1978 the circuit court granted the appellees' motion to dismiss.  The court first ruled that the alimony issue was moot because the parties had stipulated that the alimony, though late, was in fact paid in full up to the time of Herbert's death.  The court then held that since the gift of the Bay Road property by Herbert to the Catlins was complete, absolute, and unconditional, it was not fraudulent with respect to the appellant's marital rights as a surviving spouse. The court also stated that it was not required to look to any factors besides completeness of the transfer in reaching its decision.

   On June 8, 1978 the appellant filed an order for appeal[***8] to [*695]the Court of Special Appeals.  We granted certiorari prior to any hearing before that court to consider (1) whether Herbert's conveyance of the Bay Road property constituted a fraud on the appellant's right to alimony and support and (2) whether the same transfer amounted to a fraud on the appellant's right to share as a surviving spouse in her husband's estate.

   The first question before us, whether any fraud was perpetrated on the appellant's right to alimony and support, is moot. While it is unquestionably established in Maryland that an alimony decree in favor of a wife entitles her to be protected from fraudulent conveyances by her husband of his property, Oles Envelope Corp. v. Oles, 193 Md. 79, 65 A. 2d 899 (1949), and that this protection extends to fraudulent conveyances made just prior to an award of alimony, Levin v. Levin, 166 Md. 451, 171 A. 77 (1934), in the strict sense alimony means nothing more or less than "a periodical allowance during the joint lives of the spouses for the wife's support and maintenance . . . ." Winkel v. Winkel, 178 Md. 489, 498, 15 A. 2d 914 (1940). Since the death of either spouse terminates the obligation to pay, [***9] Herbert's legal duty to support the appellant in this fashion lasted only from the December, 1974 decree until the date of his death.

   Here the parties have stipulated that although periodic arrearages existed during the separation, alimony payments were in fact current at the time of Herbert's death.  This Court has stated that "[w]here, by act of the parties . . ., the controversy has come to an end, the case becomes moot and should be treated accordingly." Davis v. State, 183 Md. 385, 390, 37 A. 2d 880 (1944). We agree with the circuit court that the alimony question is moot.

   The appellant next asks us to hold that the Bay Road property is still a part of Herbert's estate on the theory that the conveyance to Catlin was contrived to defeat her right to share as a surviving spouse. Her argument readily recognizes the settled law that a widow is entitled to no part of her husband's estate except that of which he died seized or possessed. See Fitzpatrick v. Mer.-Safe, Etc., Co., 220 Md. 534, 554, 155 A. 2d 702 (1959); Bullen v. Safe Dep. & Tr. Co., [*696] 177 Md. 271, 278, 9 A. 2d 581 (1939); Pacholder v. Rosenheim, 129 Md. 455, 458, 99 A. 672 (1916); Matthews [***10]  v. Targarona, 104 Md. 442, 453-54, 65 A. 60 (1906).

   The record makes clear to us that Herbert did indeed convey with the specific purpose of reducing the size of his estate at his death.  However, our prior decisions dealing with the right of a husband to transfer the title to his personal property have recognized that he has this right, provided he relinquishes all dominion and control over the property during his life time. In Rabbitt v. Gaither, 67 Md. 94, 104-05, 8 A. 744 (1887), Judge Miller stated:
 
[A] husband may alienate his personal property and his equitable interest in land, either by sale or gift, without the concurrence or assent of his wife, and if the transfer be absolute and unconditional, and without any reservation of interest in, or control over, the property to himself, and if the possession be parted with or delivered in pursuance of the conveyance, it is valid even though his intent and purpose in making it, may have [**896] been to deprive his wife of her dower of thirds therein, provided there be no fraudulent participation on the part of the grantee or donee in such intent or purpose.  In fact, this power of the husband over such property, [***11] has been so long recognized by the courts, and so often exercised, as to have become not only a well-established principle of law, but a settled rule of property upon which a large number of titles depend.  But on the other hand, if the transfer be colorable merely, that is to say, if it be a mere device or contrivance by which the husband does not part with the absolute dominion over the property during his life, but seeks thereby to defeat the claims of his widow at his death, the law pronounces it a fraud upon her rights, and this fraud may be proved and established by his retention of possession, during his life, by a reservation of an interest to himself on the face of the conveyance, or by an outside agreement or arrangement between him and his grantee or [*697] donee, to the effect that he shall receive the benefit of, or have control over, the property, during his life, or by any other fraudulent participation on the part of the grantee or donee to aid him in his purpose of defeating the rights which the law gives to his widow upon his death.
 
See also Mushaw v. Mushaw, 183 Md. 511, 39 A. 2d 465 (1944); Bestry v. Dorn, 180 Md. 42, 22 A. 2d 552 (1941); [***12] Bullen v. Safe Dep. & Tr. Co., 177 Md. 271, 9 A. 2d 581 (1939); Whitehill v. Thiess, 161 Md. 657, 158 A. 347 (1932); Sturgis v. Citizens Nat. Bank, 152 Md. 654, 137 A. 378 (1927); Jaworski v. Wisniewski, 149 Md. 109, 131 A. 40 (1925); Poole v. Poole, 129 Md. 387, 99 A. 551 (1916); Brown v. Fidelity Trust Co., 126 Md. 175, 94 A. 523 (1915); Collins v. Collins, 98 Md. 473, 57 A. 597 (1904); Duttera v. Babylon, 83 Md. 536, 35 A. 64 (1896); Sanborn v. Lang, 41 Md. 107 (1874); Feigley v. Feigley, 7 Md. 537 (1855); Hays v. Henry, 1 Md. Ch. 337 (1848) Sykes, Inter Vivos Transfers in Violation of the Rights of Surviving Spouses, 10 Md.L.Rev. 1 (1949).

   Prior to 1970, the test to determine whether there had been a fraud on a widow's marital rights applied to personalty only because the transfer of legal title to real property, without the wife's consent, did not destroy her right of dower upon her husband's death.

   However, when the General Assembly abolished the estates of dower and curtesy by Chapter 3, § 1 of the Laws of Maryland 1969, now Code (1974), § 3-202 of the Estates and Trusts Article, it effectively destroyed any valid distinction [***13]between the rights of a surviving spouse to share in the personalty or real property of the deceased spouse. Therefore the only manner in which a widow may now seek to set aside an inter vivos transfer of property made by her husband is by proof that he defrauded her by not absolutely and unconditionally relinquishing control over the property during his lifetime.  In the absence of fraud, the only interest she can assert in lieu of taking under her husband's will is to a share of the property owned by her deceased husband at the time of his death.  See Code (1974, 1978 Supp.), §§ 3-102, 3-203 of the Estates and Trusts Article.

   [*698] In the instant case, it is clear that Herbert retained no control over the Bay Road property.  He had transferred his remainder interest to Catlin in 1972 and followed that with a transfer of his life estate to Catlin in 1974, three years before his death.  Thus, his conveyance to Catlin of all his interest in the Bay Road property was complete, absolute and unconditional.

   We conclude, therefore, that no fraud was committed upon the appellant's marital rights to share in her husband's estate since the subject property was not a part of his[***14] estate at his death.  We affirm the judgment of the circuit court.

   Judgment of the Circuit Court for Anne Arundel County affirmed; appellant to pay the costs. 

MICHELLE I. THOMPSON v. MICHAEL THOMPSON 
No. 85, September Term, 1978
 
Court of Appeals of Maryland
 
285 Md. 488; 404 A.2d 269; 1979 Md. LEXIS 243

 July  20, 1979, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Childs, J.

DISPOSITION: Judgment affirmed; petitioner to pay the costs.

CORE TERMS:  minor child, statute of limitations, paternity, blood, birth, putative father, blood tests, classification, illegitimate children, paternity action, illegitimacy, illegitimate child, bastardy, predecessor, scientific, guardian ad litem, stale, memorandum, personal rights, laid down, pregnancy, definite, memories, woman, paternity proceedings, Fourteenth Amendment, fraudulent claims, equal protection, right to support, docket entry

COUNSEL: [***2]

   Samuel Hansel Paavola for appellant.

   Martha Wyatt and George J. Chartrand, with whom were Legum, Cochran, Chartrand & Wyatt, P.A. on the brief, for appellee.

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

OPINIONBY: SMITH

OPINION: [*488] [**270] In this case a minor child asks that we strike down as unconstitutional that portion of Maryland Code (1957, 1973 [*489] Repl. Vol.) Art. 16, § 66 (e) which requires any action to establish an individual as the father of an illegitimate child to "be commenced during the pregnancy of the mother thereof or within two (2) years after the birth of such child . . .; except that if the putative father of such child . . . has acknowledged in writing the paternity of the child . . . or has made payment or otherwise provided for the support and maintenance of the child . . ., it is sufficient if the proceedings are commenced within two (2) years of the date of such acknowledgment or the last such payment or provision . . . ." We shall decline to do so, as did the Court of Special Appeals in Thompson v. Thompson, 40 Md. App. 256, 390 A. 2d 1139 (1978).[***3]

   The child in question was born May 10, 1969.  On December 1, 1971, her mother filed a paternity action against the alleged father in the Circuit Court for Anne Arundel County.  The matter lay dormant until August 10, 1977.  On that day the State's Attorney for Anne Arundel County requested that summons be issued for the mother, the alleged father, and another individual for a hearing to be held on August 31. n1 The [*490] alleged father filed an answer on August 29 claiming the action was barred by limitations.  The trial judge dismissed the action on October 13 pursuant to that contention. n2 [**271] The minor child claims that this two year statute of limitations denies "equal protection of the law to all those illegitimate children who do not file a paternity action within two years of birth." n3

n1 At the hearing on August 31 the State's Attorney advised the court of the name of the case after which the record in full is as follows:
 
Mr. Chartrand has recently filed an answer to the petition against this defendant in which he asserts the application of the statute of limitations and by the -- Article 66 [sic], and the State has no defense to this with regards to the merits of it.  The [defendant] was notified at a period beyond the limitations.  The State has been approached by the Legal Aid Bureau, particularly Mr. Sam Paavola, who indicates that they would like to intervene on behalf of the child and ask the Court to have a guardian appointed for the child and that they be allowed to represent the guardian ad litem for the purpose of raising the constitutionality of the limitations, as set forth in Article 66 [sic].  They have adequate law in support of the proposition that this may well be unconstitutional.  They would like to submit this by way of a memorandum to the Court at a later time.

   COURT: Alright, sir.  How much time do you want to submit a memorandum to the Court?

   MR. PAAVOLA: A three week period?

   COURT: Alright.

   MR. REINA [, Assistant State's Attorney]: Will you prepare that application to have the guardian ad litem appointed?

   MR. PAAVOLA: Uh-huh.

   COURT: Alright.  You submit the petition and I'll sign the order and we'll proceed after that.

   The next docket entry reflects the filing of a memorandum of law on October 10.  On the same day present counsel for the child filed a motion "for appointment of separate counsel" for the child.  The court passed an order on October 11 pursuant to that motion appointing that attorney as "counsel for the minor child, Michelle Thompson." The action was dismissed on October 13 as "barred by the statute of limitations." The next docket entry is an order for an appeal signed by the same attorney.  It does not specify for whom he is attorney, although the inference certainly may be drawn that he was acting as attorney for the child.

   The foregoing constitutes a complete summary of all that was filed in this proceeding.  At no time was there a request that the minor child be made a party plaintiff.  No order was ever passed making her a party plaintiff.  No appeal was filed on behalf of the plaintiff mother.  No order was ever passed appointing anyone as guardian ad litem for the child.

   Because it seems implicit in the trial judge's comments and the statements of counsel at the August 31 hearing that some action was to be taken, we shall treat the matter as though a motion on behalf of the infant to intervene was granted.

[***4] 

n2 Maryland Rule 18 b states:

   Before or within fifteen days after entry of an appealable final judgment in a contested action tried upon the merits without a jury, the court shall dictate to the court stenographer or reporter, or prepare and file in the action, a brief statement of the grounds for its decision and the basis of determining the damages, if any.
 
Counsel in this case requested the trial judge to state the reasons for his decision, referring to this rule.  No memorandum was ever filed, perhaps on the theory that this case was not "tried upon the merits . . . ." We observe, however, that it would have been of assistance to the appellate courts to have had the benefit of the reasoning of the trial judge.

n3 Undoubtedly what she means is that equal protection of the law is denied to those illegitimate children whose mother fails to file a paternity action within two years of birth, since the child may not institute such an action.

   The present statutory provisions governing paternity actions are found in Code (1957, 1973 Repl. Vol., 1978 Cum. Supp.) Art. 16, §§ 66A-66P, [***5] originally enacted by Chapter 722 of the Acts of 1963.  Under these statutes an action such as the case at bar is civil in nature.  Prior to that revision of our laws such proceedings were criminal in nature, although the effect of the prior law was to extract support from the father of an illegitimate child. See, e.g., Code (1957) Art. 12, "Bastardy and Fornication" (repealed by the 1963 Act); Sheay [*491] v. State, 74 Md. 52, 21 A. 607 (1891); Bake v. State, 21 Md. 422 (1864); Owens v. State, 10 Md. 164 (1856); and Oldham v. State, 5 Gill. 90 (1847). Art. 12, § 18 provided for limitations of two years from birth or "from the last payment by the accused for the maintenance and support of the said bastard child," a provision enacted by Chapter 163 of the Acts of 1912. Earlier in our legal history the one year limitation provision applicable to misdemeanors found in Code (1912) Art. 57, § 11 and its predecessors was applicable to a prosecution for bastardy. Bake v. State, supra.

   The present statutory scheme came about as a result of the report of the Commission to Study Problems of Illegitimacy among the Recipients of Public Welfare Monies in the Program[***6] for Aid to Dependent Children (1961). The General Assembly declared its purposes in § 66A:

   The General Assembly declares its conviction that the State has a duty to ameliorate the deprived social and economic status of children born out of wedlock and that the policies and procedures as contained in this subtitle and in § 66 of this article relative to establishing the paternity of such children, determining who shall have their custody or guardianship and who shall be charged with their maintenance and support are socially necessary and desirable, having as their threefold purpose (1) the promotion of the general welfare and best interests of such children by securing to them, as near as practical, the same right to support, care and education as legitimate children; (2) the imposition upon both parents of such children the basic obligations and responsibilities of parenthood and (3) the simplification of procedures.
 
The same act made the necessary changes to Art. 16, § 66 so that the limitation period found in the old bastardy law was refined and placed in it.  Although the mother is represented by the State's Attorney, the proceeding is civil in nature.  See Dorsey [***7]  v. English, 283 Md. 522, 530, 390 A. 2d 1133 (1978), where we dubbed as "frivolous and unworthy of further [*492] comment" an allegation that a mother received an unfair advantage by being represented by the State's Attorney.

   The minor child suggested repeatedly in argument to us that illegitimate children are entitled to a favored status.  We find no support for such a contention in any of the decisions of the Supreme Court.  For instance, in Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L.Ed.2d 31 (1977), Mr. Justice Powell said for the Court:

   Appellants urge us to hold that classifications based on illegitimacy are "suspect," so that any justifications must survive "strict scrutiny." We considered and rejected a similar argument last [**272] Term in Mathews v. Lucas, 427 U.S. 495 (1976). As we recognized in Lucas, illegitimacy is analogous in many respects to the personal characteristics that have been held to be suspect when used as the basis of statutory differentiations.  Id., at 505. We nevertheless concluded that the analogy was not sufficient to require "our most exacting scrutiny." Id., at 506. Despite the conclusion that classifications [***8]based on illegitimacy fall in a "realm of less than strictest scrutiny," Lucas also establishes that the scrutiny "is not a toothless one," id., at 510, a proposition clearly demonstrated by our previous decisions in this area.  [Id. at 767.]
 
This should dispose of any argument that such persons are entitled to a special status.

   In Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S. Ct. 1400, 31 L.Ed.2d 768 (1972), Mr. Justice Powell said for the Court:
 
The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose.  Morey v. Doud, 354 U.S. 457 (1957); Williamson v. Lee Optical Co., 348 U.S. 483 (1955); Gulf, Colorado [*493] & Santa Fe R. Co. v. Ellis, 165 U.S. 150 (1897); Yick Wo v. Hopkins, 118 U.S. 356 (1886). Though the latitude given state economic and social regulation is necessarily broad, when state statutory classifications approach sensitive and fundamental personal rights, this Court exercises a stricter scrutiny, Brown v. [***9]  Board of Education, 347 U.S. 483 (1954); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). The essential inquiry in all the foregoing cases is, however, inevitably a dual one: What legitimate state interest does the classification promote?  What fundamental personal rights might the classification endanger? [Id. at 172-73.]
 
This test was repeated in Mathews v. Lucas, 427 U.S. 495, 504, 96 S. Ct. 2755, 49 L.Ed.2d 651 (1976). We believe it to be the test by which the validity of this particular statute should be determined.  As recently as last December Mr. Justice Powell said in the plurality opinion in Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518, 527, 58 L.Ed.2d 503 (1978), "Our inquiry under the Equal Protection Clause does not focus on the abstract 'fairness' of a state law, but on whether the statute's relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment."

   The purpose of a statute of limitations has been explained in a host of Maryland cases.  See, e.g., Harig v. Johns-Manville Products, 284 Md. 70, 75-76, 394 A. 2d 299 (1978); Walko Corp. v. Burger [***10]  Chef, 281 Md. 207, 210-11, 378 A. 2d 1100 (1977); Yingling v. Smith, 259 Md. 260, 264, 269 A. 2d 612 (1970); and Bertonazzi v. Hillman, 241 Md. 361, 367, 216 A. 2d 723 (1966), although not in precisely the same words each time.  Such statutes are designed primarily to assure fairness to defendants on the theory that claims asserted after evidence is gone, memories have faded, and witnesses disappeared are so stale as to be unjust, being somewhat similar to some of the factors considered in determining whether an accused has been denied his right of speedy trial as guaranteed by the Maryland Declaration of Rights or the Sixth Amendment to the Constitution of the United States.  In Harig Chief Judge [*494] Murphy commented for the Court relative to limitations, "Ordinarily, a potential tort plaintiff is immediately aware that he has been wronged." Id. at 76.  Although a woman may not know immediately that she has conceived, certainly it follows that by the very nature of things it is not long after conception before she is aware of that fact.  Judge Delaplaine said for our predecessors in McMahan v. Dorchester Fert. Co., 184 Md. 155, 40 A. 2d 313 (1944):[***11] 
 
[**273] Statutes of limitations are remedial legislation and rest upon sound public policy, for they are enacted to afford protection against stale claims after a lapse of time which ought to be sufficient for a person of ordinary diligence, and after which the defendant might be placed at a disadvantage by reason of long delay.  By requiring persons to seek redress by actions at law within a reasonable time, the Legislature imposes a salutary vigilance and puts an end to litigation.  [Id. at 159-60.]

   As Mr. Justice Powell so cogently said for the Court in Lalli:
 
Establishing maternity is seldom difficult.  As one New York Surrogate's Court has observed, "the birth of the child is a recorded or registered event usually taking place in the presence of others.  In most cases the child remains with the mother and for a time is necessarily reared by her.  That the child is the child of a particular woman is rarely difficult to prove." In re Oritz, 60 Misc.2d 756, 761, 303 N.Y.S.2d 806, 812 (Sur. Ct. 1969). Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit.  "The putative father often goes his[***12] way unconscious of the birth of a child.  Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother.  Indeed the mother may not know who is responsible for her pregnancy." Ibid. (emphasis in original); accord, In re Flemm, 85 Misc.2d 855, 861, 381 N.Y.S.2d 573, 576-577 (Sur. Ct. 1975); In re [*495] Hendrix, 68 Misc.2d [439], 443, 326 N.Y.S.2d [646], 650 [(Sur. Ct. 1971)]; cf. Trimble [v. Gordon], 430 U.S. [762], 770, 772, 97 S. Ct. [1459], 1465, 1466 [, 52 L. Ed. 2d 31 (1977)]. [Id. 439 U.S. 268-69, 99 S. Ct. 525.]

   Memories do fade with the passage of time.  Circumstances change, too.  After the lapse of a number of years from contact with the mother of an illegitimate child an accused male might have substantial difficulty in establishing that he was not the only individual who could have sired the child in question.  This might be because changed family circumstances could cause individuals who previously would have so testified to be unwilling to state that they had sexual intercourse with the child's mother at a time when they could have sired the child in question.  In today's society[***13] where movement from one area to another is much more frequent than in earlier generations the whereabouts of such individuals may no longer be readily ascertained.  We find no fundamental right of the child affected by this statute.

   Judge Morton said for the Court of Special Appeals in this case, Thompson v. Thompson, 40 Md. App. 256:

   Finally, we find no merit in appellant's contention that the two year statute of limitations violates her right to due process under the fourteenth amendment because it allows her right to paternal support to terminate before she has any real opportunity to assert it.  Appellant posits that permitting a child's mother to institute paternity proceedings in behalf of her offspring does not thereby satisfy the requirements of due process because the mother's short term interests, viz., continuing fondness for the father or her reluctance publicly to reveal her indiscretion, may conflict with the child's long term interests of support and the establishment of paternity. There is no denying that this possibility exists.  In our opinion, however, the Maryland General Assembly could reasonably conclude that the decision whether to institute a paternity [***14]action is in the child's best interest, in [*496] contrast to the mother's, vests with the mother.  Certainly, we feel that it is reasonable for the legislature to conclude that this policy decision, when coupled with the state's legitimate interest in preventing stale or fraudulent claims, on balance, outweighs the potential harm to illegitimate children who may have their right to paternal support forfeited by the mother's inaction.  We also observe that the failure to bring a paternity suit within two years forecloses only the right to support from the alleged natural father.  The child, however, will not be left without a means of support.  The natural [**274] mother is still bound, under fear of criminal prosecution, to support her child, Maryland Code [(1957, 1976 Repl. Vol., 1978 Cum. Supp.)], art. 27, § 88 (b) (1), and, if necessary, the child will be eligible to receive support from public funds. [Id. 40 Md. App. 265-66.]
 
We adopt those views as our own.

   In arguing that there are less restrictive means than this statute of limitations for protecting accused individuals against unfounded claims, the minor child refers to a number of scholarly articles[***15] concerning testing.  She then asserts, "Through an analysis of the various genetic characteristics that are within each blood cell of an individual, scientists can determine with scientific certainty in 99 percent of the cases that a falsely accused man is not the father." Art. 16, § 66G provides for blood tests with the results to be received in evidence "only in cases where definite exclusion is established." This statute is virtually identical to its predecessor, Code (1957) Art. 12, § 20, which Chief Judge Marbury discussed for the Court in Shanks v. State, 185 Md. 437, 45 A. 2d 85 (1945):

   The paternity tests are based upon further scientific discoveries, that the child of two people having the same blood group cannot be in one of the other blood groups, but if the two parents have different blood grouping, then a different situation [*497] arises.  The statutes, including the Maryland statute above referred to, generally provide, and the cases generally hold, that blood tests in paternity cases are only evidence in case definite exclusion is established.  That means that if the child has blood O, and both the mother and the putative father have blood O, that is[***16] no evidence that the putative father is really the father, because 45 per cent. of the population have that same blood. But if the child has blood A and both the mother and the putative father have blood O, then it is evidence to exclude the father, because a combination of two persons both with blood O cannot produce a child with group A.  [Id. at 441.]
 
See Bowen, Blood Tests and Parentage, 18 Md. L. Rev. 111 (1958). Mr. Bowen states relative to the old statute that it "does not indicate what weight should be given to the results of blood tests when they are admitted in evidence nor has the Court of Appeals ruled upon the question . . . ." Id. at 117-18. The new statute likewise is silent on this point.  We still have not ruled upon the question.  We understand the blood tests suggested by the minor child here are far more complex and sophisticated than the methods in vogue in Maryland which were discussed in Shanks and by Mr. Bowen.  No attempt was made to offer evidence as to the reliability of the tests which the minor mentions.  In Reed v. State, 283 Md. 374, 389, 391 A. 2d 364 (1978), this Court adopted the rule relative to the admissibility[***17] of scientific evidence laid down in Frye v. United States, 293 F. 1013, 1014 (D. C. Cir. 1923). Thus, for us to take cognizance of such a scientific blood testing technique it would have been incumbent upon the minor child to adduce evidence showing that this technique is sufficiently established to have gained general acceptance in its particular field. n4

n4 There having been no evidence adduced on the point, we express no opinion as to whether such techniques could meet the test laid down in Reed and Frye. We point out, however, that H. Krause, Illegitimacy: Law and Social Policy 133 (1971), found that as many as one-third of test results were wrong in a sample series of cases, while Lee, Current Status of Paternity Testing, 9 Family L.Q. 615, 633 (1975), says that current techniques in blood-testing, if properly performed, are accurate between 70 percent and 90 percent of the time.

   [*498] There is a strong presumption of constitutionality of a statute and it is the duty of the party[***18] assailing a legislative classification to prove that it does not rest upon any reasonable basis, but is essentially arbitrary.  Edgewood Nursing Home v. Maxwell, 282 Md. 422, 427, 384 A. 2d 748 (1978); Weaver v. Prince George's County, 281 Md. 349, 355, 379 A. 2d 399 (1977); Davidson v. Miller, 276 Md. 54, 79, 344 A. 2d 422 (1975); and Matter of Trader, 272 Md. 364, 400, 325 A. 2d 398 (1974). We find that [**275] the minor child has not sustained this burden of proof and that the statute in question meets the test enunciated by the Supreme Court in Weber.

   Judgment affirmed; petitioner to pay the costs. 

DALLAS A. HONAKER et ux. v. W. C. & A. N. MILLER DEVELOPMENTCOMPANY; GARY J. COFFEY et al. v. THE DERBY STEEL COMPANY 
Nos. 55, 60, September Term, 1978
 
Court of Appeals of Maryland
 
285 Md. 216; 401 A.2d 1013; 1979 Md. LEXIS 222

 May  29, 1979, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for Montgomery County, Mitchell, J., in No. 55 and Circuit Court for  Anne Arundel  County, Wray, J., in No. 60.

DISPOSITION: As to Appeal No. 55: Judgment affirmed; appellants to pay the costs.  As to Appeal No. 60: Judgment reversed and case remanded to the Court of Special Appeals for passage of an order reversing the judgment of the Circuit Court for Anne Arundel County and remanding the case to it for further proceedings consistent with this opinion; appellee to pay the costs.

CORE TERMS:  principal contractor, subcontractor, erection, workman, steel, occupation, Workmen's Compensation Act, workmen, contracted, summary judgment, subcontract, contractor, common law, general contractor, roof, installation, build, floor, tile, liable to pay, deposition, statutory construction, exclusive remedy, matter of law, Maryland Rule, moving party, co-operating, promised, roofer, beams

COUNSEL: In No. [***4] 55, Ferdinand J. Mack for appellants.

   In No. 60, John T. Enoch, with whom was Jeffrey S. Chernow on the brief for Gary J. and Marsha Coffey and Hugh E. Donovan on the brief for St. Paul Fire & Marine Ins. Co., appellants.

   In No. 55, Wade J. Gallagher, with whom were William H. Clarke and Galiher, Clarke, Martell & Donnelly on the brief, for appellee.

   In No. 60, David M. Buffington, with whom were Donald L. DeVries, Jr., and Semmes, Bowen & Semmes on the brief, for appellee.

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

OPINIONBY: SMITH
 
OPINION: [*218] [**1014] In each of these appeals an injured employee has been paid workmen's compensation for injuries sustained while working in the construction of a building.  In each instance, after collecting such compensation through the insurance carrier of his immediate employer, he has brought suit against the corporation with which his employer had contracted, alleging that negligence attributable to such corporation was responsible for his injury.  Each such corporation is an appellee here.  Each has been held to be a statutory employer[***5] under Maryland Code (1957) Art. 101 (the Workmen's Compensation Act), § 62 and thus immune from [*219] any liability other than that for workmen's compensation.  We shall affirm as to No. 55, Honaker, but in No. 60, Coffey, we shall reverse and remand for trial.

   The facts in these cases are similar but not identical.  We consolidated the cases for argument because the same statute is involved and the facts in the two cases resemble one another so closely.

   I -- No. 55 -- Honaker

   Dallas A. Honaker (Honaker) and his wife sued W. C. and A. N. Miller Development Company (Miller).  Miller builds and sells houses in Montgomery County.  It normally does not build homes to order.  In this instance, however, it contracted to build one for an individual who, among other things, desired a slate roof. Miller did not have the men and equipment to install such a roof. Therefore, it employed another corporation to do this particular work.  Honaker, an employee of that corporation, was injured while installing the roof. He was paid workmen's compensation by the roofing contractor's insurer.  He and his wife then docketed this action against Miller, alleging that the latter provided [**1015] [***6] scaffolding for Honaker's use in the installation of the roof and that this scaffolding was so "negligently constructed and maintained" as to break, causing the injury to Honaker.  The first count was to Honaker's use and to the use of the insurer.  The Honakers recovered a judgment against Miller in the Circuit Court for Montgomery County.  The Court of Special Appeals reversed in W. C. & A. N. Miller Dev. Co. v. Honaker, 40 Md. App. 185, 388 A. 2d 562 (1978), holding that Miller met the test relative to Art. 101, § 62 laid down by Judge Orth for this Court in Honaker v. W. C. & A. N. Miller Dev. Co., 278 Md. 453, 365 A. 2d 287 (1976) (Honaker I).  We held in the earlier case that the trial court had erred in entering summary judgment in favor of Miller. Accordingly, we remanded the case for trial.

   Honaker regards as significant here the fact that Miller was the owner of the land on which the building was being constructed.  He likewise contends that the installation of the [*220] roof here was not a part of the "trade, business or occupation" of Miller as that term is used in Art. 101, § 62.

   II -- No. 60 -- Coffey

   A general contractor was engaged to erect a[***7] building at Anne Arundel Community College.  The Derby Steel Company, Inc., made an agreement with the general contractor to furnish and erect the structural steel for the building.  Derby in turn contracted with The Prosser Company for the actual erection of the steel. Gary J. Coffey, an employee of Prosser, was injured while working on the structure.  Coffey and his wife sued Derby.  They alleged negligence on the part of Derby in its design and manufacture of certain of the steel and also claimed a breach of warranty by Derby in its sale of the manufactured goods.

   Derby at sometime in the past has erected steel. Its president testified in a deposition that at the time relevant here it had 25 to 30 employees, none of whom were engaged in erection of steel. He said, "Companies in our business generally take the erection, too.  In other words, we have always been in the erection business but we don't actually do it, if you see what I mean.  We handle it as a sub." Filed as an exhibit in the trial court were copies of pages in the classified section of the Baltimore City telephone directory for the years 1971 to 1976, inclusive, reflecting that Derby advertised itself as a steel[***8] fabricator and not as an erector.  Derby's president testified that the men who did the actual erection were employed by Prosser, the erection company.  He further explained relative to the steel erection:

   Q. And these men, they are not employed by you?  A. They are employed by the erection company.

   Q. They are employed by Prosser?  A. That's right.  They are a subcontractor of mine.  My men are capable of doing it, but if I took them all out of the shop and out into the field and we spent several weeks out there putting it up, I wouldn't be able to produce anything more, would I?  That is why I got [*221]out of that business, doing the actual work years ago, you see what I mean?  When I was a real small company, why we lots of times did our own erection, and I don't know but it has been an industry trade -- what is the word I am thinking of -- it is usual practice to buy steel from the fabricator erected.

   The Circuit Court for Anne Arundel County granted summary judgment in favor of Derby.  The trial judge made the finding required by Maryland Rule 605 a, thus permitting an appeal prior to the end of the whole case.  On appeal the Court of Special Appeals affirmed in[***9] an unreported opinion (Coffey et al. v. The Derby Steel Company, Inc., et al., No. 1402, September Term, 1977, filed July 20, 1978), relying upon its opinion in W. C. & A. N. Miller v. Honaker Dev. Co., supra.

   III The law

   The matter here before the Court is whether either Miller or Derby is "a principal contractor" who has "undertake[n] to execute any work which is a part of his trade, business or occupation," a part of which he has contracted with some "other [**1016] person as subcontractor" to perform.  If Miller or Derby is found to come within these terms, then under §§ 62 and 15 of the Workmen's Compensation Act the exclusive remedy of the employee in each instance would be under that act. n1 Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 13, 155 A. [*222] 2d 691 (1959), and cases there cited.  If either Miller or Derby is held not to be a statutory employer of its respective claimant, such claimant may maintain the tort action here for alleged negligence in accordance with § 58 of the Workmen's Compensation Act. Roland, supra, 221 Md. at 13, and cases there cited.

 n1 Code (1957) Art. 101, § 62 provides in pertinent part:

   When any person as a principal contractor, undertakes to execute any work which is a part of his trade, business or occupation which he has contracted to perform and contracts with any other person as subcontractor, for the execution by or under the subcontractor, of the whole or any part of the work undertaken by the principal contractor, the principal contractor shall be liable to pay to any workman employed in the execution of the work any compensation under this article which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal contractor, then, in the application of this article, reference to the principal contractor shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.

   Where the principal contractor is liable to pay compensation under this section, he shall be entitled to indemnity from any employer, who would have been liable to pay compensation to the employee independently of this section, and shall have a cause of action therefor against such employer.

   Nothing in this section shall be construed as preventing a workman from recovering compensation under this article from the subcontractor instead of from the contractor.

[***10]

   At common law, a worker injured in the course of his employment could seek compensation for his injuries and other damages only through an action in tort. American Coal Co. v. Allegany Co., 128 Md. 564, 98 A. 143 (1916), was a case arising under a statute originally enacted by Chapter 153 of the Acts of 1910 for the relief and sustenance of employees injured in coal and clay mining in Allegany and Garrett Counties and the dependents of employees injured or killed in such mining.  Judge Burke in that instance was writing for our predecessors subsequent to the passage of our Workmen's Compensation Act concerning a case which arose prior to its enactment.  The Court there said:
 
The application of the principles of the common law to suits for personal injuries sustained in hazardous employments resulted in many cases in injustice to the parties concerned as well as to the State.  It filled the courts with litigation; it became the fruitful source of perjury; it engendered bitterness between employer and employee; it resulted in great economic waste, and it turned out an army of maimed and helpless people as dependents upon the charity of friends or the public.  The operation[***11] of these rules came to be regarded as "foolish, wasteful, inefficient, and barbarous," and the national Government and a number of the States have now replaced them by efficient and humane laws.  [Id. at 574.]
 
[*223] It was reactions such as this which led to the appointment by Governor Phillips Lee Goldsborough on May 11, 1913, of a commission "to prepare a bill on the question of Employers' Liability and Workmen's Compensation Laws to be submitted to the General Assembly at its session held in 1914," and the enactment of our Workmen's Compensation Act by Chapter 800 of the Acts of 1914. n2 See the preamble to that statute [**1017] quoted in Solvuca v. Ryan & Reilly Co., 131 Md. 265, 267, 101 A. 710 (1917). The statute as passed contained a major loophole in that, under its terms, an employer could, by entering into a subcontract for the performance of parts of an entire project, escape liability under the act.  Chapter 597 of the Acts of 1916 contained a number of amendments to the existing sections of the Workmen's Compensation Act and added a new section which became § 62.  The need for these changes no doubt had been indicated by experience under that[***12] act.  The purpose of § 62, which has remained unchanged since its enactment, was discussed at length in State v. Bennett Bldg. Co., 154 Md. 159, 140 A. 52 (1928):

   It is common practice in certain trades for one party to agree for a reward to complete a certain [*224] work or undertaking, and then to enter into subcontracts with various parties providing for the execution by them respectively of specified parts of the whole work or undertaking, so that the whole or part thereof would be done by such subcontractors and their assistants. In this manner the principal contractor would avoid in part the responsibility for accidents happening in the carrying out of the work or undertaking.  If this responsibility were so shifted upon parties too weak financially to meet it, and who had not secured compensation to their employees in one of the ways required by the statute, an injured workman, proceeding at common law or under the Workmen's Compensation Act, would obtain neither compensation nor damages. Furthermore, difficult questions arose with reference to whether the workman was the servant of the principal contractor rather than of his immediate employer, depending largely[***13] upon who had power to hire and discharge, to direct and control the workmen, and a variety of other circumstances.  In order to obviate these contingencies, and more certainly to assure the workman his contemplated compensation, the statute has imposed, under a certain state of circumstances, a liability to pay upon the principal contractor, although he might not have been held at common law the employer of the injured workman. [Id. at 161-62.]
 
The Court spelled out the impact of the statute:
 
The effect of this provision, when brought into operation through the designated state of circumstances, is to impose the absolute liability of an employer upon the principal contractor, when he was not in law the employer of the injured workman. The result then is that where the prescribed [*225] conditions exist, the principal contractor becomes by the act the statutory employer of any workman employed in the execution of the work.  [Id. at 162.]

n2 Neither the Maryland Workmen's Compensation Act nor the 1910 act concerning coal and clay miners was the beginning of workmen's compensation in Maryland, however, since in an address to the Maryland State Bar Association entitled "Employers' Liability and Workmen's Compensation Laws" J. Walter Lord of the Baltimore Bar stated:

   Maryland was the first state in this country to enact legislation partaking of the nature of workman's compensation.  The Act of 1902, Chapter 139, was designed to modify the common law defenses in cases both of injuries and death arising out of the prosecution of a few extra-hazardous industries, and to provide for a relief payment of $1,000 in cases of death, to the exclusion of the remedy under Lord Campbell's Act.  The act provided that unless the employer contributed to a relief fund, to be administered by the State Insurance Commissioner, he should be penalized in all cases of injury and death, by the removal of the defense of fellow-servant and by the substitution of the rule of comparative negligence for the defense of contributory negligence.  The contribution to the relief fund was so much per man employed, graded in accordance with the supposed hazard of the particular industry; and the employer was authorized to deduct one-half the contribution from the wages of each employee.  In the case of non-fatal injury the workman's remedy was by suit at common law. In the case of death the exclusive remedy was a claim for $1,000 against the relief fund.  With respect to death cases, however, the Insurance Commissioner had plenary power to determine all disputes; his decision was final, and not reviewable by the courts.  [17 Trans. Md. St. B. A. 175, 199-200 (1912).]

[***14]

   In Honaker I Judge Orth discussed for the Court a number of our prior cases including Bennett Building Co. The Court said:

   It is manifest on the face of § 62 of Art. 101, that in order to invoke its provisions there must be:
 
(1) a principal contractor n4
 
(2) who has contracted to perform work
 
(3) which is a part of his trade, business or occupation; and
 
[**1018] (4) who has contracted with any other party as a subcontractor for the execution by or under the subcontractor of the whole or any part of such work.  [Id. 278 Md. at 459-60.]
 
We quote from n. 4 of that opinion:

   4. "Principal contractor" is not synonymous with "general contractor." In Kegley v. Vulcan Rail & Constr. Co., 203 Md. 476, 101 A. 2d 822 (1954), we rejected an attempt to read the words "principal contractor" in the statute as referring to the general contractor. We said, at 480, 101 A. 2d at 823: "We find no such limitation in the language or purpose of [§ 62] and the last paragraph dealing with the interpleading of intermediate contractors when a claim is filed, is clearly predicated upon their liability for compensation." [Id. 278 Md. at[***15] 460.]
 
The record before us in that case did not include "a contract on the part of Miller to build a house." Id. at 463. This was the reason for the remand. However, the exhibits filed by Miller on the remand included a "custom building contract" between it and Mr. and Mrs. Dejanikus, for whom the house was being built.

   Statutes such as ours are discussed in 1B A.  Larson, [*226] Workmen's Compensation Law § 49.12 (1978).  He states that, despite variations in language,
 
with a surprising degree of harmony, the cases applying these assorted phrases agree upon the general rule of thumb that the statute covers all situations in which work is accomplished which this employer, or employers in a similar business, would ordinarily do through employees.  Of course, when the statute says expressly (as many do) that a contractor who subcontracts any part of his own contract becomes the statutory employer of the subcontractor's employees, the question whether the subdivided work is part of the principal contractor's work usually answers itself.  The very fact that it is a parcelled-out fraction of the main job is proof enough.  In such a case, as when a building[***16] contractor subcontracts the plumbing work, it would be no defense on the part of the building contractor that it is customary to get such work done through independent contractors. [Id. at 9-12 (footnote omitted).]
 
Larson then goes on to discuss in some detail cases involving variations of facts and statutory terminology.  Id. at 9-13 -- 33.  However, these cases do not involve situations where the principal contractor is a general contractor of a project such as a construction contract.  As the author makes clear in the last two sentences of the passage quoted above, these cases are in a different and analytically less difficult category.  Our statute here states that a contractual relationship must exist between the principal contractor and the immediate employer for there to be liability for an award for workmen's compensation.  This Court has so interpreted § 62.  Warren v. Dorsey Enterprises, 234 Md. 574, 578, 200 A. 2d 76 (1964); Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 19, 155 A. 2d 691 (1959); and Long Co. v. State Accident Fund, 156 Md. 639, 647, 144 A. 775 (1929). Thus, according to Larson, the fact that the work done by an individual's[***17] employer "is a parcelled-out fraction of the main job is proof enough" that one who parcels out is also a principal contractor.

   [*227] The bases for determining whether a firm is a statutory employer can perhaps be better understood by reference to two cases holding that firms were not statutory employers.  In Ryan v. Bethlehem Sparrows Point Shipyard, 209 F. 2d 53 (4th Cir. 1953), the court held that a shipbuilder was not the statutory employer of an employee of a refrigerating company.  The employee had been sent on board a ship to correct faulty equipment sold by his employer to the shipbuilder.  Judge Dobie pointed out for the court that in Bennett all the necessary work, labor and materials in the finishing of the tile floors of the building were to be provided by the subcontractor and that in State v. City of Baltimore, 199 Md. 289, 298, 86 A. 2d 618 (1952), Archer Iron Works, Inc., contracted with the general contractor on a tunnel project in Baltimore City for fabrication and erection of four head frames complete, [**1019] installed in place in accordance with the terms of the agreement between Archer and the general contractor. He said for the court: [***18] 
 
Hardly could it be contended that Archer was a mere seller rather than a sub-contractor.  The result of its work was integrally incorporated into the tunnel, just as in the Bennett case the tile floors were integrally incorporated into the building.  Under the contract before us, the installation of the refrigerating machinery was to be done entirely by Bethlehem.  [Id. 209 F. 2d at 56.]
 
 In Warren v. Dorsey Enterprises, supra, 234 Md. 574, Warren was injured while starting a stock car race at the Dorsey Raceway which was owned by Dorsey Enterprises, Inc.  He was employed by Free State Stock Car Racing Association, Inc., a corporation which conducted the races.  In holding that Dorsey "was not the principal contractor, and hence not a statutory employer of Warren under . . . sec. 62," Judge Henderson said for the Court, "Dorsey did not contract to produce or stage stock car races.  Thus, the agreement between Warren and Free State does not fall into the category of a subcontract, and the statutory provision is inapplicable." Id. at 579.

   [*228] Further insight is provided by the language used by Judge Parke for the Court in Bennett Building Co., [***19]  supra, 154 Md. 159. As indicated in Ryan, Bennett was the principal contractor for the construction of an office building.  It let a subcontract for the placement of tile on the floors of the building.  The main issue was whether § 62 operated to shield the principal contractor from liability.  Our predecessors found that it did.  Id. at 167-68. Judge Parke said for the Court in discussing the scope of § 62:

   Although acting independently of the other, the principal contractor and the subcontractor, with his workmen employed in the execution of the work, were each, in his own separate capacity, co-operating toward the execution of the whole of a particular work which the principal contractor had promised to perform; and the liability of the principal contractor to pay compensation to the employees of the subcontractor is confined to only these employees who were actually engaged in the execution of the whole or a portion of that one piece of work at the time of injury.

   It is this necessary employment of the employee of the subcontractor upon the piece of work which the principal contractor has agreed to perform that forms the basis of the statutory relation between[***20] the workman and the principal contractor, and, although it does not establish the relation of master and servant, as known to the common law, because of the intervention of the subcontractor as the workmen's master, yet the act creates a status which for the purposes of the act is that of employer and employee, as is explicit in the provision of section 62 that the principal contractor must pay compensation "as if that workman had been immediately employed by him." [Id. at 166.]
 
Accordingly, it will be seen that the Court spelled out one version of the test set forth in Honaker I, that each employer must be, "in his own separate capacity, co-operating toward [*229] the execution of the whole of a particular work which the principal contractor had promised to perform . . . ."

   IV The decision as to Honaker

   It must be remembered that there was an actual trial in the Honaker case, unlike the situation with reference to Coffey.  Bennett is squarely applicable here.  In that case laying the tiles on the floor was held to be a part of the work for which the principal contractor was responsible.  Honaker's employer, "in his own separate capacity," was "co-operating[***21] [with Miller] toward the execution of the whole of a particular work . . . which the principal contractor [, Miller,] had promised to perform," the erection of a house.

   Honaker would have us read "part of his trade, business or occupation" too narrowly.  He argues that because Miller does not have employees who put roofs on houses [**1020] this is not part of its "trade, business or occupation . . . ." There is no question but that Miller is in the business of building and selling homes.  From time immemorial shelter from the elements has been regarded as one of the necessities of life.  Any structure with four walls must have a roof on it before it may be considered a house.  Thus, a contention that the installation of a roof is not part of the "trade, business or occupation" of building homes is without merit.  Equally without merit is the claim that because Miller owns the land upon which it is erecting the houses which it sells, its "trade, business or occupation" does not include the construction of homes.

   We have reiterated rules for statutory construction many times.  In Baltimore Gas & Elec. v. Department, 284 Md. 216, 219, 395 A. 2d 1174 (1979), we quoted from[***22] Police Comm'r v. Dowling, 281 Md. 412, 379 A. 2d 1007 (1977), relative to statutory construction, in which latter case we cited a number of cases for each of the statements made:
 
The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent.  In determining that intent the Court considers the [*230]language of an enactment in its natural and ordinary signification.  . . . A corollary to this rule is that if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the General Assembly.  . . . A court may not insert or omit words to make a statute express an intention not evidenced in its original form.  . . . The General Assembly is presumed to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law.  . . . Absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory . . . .  [Id. at 418-19.] [***23]

   Gifford v. Nottingham, 68 Idaho 330, 193 P. 2d 831 (1948), cited and quoted extensively from Bennett.  The court there observed:
 
The benefits to the workmen in having sure and certain rights and remedies under the Workmen's Compensation Law against the proprietor or main contractor, as well as against the subcontractor, outweigh the occasional advantage that might accrue to him in an action at law.  [Id. at 339.]
 
We agree.  We hold Miller to be a statutory employer.  The statute in question was meant primarily to protect employees, not to provide them an additional remedy for their injuries.

   V The decision as to Coffey

   In Honaker I Judge Orth observed for the Court:

   The precise issue for decision is whether the trial court was correct in granting summary judgment. Maryland Rule 610, § d 1 spells out two [*231] requirements for the grant of the judgment.  It provides that the judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show (1) that there is no genuine dispute as to any material fact, and (2) that the moving party is entitled to a judgment as a[***24] matter of law. [Id. 278 Md. at 458.]
 
The function of a summary judgment proceeding is not to try the case or to attempt to resolve factual disputes, but to determine whether there is a dispute as to material facts sufficient to provide an issue to be tried.  Dietz v. Moore, 277 Md. 1, 4-5, 351 A. 2d 428 (1976), and cases there cited.

   A part of the controversy here involves the use of Saxe clips.  Thus, it is interesting to note that Derby, in its demurrer to Coffey's second amended declaration, stated that the declaration "shows on its face that [Derby] 'designed, manufactured, sold and delivered' structural steel beams to be used by others for a particular purpose," and therefore Code (1957, 1971 Repl. Vol., 1971 Cum. Supp.), Art. 43, § 54D, which makes it unlawful to use Saxe clips "in any construction involving the use of [**1021] structural iron or steel is not applicable" to Derby.  There is a similar demurrer to Coffey's first amended declaration.  In it Derby says that the declaration "shows on its face that [Derby] was a 'designer, manufacturer and vendor' of steel beams and that said steel beams were 'used' in construction" by people other than[***25] Derby, thereby barring any liability under Art. 43, § 54D.

   In determining whether a factual dispute exists, even if the underlying facts are undisputed, all inferences must be resolved against the moving party. Merchants Mortgage Co. v. Lubow, 275 Md. 208, 217, 339 A. 2d 664 (1975); James v. Tyler, 269 Md. 48, 53-54, 304 A. 2d 256 (1973); Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14, 155 A. 2d 691 (1959); White v. Friel, 210 Md. 274, 285, 123 A. 2d 303 (1956). It follows, therefore, that since Derby was the one making the motion for summary judgment, the evidence in the deposition and [*232] exhibits and the reasonable inferences which might be derived therefrom must be considered in a light most favorable to Coffey.  We recently said in Porter v. General Boiler Casing Co., 284 Md. 402, 396 A. 2d 1090 (1979):
 
The function of the trial judge on such a motion is said to be much the same as that which he performs at the close of all the evidence in a jury trial when motions for a directed verdict or requests for peremptory instructions require him to determine whether an issue requires resolution by a jury or is to be decided by the court as a[***26] matter of law. Washington Homes [v. Inter. Land Dev., 281 Md. 712,] 716 [, 382 A. 2d 555 (1978)]; Lynx, Inc. v. Ordnance Products, 273 Md. 1, 8, 327 A. 2d 502 (1974); and Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 41, 300 A. 2d 367 (1973). Moreover, "even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact." Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A. 2d 256 (1970), and cases there cited. It follows, accordingly, that if there is a conflict between the inferences which may be drawn from that before the court, summary judgment is not proper. [Id. at 413.]

   It will be recalled that the test laid down in the statute and in Honaker I for a determination of whether an individual is a statutory employer requires proof, among other things, that he "has contracted to perform work which is a part of his trade, business or occupation . . . ." The sum total of that which was before the trial judge on the motion for summary judgment is susceptible of an inference[***27] that Derby is no longer engaged in "the trade, business or occupation" of steel erection. Accordingly, the matter should be tried so that a [*233] finding of fact may be made as to whether Derby is in the steel erection business.

   As to Appeal No. 55: Judgment affirmed; appellants to pay the costs.

   As to Appeal No. 60: Judgment reversed and case remanded to the Court of Special Appeals for passage of an order reversing the judgment of the Circuit Court for Anne Arundel County and remanding the case to it for further proceedings consistent with this opinion; appellee to pay the costs. 

SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONALSERVICES et al. v. CHARLES HOPKINS et al. 
No. 103, September Term, 1978
 
Court of Appeals of Maryland
 
285 Md. 120; 1979 Md. LEXIS 215

 May  4, 1979, Decided

   PRIOR HISTORY: [**1]  
Certiorari to the Court of Special Appeals.  Hopkins -- Baltimore City Court, Ross, J.; Conley -- Circuit Court for Washington County, Rutledge, J.; Mosley -- Circuit Court for  Anne Arundel  County, Turk, J.

DISPOSITION: ORDERED, by the Court of Appeals of Maryland, that the writs of certiorari be, and they are hereby, dismissed, the petitions having been improvidently granted.  Costs to be paid by the State of Maryland.

COUNSEL: H. Edgar Lentz, Assistant Attorney General, with whom were George A. Nilson, Deputy Attorney General, and James J. Doyle, III, Assistant Attorney General, on the brief, for appellants.

   Richard L. North for appellee Charles Hopkins.  Edward J. Levin, with whom were Piper & Marbury on the brief, for appellee Billy Mosley.  Submitted on brief by Cornell Conley, in proper person.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Orth and Cole, JJ.

OPINION: [*120] ORDER

   Certiorari having been granted in these cases to review decisions of the Court of Special Appeals interpreting Division of Correction Regulation 105-2 governing violations of institutional rules which occurred in September[**2] of 1976; and it appearing that the pertinent provisions of Regulation 105-2 were revised by the Division of Correction, effective September 1, 1978, following modification of a consent decree previously entered by the United States District Court for the [*121] District of Maryland; and it further appearing, in view of the revisions to Regulation 105-2, that the appeals in these cases are of no prospective importance, it is, therefore, this 4th day of May, 1979,

   ORDERED, by the Court of Appeals of Maryland, that the writs of certiorari be, and they are hereby, dismissed, the petitions having been improvidently granted.  Costs to be paid by the State of Maryland. 

NATIONAL GRANGE MUTUAL INSURANCE COMPANY v. MICHAEL JAMESPINKNEY et al. 
No. 70, September Term, 1978
 
Court of Appeals of Maryland
 
284 Md. 694; 399 A.2d 877; 1979 Md. LEXIS 189

 April  10, 1979, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Thieme, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County reversed and case remanded to that court for trial; appellees to pay the costs.

CORE TERMS:  permission, motor vehicle, coverage, omnibus clause, named insured, insurer, actual operation, omnibus, deviation, insured, insurance policy, conversion, subtitle, resident, van, automobile liability insurance, liability insurance, so-called, passenger, bailee, uninsured motor vehicle, liability coverage, public policy, liability insurance policy, high water, insolvency, bailment, hell, new statute, interpreting

COUNSEL: Louis G. Close, Jr., for appellant.

   William A. Franch, with whom were Ronald H. Jarashow and Goldsborough, Franch & Collett on the brief, for appellees.

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

OPINIONBY: SMITH

OPINION: [*695] [**877] In this case we shall hold that it is not permissible under Maryland law to apply the so-called "liberal" or "hell or high water" rule to the construction of an omnibus clause in a motor vehicle liability policy.

   The parties have entered into an agreed statement of facts pursuant to Maryland Rule 828 g.  It reflects that petitioner, [*696] National Grange Mutual Insurance Company (National Grange), issued an automobile liability insurance policy on June 12, 1975, covering a Ford van. The parties afforded protection by the policy in addition to the named insured included "[a]ny other person while using [such] automobile with the permission of the named insured, provided his actual operation [was] within the scope of such permission . . . ." An accident took place at 3:22 a.m. while[***4] the van was being operated, by one of the respondents, Michael James Pinkney (Pinkney), an employee of the named insured. Seven passengers were in the cargo area of the van at that time.  The president of the named insured said he gave Pinkney permission only to take the vehicle home at the end of the work day and to return with it at the [**878] beginning of the next work day.  He claimed Pinkney was told that the vehicle was for use only in going to and from work. It was not to be used for any personal reason.  Moreover, he said he told Pinkney there was to be no more than one passenger with him at any given time because the vehicle had only one passenger seat.  On the other hand, Pinkney stated he was given permission to use the van for any purpose, including any personal reason, that he might use it as if it were his own.  His work day ended at approximately 5:00 p.m. It was established by deposition that on the night previous to the accident Pinkney used the vehicle as a means of transportation for himself and various passengers who wished to bowl.  He consumed a considerable quantity of alcoholic beverages on the night or morning in question prior to the accident.

   National[***5] Grange instituted an action for declaratory judgment for the purpose of determining whether the omnibus clause was applicable to Pinkney's operation of the vehicle at the time of the accident.  Pinkney and the Unsatisfied Claim and Judgment Fund Board, respondents here, were parties defendant to the proceeding, together with all others who could possibly be affected by such a determination.  The trial judge entered a summary judgment against National Grange, holding that it was bound under the clause in question. He followed the reasoning of the Court of Special Appeals in Insurance Co. of N. Am. v. State Farm, 35 Md. App. 402, [*697] 370 A. 2d 566 (1977), "adopt[ing] the 'liberal rule' of construction in regard to omnibus clauses in policies of insurance on motor vehicles." As he saw it, there was no triable issue of fact because the initial use of the vehicle was permissive and all of the disputed facts "relate[d] to whether the use was within the scope of the permission," which he found to be "no longer material" under the "liberal rule."

   The Court of Special Appeals did, indeed, adopt the so-called "liberal" rule in Insurance Co. of N. Am. v. State Farm, supra[***6] . We reversed in Insurance Co. of N. Amer. v. State Farm, 281 Md. 381, 378 A. 2d 1344 (1977). In so doing we made two points.  (1) The clause in question not only was virtually identical to that before the Court in Cohen v. Am. Home Assurance Co., 255 Md. 334, 258 A. 2d 225 (1969), and Goodwin v. Home Indemnity Co., 255 Md. 364, 258 A. 2d 220 (1969) (both decided the same day), but also the facts there were closely analogous to the facts in the latter cases, in each of which we had held coverage was not afforded the operator of the vehicle.  Hence, we found Cohen and Goodwin to be "controlling [t]here." (2) The Court of Special Appeals relied in part for its decision upon the adoption by the General Assembly of what was at the time of its decision Maryland Code (1957, 1972 Repl. Vol., 1976 Cum. Supp.) Art. 66 1/2, § 7-101 (a) (now Code (1977) § 17-104 (a), Transportation Article) making it mandatory that every owner of a motor vehicle have liability insurance. Since the accident in question took place on September 6, 1972, and the statute did not become effective until January 1, 1973, we said, "[T]hat statute could have no effect in interpreting the policy provision[***7] . . . before the Court." This last statement has been seized upon by the respondents here as an indication that we might otherwise have agreed with the Court of Special Appeals.  Ordinarily, we do not give advisory opinions. Because the accident in that case took place prior to the effective date of the new statute, we had no need to decide whether the new statute mandated a change in our prior holdings relative to the omnibus clause. We intended the statement to go no further than to indicate that the Court of Special Appeals had rested its opinion upon an improper [*698] foundation, a change of law which was not applicable in that case.

   Decisions relative to the interpretation and application of omnibus clauses have been placed by the textwriters into three categories.  One of these is referred to as the "liberal" or the "hell or high water" rule.  Of it, 6C J. A. Appleman and J. Appleman, Insurance Law and Practice § 4367 (Buckley ed. 1979), declares:

   A number of states have apparently felt that even an ordinary automobile liability insurance contract is as much for the benefit of members of the public as [**879] for the benefit of the named or additional insured. [***8] Therefore, upon an injury occurring they have felt it undesirable to permit litigation as to the use made of the vehicle, the scope of permission, purposes of the bailment, and the like.  These states have arbitrarily adopted a doctrine that if the vehicle was originally entrusted by the named insured, or one having proper authority to give permission, to the person operating it at the time of the accident, then despite hell or high water, such operation is considered to be within the scope of the permission granted, regardless of how grossly the terms of the original bailment may have been violated.  This rule is also, albeit less colorfully, known as the initial permission rule.  It should be noted however, that a minority of jurisdictions have rejected the rule.  [Id. at 196-99 (footnotes omitted).]

   Of the second or "conversion" rule Appleman states:

   The majority of jurisdictions adhere to the conversion rule, namely, that where the use made of the automobile by the bailee sufficiently exceeds the scope of the permission given so as to make the bailee liable to the insured in an action for conversion such use is not covered.  This means, fundamentally, that the vehicle[***9] must be used for a purpose reasonably within the scope of the permission granted, within the time limits imposed or [*699] contemplated by the parties, and operated within geographical limits so contemplated.  Nor is this an unreasonable rule.  It would be odd, rather, to say that the automobile is operated with the permission or consent of the insured in order to impose liability on the insurer, and yet to say that such use is not with the permission of the named insured if he should sue the bailee for conversion. Of course, this does not mean that every immaterial deviation would automatically cut off the policy protection.  It merely declares that such use must be reasonably within the intention of the parties at the time consent is given, or a use to which the insured would have consented had he known of it. [Id. at 204-05 (footnote omitted).]

   Of the third or "minor deviation" rule the same authors state:

   A third rule adopted by various courts may be termed, for the sake of brevity, the rule of minor deviation. Under that doctrine, if the use made by the bailee is not a gross violation of the terms of the bailment, even though it may have amounted to a deviation, [***10] protection is still afforded such additional insured. Thus, if the automobile is being used upon the route contemplated at a time when permission was in force and effect, it is immaterial that the purpose of such use was different than that for which consent had been given by the named insured. And a slight deviation will not change the permissive character of the use.  [Id. at 216-17 (footnote omitted).]

   12 G. Couch, Cyclopedia of Insurance Law §§ 45:463, 464, 468, 470 (2d ed. R. Anderson 1964) is in accord with the position taken by Appleman.  In referring to what it calls the "moderate or minor deviation rule," the latter work states, "Increasingly, the courts have taken an intermediate position between the two more extreme rules . . . ." Id. at 462.

   This Court has had occasion to consider the omnibus clause in past litigation in a number of cases in addition to Insurance [*700] Co. of N. Amer. v. State Farm, supra; Goodwin v. Home Indemnity Co., supra; and Cohen v. Am. Home Assurance Co., supra. See, e.g., Federal Ins. Co. v. Allstate Ins. Co., 275 Md. 460, 341 A. 2d 399 (1975); Keystone Ins. v. Fidelity & Cas., 256 Md. 423, 260 A. 2d 275 (1970);[***11] Unsat. C. & J. Fund v. U.S.F. & G., 256 Md. 412, 260 A. 2d 279 (1970); Am. Home Assur. Co. v. Erie Ins., 252 Md. 116, 248 A. 2d 887 (1969); Melvin v. American Auto Ins. Co., 232 Md. 476, 194 A. 2d 269 (1963); and Selected Risks v. Miller, 227 Md. 174, 175 A. 2d 584 (1961).

   As our discussion in Insurance Co. of N. Amer. indicates, we have not adopted the so-called liberal rule.  We have specifically held persons not covered by an omnibus [**880] clause using language similar to that in the case at bar because their actual operation of the motor vehicle in question was not within the scope of the permission granted to them.  Obviously, we would have held to the contrary had we adopted the liberal rule.

   We turn to an examination of the statutes applicable to automobile liability insurance because it is argued that the General Assembly has changed the public policy of this State relative to insurance.  These are found in Code (1977) Transportation Article and Code (1957) Art. 48A.  Section 17-101 of the Transportation Article states that "'required security' means security in the form and providing for the minimum benefits required under [Title 17 of the Transportation[***12] Article] or any other provisions of the Maryland Vehicle Law." Exemptions in no way applicable to this proceeding are provided in § 17-102.  The required form of security is specified in § 17-103 (a) (1) to be "a vehicle liability insurance policy written by an insurer authorized to write these policies in this State," with provision made in § 17-103 (a) (2) for the Motor Vehicle Administration to accept "another form of security in place of a vehicle liability insurance policy if it finds that the other form of security adequately provides the benefits required by subsection (b) of [§ 17-103]." The required minimum benefits set forth in § 17-103 (b) are as follows:

   [*701] (b) . . . The security required under this subtitle shall provide for at least:

   (1) The payment of claims for bodily injury or death arising from an accident of up to $20,000 for any one person and up to $40,000 for any two or more persons, in addition to interest and costs;

   (2) The payment of claims for property of others damaged or destroyed in an accident of up to $5,000, in addition to interest and costs;

   (3) The benefits required under Article 48A, § 539 of the Code as to basic required[***13] primary coverage; and

   (4) The benefits required under Article 48A, § 541 of the Code as to required additional coverage.
 
Evidence of security is required by § 17-104 as a prerequisite to registration of a motor vehicle. Provision for the lapse or termination of required security is made by § 17-106.  Under § 17-107 a person "who has knowledge that a motor vehicle is not covered by the required security" is forbidden to drive it or, if he is the owner, to "knowingly permit another person to drive it."

   Code (1957, 1972 Repl. Vol., 1978 Cum. Supp.) Art. 48A, §§ 538-546 were originally enacted by Chapter 73 of the Acts of 1972 under what was there referred to as a "new subtitle '35. Motor Vehicle Casualty Insurance -- Required Primary Coverage' . . . ." Chief Judge Murphy summarized most of these provisions for the Court in Travelers Ins. Co. v. Benton, 278 Md. 542, 365 A. 2d 1000 (1976):

   Section 539 provides that no policy of motor vehicle liability insurance may be issued after January 1, 1973 unless it affords minimum medical, hospital, disability and loss of income benefits up to $2,500 (the PIP coverage) for the named insured and for other designated individuals[***14] injured as a result of a motor vehicle accident.  Section 540 provides that the benefits required under § 539 shall be payable [*702] without regard to fault. Section 543 entitled "Duplication of benefits; coordination of benefits" provides in subsection (a) that no person shall recover PIP benefits from more than one motor vehicle liability policy or insurer "on either a duplicative or supplemental basis." Section 543 (b) provides, with respect to a person injured in an accident while occupying a motor vehicle for which PIP coverage is "in effect," that the PIP benefits "shall be payable by the insurer of the motor vehicle." Section 543 (c) provides, with respect to a person insured under a policy providing PIP coverage who is injured in an accident while occupying a motor vehicle for which such coverage "is not in effect," that the PIP benefits "shall be payable by the injured party's insurer providing such coverage." [Id. at 543.]
 
[**881] Accord, Government Employees Ins. v. Harvey, 278 Md. 548, 549, 366 A. 2d 13 (1976). To this we add that § 541 (a) provides that nothing in that subtitle shall affect or limit "the provisions of Title 17 of the Transportation [***15] Article" and all motor vehicle liability policies issued, sold or delivered in Maryland are to "provide the minimum liability coverage specified [in Title 17]." In addition, every policy of motor vehicle liability insurance issued subsequent to July 1, 1975, is required by § 541 (c) to contain "coverage, in at least the amounts required under Title 17 . . ., for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle . . . ." Because § 17-103 (b) of the Transportation Article specifies that the required minimum benefits include those "required under Article 48A, § 541 . . . as to required additional coverage," we point out that the requirement of "minimum liability coverage [as] specified [in Title 17]" and the uninsured motorist endorsement are the only coverages mandated by § 541.

   Provision is made in Code (1957, 1972 Repl. Vol., 1978 Cum. [*703] Supp.) Art. 48A, § 243H for payment from the Maryland Automobile Insurance Fund on claims arising after January 1, 1973, to "a qualified person" [***16] in instances where such individual has a valid claim for death or personal injury or for damage to property in excess of $100 "caused by an uninsured operator" and in a number of other instances, such as where the identity of the motor vehicle and of the operator and the owner cannot be ascertained, where it is established that at the time of the accident the vehicle was in the possession of some person other than the owner without the owner's consent and the identity of that person cannot be ascertained, and where the accident is caused by an operator or owner whose whereabouts cannot be determined.  Under § 243L (e) a "qualified person" includes not only a resident of this State or the owner of a motor vehicle registered in this State, but "a resident of another state, territory, or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded to residents of this State, of substantially similar character to that provided for by th[at] subtitle . . . ."

   Our citizens are further protected by the Maryland Insurance Guaranty Association, for which provision is made in Code (1957, 1972 Repl. Vol., 1978 Cum. Supp.) [***17] Art. 48A, §§ 504-518, inclusive.  It is applicable to "covered claims" as there defined.  To come within this category certain tests are set forth including the fact that such claim must "arise out of the insurance policy contracts of the insolvent insurer issued to residents of this State or which are payable to residents of this State on behalf of insureds of the insolvent insurer . . . ." These sections were enacted by Chapter 651 of the Acts of 1975 and replace the former Motor Vehicle Security Fund which provided like coverage relative to insolvent motor vehicle liability insurance companies. The latter fund was created after the collapse of such a company.  It made substantial disbursements after some other companies become insolvent.

   We note that neither the Maryland Automobile Insurance Fund nor the Maryland Insurance Guaranty Association is maintained by the State.  The Maryland Automobile Insurance [*704] Fund writes insurance for those individuals who may not otherwise be able to obtain insurance.  Provision is made by Art. 48A, § 243A (c) for it to estimate any insufficiency in the fund and to certify it to the Industry Automobile Insurance Association, created[***18] under § 243M. Under § 243M (d) it assesses its members for such insufficiency.  Likewise, Art. 48A, § 508 (a) (3) provides in pertinent part that the Maryland Insurance Guaranty Association shall "[a]llocate claims paid and expenses incurred among the four [authorized] accounts [of the Association] separately, and assess member insurers separately for each account in amounts necessary to pay the obligation of the Association under [the] paragraph [relative to insolvency] subsequent [**882] to an insolvency, the expenses of handling covered claims subsequent to an insolvency, the cost of examinations under § 513 and other expenses authorized by [the] subtitle [relative to the Maryland Insurance Guaranty Association]."

   It will be seen that the public policy of this State as enunciated by the General Assembly is that there should be liability coverage as to personal injury of $20,000 for any one person and $40,000 for any accident and that the coverage for property damage should be $5,000.  It will further be seen that under the combination of required uninsured motorist endorsements in policies issued in Maryland and the provision for payment from the Maryland[***19] Automobile Insurance Fund, the only persons injured in Maryland not afforded protection equal to the minimum which would be provided under an omnibus clause are those persons from places not having the equivalent of our Maryland Automobile Insurance Fund and a few people disqualified in such instances as that under Art. 48A, § 243H (a) (1) (i) where a claimant might have been riding in an uninsured motor vehicle owned by him.  This combination seems to us to eliminate virtually all of the policy reasons which might be put forward for adoption of the "liberal" rule.

   It should be specifically noted that there is no provision in any Maryland statute to which we have been referred, or which we have found in our research, which requires an omnibus clause to appear in any motor vehicle liability [*705]insurance policy. Although it may be interesting to scholars to attempt to lump decisions on clauses such as that here before the Court into categories such as "liberal," "conversion," or "minor deviation," an insurance policy is a contract and it is under terms of contract law of the State that it should be interpreted.  The holdings of this Court relative to the interpretation of[***20] insurance contracts were well summarized for the Court by Judge Singley in Gov't Employees Insur. v. DeJames, 256 Md. 717, 261 A. 2d 747 (1970):

   It is well settled that in interpreting insurance contracts, words are to be given their customary and normal meaning.  State Farm Mut. Auto Ins. Co. v. Treas, 254 Md. 615, 255 A. 2d 296 (1969); American Home Assurance Co. v. Erie Ins. Exchange, 252 Md. 116, 248 A. 2d 887 (1969); Offutt v. Liberty Mut. Ins. Co., 251 Md. 262, 247 A. 2d 272 (1968); Harleysville Mut. Cas. Co. v. Harris & Brooks, Inc., 248 Md. 148, 151, 235 A. 2d 556 (1967), and cases there cited. Absent ambiguity the construction of the contract remains within the province of the court and Maryland has not adopted the rule, followed in many jurisdictions, that an insurance policy is to be most strongly construed against the insurer, American Cas. Co. v. Aetna Cas. & Surety Co., 251 Md. 677, 248 A. 2d 487 (1968); Mateer v. Reliance Ins. Co., 247 Md. 643, 233 A. 2d 797 (1967); Ebert v. Millers Mut. Fire Ins. Co., 220 Md. 602, 155 A. 2d 484 (1959). If the language of an insurance contract is ambiguous, however, construction is for the jury, [***21]Ebert v. Millers Mut. Fire Ins. Co., supra, 220 Md. at 610; Eagle Star & British Dominions Ins. Co. v. Fleischman, 175 Md. 433, 2 A. 2d 424 (1938); 22 Appleman, Insurance Law and Practice § 12853 (1947) at 7, and the ambiguity is to be resolved against the company which prepared the policy and in favor of the insured, American Cas. Co. v. Aetna Cas. & Surety Co., supra, 251 Md. at 684; Allstate Ins. Co. v. Humphrey, 246 Md. 492, 496, 229 A. 2d 70 (1967). [Id. at 720.]
 
[*706] Accord, Aragona v. St. Paul Fire & Mar. Ins., 281 Md. 371, 375, 378 A. 2d 1346 (1977); Government Employees Ins. v. Harvey, 278 Md. 548, 553, 366 A. 2d 13 (1976); Federal Ins. Co. v. Allstate Ins. Co., 275 Md. 460, 473, 341 A. 2d 399 (1975); Neuman v. Travelers Indemnity Co., 271 Md. 636, 641, 319 A. 2d 522 (1974); and C & H Plumbing v. Employers Mut., 264 Md. 510, 511-12, 287 A. 2d 238 (1972). We point out that Maryland differs from some of the states such as New Jersey which have adopted the "liberal" rule since there an insurance policy is to be most strongly construed against the insurer, [**883] which is not the rule in Maryland.  Moreover, as[***22] was pointed out in Weissberg Corp. v. N.Y. UW Insur., 260 Md. 417, 429, 272 A. 2d 366 (1971), citing Offutt v. Liberty Mut. Ins. Co., 251 Md. 262, 270, 247 A. 2d 272 (1968), we may not make a new contract under guise of construction.

   We find nothing in the enactments of the General Assembly relative to insurance to indicate that we are expected as a matter of public policy to follow the so-called "liberal" rule relative to interpretation of omnibus clauses.  We find no mandate which obliges us to depart from either our prior opinions on the subject of omnibus clauses or the prior authorities in this State relative to the interpretation of insurance contracts.  It should be specifically noted that although the clause in the contract now before the Court is similar to that before us in Insurance Co. of N. Amer. v. State Farm, supra, 281 Md. 381; Goodwin v. Home Indemnity Co., supra, 255 Md. 364; and Cohen v. Am. Home Assurance Co., supra, 255 Md. 334, it is not identical to all of the omnibus clauses which have appeared in cases before us.  We note specifically that all omnibus clauses do not contain the same language.  Because these clauses are part of contracts, [***23] it follows that they must be interpreted pursuant to their terms on a contract by contract or case by case basis, and not by sweeping language saying that regardless of the exact provisions of the contract we shall interpret all similar, but not identical, contracts alike.  Here the policy provisions specify in plain, unambiguous, easily understandable language that for coverage to exist Pinkney not only was required to have "the permission of the named insured [for [*707] use of the van, but] his actual operation [must have been] within the scope of such permission . . . ."

   Pinkney in this case said he had permission to use the vehicle in question as if it were his own for any reason, including personal reasons.  The president of his employer, the named insured, stated his specific instructions to Pinkney were that he was to use the vehicle only in going to and from work, that no personal use was permitted, and he was to have no more than one passenger in it. It follows, therefore, that there is a disputed issue of fact here which must be resolved by trial.  If the trier of fact concludes after listening to all of the testimony that the actual operation of the vehicle was[***24] within the scope of the permission granted, then National Grange will be obliged to defend. Obviously, if the trier of fact believes that such actual operation was not within the scope of the permission granted, then National Grange is not obligated under the omnibus clause.

   Judgment of the Circuit Court for Anne Arundel County reversed and case remanded to that court for trial; appellees to pay the costs. 

THE MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS et al. v.ANNAPOLIS WATERFRONT COMPANY et al. 
No. 6, September Term, 1978
 
Court of Appeals of Maryland
 
284 Md. 383; 396 A.2d 1080; 1979 Md. LEXIS 165

 January  24, 1979, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Filed February 13, 1979; Denied February 16, 1979. 

PRIOR HISTORY:  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Williams, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed; remanded to that court with instructions to reverse the decree of the Circuit Court for Anne Arundel County and to remand to that court with instructions to enter a decree consistent with the views expressed herein.  Costs to be paid by appellees.

CORE TERMS:  wardens, charter, aldermen, municipal, port, navigation, wharves, debatable, water, wharf, environmental, pollution, constructed, municipality, ordinance, state statute, regulation, build, piers, boat, substantial evidence, creek, license, buoys, administrative body, Administrative Law, judicial review, state law, preservation, interfere

COUNSEL: Eugene M. Lerner, City Attorney, and Richard G. Anderson, Assistant City Attorney, for appellants.

   Ronald A. Baradel, with whom were Hartman & Crain on the brief, for appellees.

JUDGES: Murphy, [***5] C. J., and Smith, Digges, * Levine, Eldridge, Orth and Cole, JJ.  Cole, J., delivered the opinion of the Court.

* Levine, J., participated in the hearing of the case and in the conference in regard to its decision but died prior to the adoption of the opinion by the Court.

 
OPINIONBY: COLE

OPINION: [*385] [**1082] The seeds of this controversy were sown when the General Assembly enacted Chapter 26 of the Laws of Maryland of 1785 which vested in the Port Wardens of the City of Annapolis the power and responsibility to regulate the construction of wharves in the port of that city.  Chapter 26 provided that the Port Wardens were to determine and regulate all matters relating to (1) the erection or building of wharves in the port, (2) the distances the wharves extended into the water, and (3) the materials of which the wharves were to be constructed and the manner and form of such construction, always keeping in view the preservation of the navigation of said port. It provided that a failure to procure a license from the Wardens prior to construction of a wharf [*386] would be punishable by a fine.  It also provided a right of appeal to the Mayor and Aldermen by any citizen[***6] aggrieved by the decision of the Port Wardens.

   These provisions were incorporated into the city charter as Sections 36 through 40 inclusive and remained unchanged until the City amended its charter in 1970 allowing the Wardens to consider in deciding whether to issue a license "the effect of the proposed wharf and its uses on marine life, wildlife, conservation, water pollution and erosion." n1

n1 Sections 38, 39, and 40 are the pertinent sections for consideration in this case.
 
"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 creation 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, keeping in view the preservation of the navigation of said port and the effect of the proposed wharf and its uses alone or in concert with existing wharves and their uses on marine life, wildlife, conservation, water pollution and erosion, 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 or constructed in such manner as may be deemed not sufficiently substantial and lasting, or to materially increase water pollution or erosion, or materially impair marine life, wildlife, or conservation." [Emphasis supplied to show changes from prior wording.]
 
"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 person 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 obtain.  (P.L.L., 1888, art. 2, § 44; 1914 Code, § 47.)"
 
"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 de novo shall lie to the mayor and aldermen. Appeal must be filed in writing with the city clerk within thirty days of the final decision of the said port wardens. (P.L.L., 1888, art. 2, § 45; 1914 Code, § 48; Char. Am. No. 3, § 1.)"

[***7]

   [**1083] In 1974, the General Assembly (by Chapter 835 of the Laws of Maryland of 1974) amended Maryland Code (1957, 1973 [*387] Repl. Vol.), Article 23A, § 2, dealing with the authority of municipal corporations.  By that Act, the Legislature added subsection 23A to Article 23A, § 2 n2 which encompassed the pre-1970 authority of the Port Wardens as set forth in the charter of the City of Annapolis but did not include the language of the 1970 charter amendment.

n2 (23A) Port Wardens.  To provide for the creation and appointment of a board of port wardens to exercise jurisdiction within the limits of the municipal corporation.

   (i) The wardens, or a majority of them, may determine and regulate all matters relating to the erection or building of wharves and mooring buoys or flotation wharves in the port, so far as respects the distance wharves, mooring buoys or floating wharves may be extended into the water and the materials of which they shall be constructed and the manner and form of construction.  The wardens shall always consider the preservation of the navigation of the port by not permitting any wharf mooring buoys or floating wharf to be carried out in such a manner as to render the navigation of the port too close and confined or to be built of such materials or constructed in such a manner as may be deemed not sufficiently substantial and lasting.

   (ii) No person may build any wharf, or carry out any earth or other material for the purpose of building a wharf, nor shall any persons place or erect mooring buoys or floating piers without a license from the port wardens. If any person violates the provisions of this section, or if any person builds any wharf a greater distance into the waters of the port, or in a different form, or of different materials than determined and allowed by the wardens, he is subject to a fine as imposed by the legislative body of the municipal corporation.

   (iii) In all differences that arise between any citizen of any municipal corporation and the port wardens of that municipal corporation concerning the discharge of the duties of the port wardens, an appeal may be taken to the legislative body of the municipal corporation.  These provisions . . . contain the full extent of the powers granted to Port Wardens under State law . . . .

[***8]

   This was the state of the law on February 6, 1975 when the Annapolis Waterfront Company (the Company) applied to the Port Wardens of the City of Annapolis (the Wardens) for permission to build 42 additional n3 slips for The Point Condominium (the Point).  A public hearing was held before the Wardens on December 10, 1975.  On January 14, 1976 the Wardens denied the application by a unanimous decision, on the grounds that the proposed improvements would create pollution in Spa Creek, adjoining the Point; that the project [*388] would result in more congested navigation; and that there would be an adverse effect on traffic conditions in the area of the Eastport Bridge.

n3 In November, 1971, the Mayor and Aldermen of the City of Annapolis had approved the construction of 42 slips for the Point owned by the Company with the right to apply for an additional 42 slips when construction of all 100 units in the condominium had been completed.

   The Company and the Council of Unit Owners of the Point (Council) n4 then [***9]appealed to the Mayor and Aldermen, pursuant to § 40 of the Annapolis City Charter. The Mayor and Aldermen held a de novo hearing on February 17, 1976.  At that hearing the Company and Council offered the following testimony. Mr. Paul N. Pearson testified that the slips should be constructed to stop erosion on the shoreline near the [**1084] Point.  Mr. Richard McClelland testified that the proposed slips would not interfere with navigation and would not cause hazards for boat traffic, citing a 1975 United States Army Corps of Engineers Report on Spa Creek, which was then introduced into evidence. McClelland also was of the opinion that there was a great demand among unit owners for additional slips.  Mr. C. Godfrey Garvey, Mr. Steven Kaplan, and Mr. William J. Smith, Jr., owners of condominium units in the Point, spoke in favor of the additional slips.  The Company and Council also introduced into evidence certain documents relating to the Wardens' decision and the plans for construction of the additional slips.

n4 The Council of Unit Owners of The Point Condominium is an unincorporated body set up pursuant to the requirements of the Maryland Horizontal Property Act, for the purpose of administering and managing the common elements and facilities of the condominium, which includes waterfront facilities and boat slips.

[***10]

   Several people then spoke in opposition to the project.  Mr. Malcolm Smith, counsel for the opposition, questioned the number of unit owners who really wanted boats. He argued that there were still vacancies among the slips already constructed at the Point and that additions would further congest Spa Creek. Captain Thomas M. Adams testified that he had made a statistical study of boat ownership in three residential complexes in Annapolis, which showed that 42 slips already in existence were sufficient to accommodate the Point. Representatives of Annapolis community groups stated that their members opposed the project.  Several unaffiliated property owners concurred in this position.

   [*389] At their regular meeting on March 8, 1976, the Mayor and Aldermen adopted Resolution R-11-76, which denied the application and affirmed the Wardens' decision.  The Resolution contained certain findings of fact: that "no sufficient evidence was produced at the hearing to show that the piers will be built of such materials or constructed in such manner as may be deemed substantial and lasting"; that "the forty-two . . . slips would add to the already congested situation in Spa Creek", that[***11] pollution in the creek would increase; and that emergency vehicles travelling over the Eastport Bridge would be hindered by the additional waiting time necessary to permit the additional boats on the creek to move past the bridge.

   The Company and the Council then filed a bill of complaint in the Circuit Court for Anne Arundel County, praying for a mandatory injunction ordering the Mayor and Aldermen to grant the permits necessary for the construction of the additional 42 slips.

   The circuit court, after making certain preliminary rulings, held that the provisions which grant powers to the Wardens under state law are in conflict with the powers conferred upon the Wardens under the Annapolis City Charter and that the general grant of power from the state to municipalities under Article 23A, § 2 did not authorize the city to expand upon the specific powers given the Wardens by the State.  The court concluded that as to construction materials, navigation and, partly, traffic conditions, there was no evidence to support the findings of the Mayor and Aldermen; and that as to pollution and, partly, traffic conditions, there was "no substantial evidence" to support their findings.  Therefore, [***12] the circuit court held that the actions of the Mayor and Aldermen were "arbitrary, capricious and unsupported by any competent supporting evidence." It granted the injunction.

   The Mayor and Aldermen then appealed to the Court of Special Appeals, which affirmed the decision of the circuit court in an unreported per curiam opinion issued on January 26, 1978.  We granted certiorari to review the circuit court's conclusion that the Wardens had no power to consider environmental effects of the proposed construction and to [*390] determine whether the circuit court was correct in ruling that there was no evidence to support their findings and no substantial evidence to support the denial of permission to construct the additional 42 slips.

   According to § 3 of Article XI-E of the Constitution of Maryland, adopted in 1954:

   Any . . . municipal corporation, now existing or hereafter created, shall have the power and authority, (a) to amend or repeal an existing charter or local laws relating to the incorporation, organization, government, or affairs of [**1085] said municipal corporation heretofore enacted by the General Assembly of Maryland, . . . .
  
The Mayor and Aldermen[***13] contend that § 3 of Art. XI-E thus enables the City of Annapolis to amend its charter as it relates to local government or affairs.  They further contend Article 23A of the Code, enacted to implement the constitutional amendment, only established minimum requirements with respect to the operation of municipal corporations and thus does not prohibit them from establishing additional charter standards and safeguards in furtherance of the authority already delegated.  They urge us to hold that the circuit court was in error as a matter of law.

   On the other hand, the Company contends that Article 23A, § 2 of the Code conflicts with § 38 of the charter, as amended in 1970, and that the charter provision must yield to a state statute on the same subject.  Neither party challenges the power of the City of Annapolis to amend its charter pursuant to Article XI-E, § 3 of the Maryland Constitution.  See generally Moser, County Home Rule -- Sharing the State's Legislative Power with Maryland Counties, 28 Md. L. Rev. 327, 334-36 (1968). Rather, the Company argues that since the 1974 enactment of Article 23A, § 2 (23A) did not specifically empower the Wardens to consider environmental[***14] factors, the Mayor and Aldermen's decision in this case is a nullity because § 38 of the charter, as amended, which allowed consideration of such factors, was in conflict with subsection (23A) and was superseded by the state statute.

   [*391] Several decisions of this Court have examined alleged conflicts between local and state laws, recognizing that one of the purposes of "home rule" was to allow local areas some independence in deciding questions of local concern, see City of Baltimore v. Sitnick & Firey, 254 Md. 303, 255 A. 2d 376 (1969); State v. Stewart, 152 Md. 419, 137 A. 39 (1927). This Court has adhered to the rule of construction that when municipal ordinances are "enacted in pursuance of competent authority, they should be upheld by every reasonable intendment, and reasonable doubts as to the validity of an ordinance should be resolved in its favor." Tar Products Corp. v. Tax Commn., 176 Md. 290, 297, 4 A. 2d 462 (1939). The established principle of law in this state is that:
 
[O]rdinances which assume directly or indirectly to permit acts or occupations which the State statutes prohibit, or to prohibit acts permitted by statute or Constitution, [***15] are under the familiar rule for validity of ordinances uniformly declared to be null and void.  Additional regulation by the ordinance does not render it void.  [Rossberg v. State, 111 Md. 394, 74 A. 581 (1909).]
 
We have, accordingly, ruled that "a conflict exists only when a local law prohibits something permitted by the legislature, or permits something prohibited by the legislature." Murray v. Director of Planning, 217 Md. 381, 389, 143 A. 2d 85 (1958). Accord, County Council v. Montgomery Ass'n, 274 Md. 52, 57-58, 333 A. 2d 596 (1975); City of Baltimore v. Sitnick & Firey, supra, 254 Md. at 311-14; Reed v. Pres. of North East, 226 Md. 229, 172 A. 2d 536 (1961); Tar Products Corp. v. Tax Commn., supra, 176 Md. at 296. See also other cases cited in City of Baltimore v. Sitnick & Firey, supra, 254 Md. at 314. In other circumstances, the state may permit municipalities to exercise concurrent regulatory authority.

   When we examine the facts before us, there are several reasons why there is no conflict between § 38 of the charter as amended, and subsection 23A of the Code.  First, § 38, as amended, does not prohibit something that subsection [***16]23A permits, as would be the case if, for example, the city charter [*392]prohibited the Wardens from considering the preservation of the navigation of the port, or if the charter forbade the Wardens from regulating the construction of wharves and buoys in the port. Nor does § 38, as amended, permit the Wardens to do something prohibited by the General Assembly; for subsection 23A, does not specifically prohibit the Wardens from doing anything. It merely sets forth their powers and affirmative standards for the exercise of those powers.  The purpose of both subsection 23A of the Code, and § 38 of the charter is to allow the Wardens to regulate construction on waterways.

   As we see it, the 1970 amendment of § 38 of the charter merely permitted additional [**1086] regulation of the construction of wharves and piers in Annapolis, consistent with the purpose of subsection 23A.  As such, this case is analogous to Rossberg v. State, supra, in which a municipal ordinance imposing greater penalties for possession or sale of cocaine than a state statute prohibiting the same acts was upheld as not repugnant to the state law; Tar Products Corp. v. Tax Commn., supra, where[***17] a city ordinance requiring applications for a tax exemption to be filed at a particular date, not later than the time for revision and correction of tax lists was held valid, while the state law prescribed that such applications be filed by the time for revision, but not at a particular date; and Reed v. Pres. of North East, supra, in which we upheld a municipal resolution requiring changes in the town charter to be published in two newspapers, when a state statute only required publication in one newspaper.  All the amendment to § 38 did was to add another factor which the Wardens were to consider in reaching their decision.  As we stated in Reed v. Pres. of North East, supra, 226 Md. at 249-50: "The general principle underlying the various decisions is that complementary municipal regulations are not struck down where they are in conformity with the plan or spirit of the State statutes."

   A second reason why there is no conflict between subsection 23A of the Code and § 38 of the charter, as amended, is that subsection 23A does not prescribe the exclusive means by which the Wardens can make decisions.  [*393] Article 23A, implementing Article XI-E, § 3, only establishes[***18] minimum requirements regarding municipal affairs.  Municipalities are free to provide for additional standards and safeguards in harmony with concurrent state legislation.  See Reed v. Pres. of North East, supra, 226 Md. at 249. See also County Council v. Montgomery Ass'n, supra.

   Finally, we observe that the language of subsection 23A does not forcefully express any legislative intent to occupy a specific field of regulation and thus preempt municipal action in the same area.  The General Assembly is presumed to be aware of the law in existence at the time a bill is enacted.  See McCarthy v. Bd. of Education of A.A. Co., 280 Md. 634, 374 A. 2d 1135 (1977); County Council v. Montgomery Ass'n, 274 Md. 52, 333 A. 2d 596 (1975); City of Baltimore v. Sitnick & Firey, supra, 254 Md. at 322; Planning Comm. v. Silkor Corp., 246 Md. 516, 524-25, 229 A. 2d 135 (1967). Since the General Assembly created the Port Wardens of the City of Annapolis in 1785 and did not choose to legislate again on that subject until 1974, and must be deemed aware of the 1970 amendment to § 38 of the charter, we can only conclude that if the state did not wish to permit the Wardens to[***19] consider environmental factors, it would have expressly prohibited such action in 1974 in the language of subsection 23A.

   For these reasons, then, we hold that there is no conflict between subsection 23A of the Maryland Code and § 38 of the Annapolis City Charter, as amended in 1970.  The circuit court erred in its analysis of this issue.

   Having concluded that the Mayor and Aldermen could consider environmental effects of the proposed construction at the Point, we turn our attention to the second issue, whether the circuit court erred in holding that the decision of the Mayor and Aldermen was arbitrary and capricious.  The Mayor and Aldermen insist that there was substantial evidence in the record to support their decision.  They state that since the evidence before them made the issues of navigation, construction materials and pollution "fairly debatable," the circuit court should not have substituted its judgment for theirs.  The Company replies that there was no evidence presented to show that the construction materials [*394]would not be durable, that the proposed piers would impair navigation, or that the environment would be adversely affected by the project. n5

n5 The Company also contends that the Mayor and Aldermen's denial of the permits was arbitrary because one alderman switched his vote on the second roll call vote on the question.  This contention is without merit.  Before a measure has been officially adopted or rejected, no third party rights vest in the action of a municipality. A municipality is also free to reconsider its actions at a later date and rescind a measure previously enacted or adopt a position previously rejected if no rights have vested.  See Dal Maso v. County Commrs., 182 Md. 200, 34 A. 2d 464 (1943).

[***20]

   [**1087] Many opinions of this Court and contributions of distinguished scholars have discussed judicial review of administrative decision-making in Maryland.  See generally Dickinson-Tidewater v. Supervisor, 273 Md. 245, 255-56, 329 A. 2d 18 (1974); Heaps v. Cobb, 185 Md. 372, 378-81, 45 A. 2d 73 (1945); Hecht v. Crook, 184 Md. 271, 280-81, 40 A. 2d 673 (1945); Cohen, Some Aspects of Maryland Administrative Law, 24 Md. L. Rev. 1 (1964); Oppenheimer, Administrative Law in Maryland, 2 Md. L. Rev. 185 (1938); Tomlinson, Constitutional Limits on the Decisional Powers of Courts and Administrative Agencies in Maryland, 35 Md. L. Rev. 414 (1976). Administrative agencies, such as we have here, are arms of the legislature and derive all their authority from the legislative branch.  Dal Maso v. County Commrs., 182 Md. 200, 205, 34 A. 2d 464 (1943). This right of the legislature to delegate some of its powers to a municipal corporation has long been recognized by this Court.  See, e.g., Rossberg v. State, 111 Md. 394, 74 A. 581 (1909). Thus, where a municipal legislative body has enacted a zoning ordinance under powers granted by the General Assembly, a presumption[***21] of validity attaches to that act as an exercise of the police power.  Eckes v. Board of Zoning Appeals, 209 Md. 432, 437, 121 A. 2d 249 (1956); Wakefield v. Kraft, 202 Md. 136, 96 A. 2d 27 (1953); R. Anderson, American Law of Zoning and Planning, § 25.26 (2d ed. 1977); 2 A. Rathkopf, The Law of Zoning and Planning, §§ 21.01 -.02 (1957, 1978 Supp.). Further, we have held that courts of this state are without power to interfere with "any exercise of the legislative prerogative within constitutional limits, or with the lawful exercise of administrative authority or discretion." However, such administrative discretion does [*395] not go unchecked.  The judicial branch of the government ordinarily may, through appeal, the writ of mandamus, by injunction, or otherwise, correct any abuse of discretion by administrative agencies or review their actions when arbitrary, illegal, capricious or unreasonable.  Heaps v. Cobb, supra, 185 Md. at 379; Dickinson-Tidewater v. Supervisor, supra, 273 Md. at 255; Hecht v. Crook, supra, 184 Md. at 280-81. However, the scope of judicial review of decisions by administrative agencies is narrow, recognizing that board members[***22] have expertise in a particular area and ordinarily should be free to exercise their discretion as such.  Finney v. Halle, 241 Md. 224, 216 A. 2d 530 (1966). Accordingly, this Court adheres to the proposition that a reviewing court will not substitute its judgment for that of an administrative board n6 where the issue is fairly debatable and the record contains substantial evidence supporting the administrative decision.  E.g., Mont. Co. v. Woodward & Lothrop, 280 Md. 686, 376 A. 2d 483 (1977), cert. denied sub nom.  Funger v. Montgomery Co., 434 U.S. 1067 (1978); Agneslane, Inc. v. Lucas, 247 Md. 612, 233 A. 2d 757 (1967). See also Heath v. M. & C.C. of Baltimore, 187 Md. 296, 49 A. 2d 799 (1946); Oppenheimer, supra, at 209.

n6 Where municipal officials, such as the Mayor and Aldermen of the City of Annapolis, must pass upon applications for new construction, they are actually placed in the same status as a formal board of zoning appeals, Oppenheimer, Administrative Law in Maryland, 2 Md. L. Rev. 185 (1938), at 194; therefore, our review of the Mayor and Aldermen's denial of permission to construct additional slips at the Point will employ the standards generally applicable to judicial review of decisions of zoning boards.

[***23]

   When reviewing an administrative decision for arbitrariness or capriciousness, a court must first determine whether the question before the agency was fairly debatable. n7 In Eger v. Stone, 253 Md. 533, 542, [**1088] 253 A. 2d 372 (1969), we defined the term "fairly debatable":
 
We have made it quite clear that if the issue before the administrative body is "fairly debatable", that is, [*396] that its determination involved testimony from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the administrative body, in the absence of an unconstitutional taking of private property for public use without the payment of just compensation.  Brouillett v. Eudowood Shopping Plaza, Inc., 249 Md. 606, 241 A. 2d 404 (1968); Creative Country Day School, Inc. v. Montgomery County Board of Appeals, 242 Md. 552, 219 A. 2d 789 (1966); County Council for Montgomery County v. Gendleman, 227 Md. 491, 177 A. 2d 687 (1962). [emphasis supplied.]
 
Other courts employ this test.  See, e.g., Zahn v. Bd. of Public Works, 274 U.S. 325, 47 S. Ct. 594, 71 L. Ed. 1074 (1927); Aldridge v. Grund,[***24] 293 Ala. 333, 302 So. 2d 847 (1974), appeal dismissed, 421 U.S. 1007 (1975); City of Long Beach v. California Lambda Chapter, 255 Cal. App. 789, 63 Cal. Rptr. 419 (1967); Hanna v. Rathje, 171 N.W.2d 876 (Iowa 1969). Professor Rathkopf interprets the term to mean "a matter of opinion." A. Rathkopf, supra, § 21.05. The Supreme Court of Alabama explained the term this way:
  
So here, the question is: Was there presented to the Commission a debatable issue as to whether or not the rezoning was for the purpose of promoting health, safety, morals, or the general welfare of the county?  If it was, then the court ought not to interfere in the matter.

   In Cudd v. City of Homewood, 284 Ala. 268, 271, 224 So.2d 625, we said:

   The word "debatable" means, "Liable to be debated; disputable; subject to controversy or contention; open to question or dispute." Webster's New International Dictionary, 2d Ed. (Unabridged).  * * * [293 Ala. at 342.]

n7 A plethora of decisions of this Court have endorsed the "fairly debatable" test.  The most recent cases include Mont. Co. v. Woodward & Lothrop, 280 Md. 686, 376 A. 2d 483 (1977), cert. denied, sub nom.  Funger v. Mont. Co., 434 U.S. 1067 (1978); Rockville v. Stone, 271 Md. 655, 319 A. 2d 536 (1974); Trainer v. Lipchin, 269 Md. 667, 309 A. 2d 471 (1973); Zengerle v. Bd. of Co. Comm'rs, 262 Md. 1, 276 A. 2d 646 (1971).

[***25]

   In this case the Circuit Court for Anne Arundel County did not even consider whether the issues before the Mayor and Aldermen were fairly debatable upon reviewing their actions.  [*397] Consequently, we are compelled to reverse the decision of the circuit court.  While the issue is before us, however, we shall proceed to resolve this question.

   Whether an issue before an administrative agency is fairly debatable is an individualized determination based on the record evidence of each case. Applying the test in Eger v. Stone, supra, we are convinced that there was evidence in the administrative record concerning the environmental effects of the construction of additional slips which made this issue fairly debatable. On the side of the Company, McClelland testified regarding navigation; portions of the Army Corps of Engineers report on Spa Creek navigation and pollution were also considered by the agency.  Among the evidence in opposition to the project was a portion of the Corps of Engineers report and testimony by Malcolm Smith and by representatives of Annapolis community organizations to the effect that navigation in Spa Creek would be impaired and pollution increased. [***26] Therefore, we can only conclude that the Mayor and Aldermen were presented with evidence from which a reasonable man could draw different conclusions.  These issues were, at the very least, debated and subject to controversy.  It was for the administrative body, in the exercise of its discretion, to weigh the evidence before it.  The circuit court erred in substituting its judgment for that of the Mayor and Aldermen.

   Where the scope of review is not specified by statute, a corollary element in judicial review of administrative decisions for arbitrariness is a determination of whether the findings of the board were supported by substantial evidence: n8

    [**1089] While a court reviewing a decision of a board . . . may not substitute its judgment for that of the [*398] board, it will examine the record upon which the board's decision is based to determine whether the findings of the board are supported by substantial evidence. The scope of this judicial inquiry is commonly described in the orthodox terminology of the substantial evidence rule.  [R. Anderson, supra, § 25.27, at 269-70 (footnotes omitted).]
 
See, e.g., Dickinson-Tidewater v. Supervisor, supra; [***27]  Port Wardens v. Md. Cap. Yacht Club, 261 Md. 48, 273 A. 2d 102 (1971); Snowden v. Mayor & C.C. of Balto., 224 Md. 443, 168 A. 2d 390 (1961); Heath v. M. & C.C. of Baltimore, supra. We have defined the "substantial evidence test" as "whether a reasoning mind reasonably could have reached the factual conclusion the agency reached," Insurance Comm'r v. Nat'l Bureau, 248 Md. 292, 309, 236 A. 2d 282 (1967), or as "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,'" Bulluck v. Pelham Apts. 283 Md. 505, 390 A. 2d 1119 (1978); Snowden v. Mayor & C.C. of Balto., supra, 224 Md. at 448. See also C. McCormick, Evidence, § 352 (2d ed. 1972).  This review should not consist of judicial fact-finding or a substitution of judicial judgment for agency judgment.  Insurance Comm'r v. Nat'l Bureau, supra, 248 Md. at 309-10. Professor Davis analyzed the substantial evidence rule as follows:

   The heart of the fact-finding process often is the drawing of inferences from the evidence.  A fact finder may draw inferences from the words or gestures or inflections or demeanor of a particular witness, may infer a particular basic [***28]fact from the testimony of one or more witnesses on one side or on both sides, and may infer an ultimate fact from [*399] undisputed basic facts or from an entire record of conflicting evidence . . . .

   The question for the reviewing court is . . . whether the conclusions "reasonably may be based upon the facts proven." The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported.  The test is reasonableness, not rightness.  [4 K. Davis, Administrative Law, § 29.05, at 137, 139 (1958).]
 
Another commentator presented the following illustration of the operation of the rule:
 
[A]ssume that in an agency hearing five witnesses testify on one side of a proposition, and one witness testifies on the other.  In its findings, the agency states that it does not doubt the credibility of any of the witnesses, but that it is relying on the testimony of the one witness and disregarding that of the five.  Under the substantial evidence rule, a court would be required to uphold such findings.  [Cohen, supra, at 38.]

n8 As we said in Insurance Comm'r v. Nat'l Bureau, 248 Md. 292, 309, 236 A. 2d 282 (1967), while there are differences in the formulations, both tests are designed to correct arbitrary administrative action:

    Whichever of the recognized tests the court uses -- substantiality of the evidence on the record as a whole . . . [or] . . . fairly debatable . . . -- its appraisal or evaluation must be of the agency's fact-finding results and not an independent original estimate of or decision on the evidence.  The required process is difficult to precisely articulate but it is plain that it requires restrained and disciplined judicial judgment so as not to interfere with the agency's factual conclusions under any of the tests, all of which are similar. There are differences but they are slight and under . . . [either] . . . of the standards the judicial review essentially should be limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.

[***29]

   When we examine the record in this case, we find ample evidence by which a reasoning mind reasonably could have reached the conclusion that construction of an additional 42 slips at the Point would have adverse environmental ramifications.  The Corps of Engineers study indicates that turbidity of the water in Spa Creek will increase during construction of piers, decreasing light penetration and affecting photosynthesis.  The water will become enriched with nitrogen and phosphorus, leading to algal blooms and increased eutrophication of the creek. Construction along the creek will reduce the amount of permeable soil and increase the amounts of surface runoff water. Increasing numbers of boats will result in additional discharge of waste products, according to the report. There was testimony by several area residents that additional slip construction would further [**1090] congest navigation on the creek. We cannot say that a reasoning mind reasonably might not have accepted this [*400] evidence as adequate to support the conclusion that possible adverse effects of the additional construction outweighed the benefits from the project.  Therefore, we are of the opinion that[***30] there was substantial evidence in the record to support the Mayor and Aldermen's conclusions.  The circuit court plainly erred in substituting its judgment.

   Since the Mayor and Aldermen could consider the environmental effects of the proposed construction because there is no conflict between § 38 of the Annapolis City Charter, as amended in 1970, and Article 23A, § 2 (23A) of the Maryland Code, because the issue was fairly debatable, and because there was substantial evidence to support the Mayor and Aldermen's denial of the construction permits, we reverse the judgment of the Court of Special Appeals.

   Judgment of the Court of Special Appeals reversed; remanded to that court with instructions to reverse the decree of the Circuit Court for Anne Arundel County and to remand to that court with instructions to enter a decree consistent with the views expressed herein.

   Costs to be paid by appellees. 

CARL CLARK v. STATE OF MARYLAND; JOSEPH STUTZMAN v. STATE OFMARYLAND; ROGER E. PRITCHARD v. STATE OF MARYLAND 
Nos. 72, 74, 75, September Term, 1978
 
Court of Appeals of Maryland
 
284 Md. 260; 396 A.2d 243; 1979 Md. LEXIS 172

 January  5, 1979, Decided

   PRIOR HISTORY: [***1]  
(No. 72) Appeal from the Circuit Court for  Anne Arundel  County; Hopper, J., pursuant to certiorari to the Court of Special Appeals.

   (Nos. 74 and 75) Two appeals from the Circuit Court for Queen Anne's County; Turner, J, pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment in each of Clark v. State, No. 72, September Term, 1978; Stutzman v. State, No. 74, September Term, 1978; and Pritchard v. State, No. 75, September Term, 1978, affirmed.  Costs to be paid by each appellant in the amount chargeable to him.

CORE TERMS:  sentence, offenders, juvenile, equal protection, reasonable basis, classification, confinement, adult, youthful, three year, inmate, male, sentencing, confined, sentenced, maximum, space, common law, Uniform Criminal Extradition Act, Criminal Law, purely arbitrary, extradition, detainer, twenty-five, indictment, effective, unworthy, ill-will, assault, motive

COUNSEL: In No. 72, Thomas J. Saunders, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, on the brief, for appellant Carl Clark.

   In Nos. 74 & 75, John W. Sause, Jr., District Public Defender, with whom was Stefan R. Skipp, Assistant Public Defender, on the brief in No. 74, for appellants Joseph Stutzman and Roger E. Pritchard.

   F. Ford Loker, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.

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

OPINIONBY: ORTH
 
OPINION: [*262] [**245] In Maryland, it is a statutory felony for a person to escape from a place in this State in which he is legally detained or confined. The punishment upon conviction is confinement for whatever additional period, not exceeding ten years, as the court may adjudge, except that for escapes, not involving an assault, from the "Maryland Correctional Institution -- Hagerstown or the Maryland Correctional[***6] Training Center -- Hagerstown or any juvenile institution," the sentence may not exceed confinement for three years. n1 The sentence imposed shall be consecutive to the sentence under which the [*263] inmate was originally confined and may not be suspended.  Maryland Code (1957, 1976 Repl. Vol.) art. 27, § 139 (a). n2

n1 For ease of expression, this limitation on the sentence is referred to hereinafter as "the three year exception."

n2 To all intent and purpose this was the status of the law applicable to appellants here.  Acts 1975, ch. 280, effective 1 July 1975, divided § 139 of art. 27 into subsections.  The amendment made several changes in style but no change in the substance of the former provisions comprising the new § (a).  "Any juvenile institution" was added to the places of detention in the three year exception by Acts 1975, ch. 825, effective 1 July 1975.  Acts 1978, ch. 188, approved 2 May 1978 and effective from date of passage, deleted the two Hagerstown facilities from the three year exception.

[***7]

   Each of the appellants escaped from a place in this State in which he was legally confined. Carl Clark escaped from the Maryland Correctional Camp Center in Anne Arundel County on 19 August 1977.  Joseph Stutzman and Roger E. Pritchard escaped from the Eastern Correctional Camp in Queen Anne's County, Stutzman on 1 June 1975 and Pritchard on 21 June 1976.  Each of appellants was duly charged, convicted and sentenced to the jurisdiction of the Department of Correction -- Clark for three months and Stutzman and Pritchard for eighteen months, the sentences to run consecutively to the sentences then being served. Each noted an appeal to the Court of Special Appeals.  We ordered the issuance of writs of certiorari before decision by that court.

   I

   Below, each of appellants sought dismissal of the indictment returned against him on the ground that § 139 (a) of art. 27 was unconstitutional as denying equal protection of the laws. n3 Each motion to that end was denied by the respective trial court.  The appellants pursued the contention in their briefs on appeal, but in oral argument before us they abandoned the position that the whole of § 139 (a) was unconstitutional [**246] and[***8] focused their attack on the three year exception. n4

 n3 No State shall "deny to any person within its jurisdiction the equal protection of the laws." U. S. Const., amend. XIV, § 1.

n4 Appellants indicated that this tactic was taken to obviate the possibility that if the entire escape statute was voided the common law might be resurrected to their detriment.  The General Assembly created a statutory crime of escape which was analogous to the common law offense.  Baker v. State, 205 Md. 42, 45, 106 A. 2d 692 (1954); State v. Magliano, 7 Md. App. 286, 288, 255 A. 2d 470 (1969). The common law and statutory history of the crime was traced in Fabian v. State, 3 Md. App. 270, 274-279, 239 A. 2d 100 (1968). See Stewart v. State, 275 Md. 258, 261-262, 340 A. 2d 290 (1975). At common law there was no maximum penalty for escape or prison breach, and in several cases the death penalty was applied.  Fabian at 277, n. 2.

   [*264] (1)

   Essential to the position that only the three year exception offends the [***9]constitutional guarantee is that this part of the statute is severable, and appellants apparently so concede.  In any event, we think it clear that it is severable.  The first statute proscribing escape was passed on 6 January 1810.  Acts 1809, ch. 138, § 32.  A lesser penalty for escapes under certain circumstances first appeared by amendment over a hundred and fifty years later.  Acts 1963, ch. 157.  See State v. Schuller, 280 Md. 305, 318-321, 372 A. 2d 1076 (1977); Davidson v. Miller, 276 Md. 54, 83, 344 A. 2d 422 (1975); Shell Oil Co. v. Supervisor, 276 Md. 36, 48, 343 A. 2d 521 (1975). Compare Wheeler v. State, 281 Md. 593, 607-609, 380 A. 2d 1052 (1977), cert. denied, 435 U.S. 997 (1978).

   We have serious doubt that appellants have standing to contest the constitutionality only of the three year exception.  "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (emphasis added).  See Baker v. Carr, 369 U.S. 186, 208, 82 S. Ct. 691 (1962); Barrows v. Jackson, 346 U.S. 249, 255, 73 S. Ct. 1031[***10] (1953). Thus, the general rule is that a person may only assert his own constitutional rights or immunities.  McGowan v. Maryland, 366 U.S. 420, 429, 81 S. Ct. 1101 (1961). "[O]ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519 (1960). We observed in State v. Cherry, 224 Md. 144, 155, 167 A. 2d 328 (1961) that although as a general rule in criminal prosecutions the accused has the right to assert the invalidity of the law under which he is being prosecuted, he must show that his rights are adversely affected by the statute and more [*265] particularly that his rights are thus affected by the particular feature of the statute alleged to be in conflict with the constitution, it not being sufficient that the statute may impair the rights of others.  To like effect, see Brown v. State, 177 Md. 321, 327, 9 A. 2d 209 (1939); State v. Case, 132 Md. 269, 272, 103 A. 569 (1918); Crouse v. State, 130 Md. 364, 371, [***11] 100 A. 361 (1917); Parker v. State, 99 Md. 189, 200, 57 A. 677 (1904); Hughes v. State, 14 Md. App. 497, 501, 287 A. 2d 299, cert. denied, 265 Md. 739, cert. denied, 409 U.S. 1025 (1972); Lashley v. State, 10 Md. App. 136, 143-144, 268 A. 2d 502, cert. denied, 259 Md. 733 (1970), appeal dismissed, cert. denied, 402 U.S. 991 (1971). In other words, a person challenging the validity of a statute on equal protection grounds "cannot rely on theoretical inequalities, or such as do not affect him, but must show that he is himself affected unfavorably by the discrimination of which he complains." Roberts & Schaefer Co. v. Emmerson, 271 U.S. 50, 55, 46 S. Ct. 375 (1926).

   None of the appellants received a sentence which imposed confinement exceeding three years.  It is not enough that each of them might have been sentenced to a term greater than the maximum permitted with [**247] regard to an escape from one of the Hagerstown facilities or a juvenile institution. None, in fact, were so punished.  Accepting that the statute establishes a favored class of those who escape from one of the Hagerstown facilities or any juvenile institution, none of appellants[***12] received a sentence greater than that authorized for such class, so none of them suffered an actual injury. Appellants seek only to strike down a part of the statute which has not affected them adversely, and it may well be that they have no standing to do so. n5

n5 In State v. Rogers, 40 Md. App. 573, 392 A. 2d 1186 (1978) and Carter v. State, 38 Md. App. 400, 381 A. 2d 309, cert. denied, 282 Md. 730 (1978), the Court of Special Appeals held that offenders who received a sentence of three years or less had no standing to attack the constitutionality on equal protection grounds of the escape statute in its entirety.  The cases before us are not in this posture, and our doubt that appellants have standing to attack the constitutionality of the three year exception on equal protection grounds because they did not receive a sentence of more than three years is not to be taken as any indication whatsoever of how we would rule had they persisted in their challenge to the entire statute.  We expressly leave open the standing of a person receiving a sentence of three years or less to attack the whole of § 139 (a) on equal protection grounds.

[***13]

   [*266] (2)

   Assuming that appellants have standing to pursue their challenge to the constitutionality of the three year exception, they do not prevail.  We see no denial of equal protection of the laws arising from it.

   The standard of review applicable here is the "rational basis" test, that is, whether "the classification challenged be rationally related to a legitimate state interest." City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513 (1976). We pointed out in Montgomery Co. v. Fields Road, 282 Md. 575, 579-580, 386 A. 2d 344 (1978):
  
The basic rules which guide a court in applying this test were set down over sixty-five years ago by Mr. Justice Van Devanter for the Supreme Court in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S. Ct. 337, 340, 55 L. Ed. 369 (1911):

   "The rules by which this [equal protection] contention must be tested, as is shown by repeated decisions of this court, are these: 1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify . . . but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is[***14] without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality.  3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.  4. One who assails the classification in such a law must carry the [*267]burden of showing that it does not rest on any reasonable basis, but is essentially arbitrary."
 
See cases cited in Fields Road at 580.  We put it concisely in Tatelbaum v. Pantex Mfg. Corp., 204 Md. 360, 370-371, 104 A. 2d 813 (1954), citing Lindsley and Salsburg v. State, 201 Md. 212, 94 A. 2d 280 (1953), aff'd, 346 U.S. 545 (1954):
 
[A] classification made by a Legislature is presumed to be reasonable in the absence of clear and convincing indications to the contrary, and the person who assails it has the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.[***15]
 
We made clear in Wheeler, 281 Md. 593, that in the light of our prior decisions and especially Aero Motors v. Adm'r, M.V.A., 274 Md. 567, 337 A. 2d 685 (1975); Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496, 312 A. 2d 216 (1973); Adm'r, Motor Veh. Adm. v. Vogt, 267 Md. 660, 299 A. 2d 1 (1973); and Tatelbaum, that the [**248] principles enunciated in Lindsley have lost none of their vitality.

   In applying the rational basis test to the three year exception, we look first to the nature of the institutions designated in the exception.  As we have indicated, the exception first appeared in the escape statute by Acts 1963, ch. 157, in this language:

   However, for escapes from the Reformatory for Males which have not involved an assault, the sentence shall not exceed confinement for three years.  [Md. Code (1957, 1967 Repl. Vol.) art. 27, § 139.]
 
A new reformatory had been established by Acts 1931, ch. 366.  It was to be located in Washington County and known as the Maryland State Penal Farm.  Its name was changed to the "Maryland State Reformatory for Males" by Acts 1945, ch. 519, which provided that it "shall be a place of confinement and[***16] training for male offenders from sixteen (16) years to twenty-five (25) years of age, both inclusive." The name of [*268] the facility was again changed by Acts 1964, ch. 45, which declared that it be called the "Maryland Correctional Institution -- Hagerstown." Both it and the Maryland Correctional Training Center -- Hagerstown are now under the Division of Correction.  Code (1957, 1976 Repl. Vol.) art. 27, § 689 (d) and (d-1).  The law relating to the Maryland Correctional Institution -- Hagerstown is set out in § 689 (d):

   The Maryland Correctional Institution -- Hagerstown, . . . is a place of confinement and training for male offenders from sixteen (16) to twenty-five (25) years of age, both inclusive.  In those cases in which the judge of the Supreme Bench of Baltimore City, who is assigned to exercise jurisdiction in juvenile causes, may waive jurisdiction and order a minor under the age of sixteen, and the judge of any circuit court in any county exercising jurisdiction in juvenile causes, may waive jurisdiction and order a minor under the age of eighteen, to be held for action under the regular procedure that would follow if such act or acts had been committed by[***17] an adult, then and in that event the judge presiding in the criminal courts of Baltimore City and the judge of the circuit court of any county upon assuming jurisdiction in such case and upon conviction may commit the minor to the Maryland Correctional Institution -- Hagerstown regardless of age.  The courts of this State, instead of imposing sentences of fixed duration upon male offenders included within this subsection may sentence them to the Maryland Correctional Institution -- Hagerstown for an indeterminate period of time which may not exceed the maximum term of imprisonment provided by statute for the offenses of which said person was convicted; and in the event no penalty is prescribed by statute for said offenses then the court shall prescribe the maximum term of imprisonment; but nothing in this sentence applies to any case in which the sentence is life imprisonment or to the service of time for nonpayment of a fine.
 
[*269] See Acts 1947, ch. 924; Acts 1951, ch. 13; Acts 1964, ch. 45; Acts 1966, ch. 385.

   Looking at the three year exception provision in § 139 (a) with the provisions of § 689, we see no constitutional infirmity with respect to equal protection. [***18] The three year exception encompassed institutions for the confinement of youthful male offenders, i.e., those from sixteen to twenty-five years of age (the two Hagerstown facilities) and juvenile offenders (any juvenile institution).  It is obvious that the Legislature believed that such offenders would ordinarily not be hardened or dangerous criminals and were better confined in institutions more adapted to their rehabilitation than other places of confinement where they would intermingle with older, seasoned and dangerous criminals. n6 We find it plain upon application of the rules by which the equal protection contention must be tested to the statutory scheme evident from [**249] § 139 (a) and § 689 that the difference in permissible punishment between escapers from the institutions specified in the challenged exception and escapers from other places of confinement is sufficiently related to a legitimate state interest so as not to be without any reasonable basis and purely arbitrary. Accord, Alex v. State, 484 P. 2d 677 (Alaska 1971); People v. Gardner, 15 Ill. App. 3d 255, 304 N.E.2d 125 (1973); State v. Pebworth, 260 La. 647, 257 So. 2d 136 (1972).

n6 We observe that the Legislature was careful to exclude from the exception those offenders whose escape from a designated institution involves an assault. If it does, the escaper is liable to a full ten years confinement for the escape, even though he be a "youth" or a juvenile.

[***19]

   However, our conclusion that the three year exception in § 139 (a) when viewed with § 689 has no equal protection infirmity does not furnish a complete resolution of the issue.  Imposed over § 689 is the mandate that offenders are to be sentenced to the jurisdiction of the Division of Correction instead of to institutions.  This requirement was first established by Acts 1967, ch. 695, and, as now in effect, appears in Md. Code (1957, 1976 Repl. Vol.) art. 27, § 690.  The law is applicable to all judges exercising criminal jurisdiction, [*270]§ 690 (a), when a sentence of three months or more is imposed, subsection (c). n7 Subsection (b) reads in relevant part:
 
Notwithstanding any of the provisions of this article or any other law to the contrary, on and after June 1, 1967, judges, in the sentencing of convicted persons (1) for any offense for which the provisions of this article or any other law requires the imprisonment to be served at any one of those institutions enumerated in § 689 of this article or (2) any offense for which prior to June 1, 1967, the sentence was made for whatever reason to one of those institutions in § 689, shall in all such cases sentence[***20] such persons to the jurisdiction of the Department of Correction.  All such persons shall be committed to the custody of the Commissioner of Correction and delivered to him for imprisonment.  Thereafter all such persons shall be held confined in, assigned to or transferred to such of the institutions and facilities under the jurisdiction of the Department as the Department from time to time may order, including State Police barracks where such use is convenient and practical.
 
This provokes inquiry of the use the Division of Correction is making of the Hagerstown facilities. n8 In each case sub judice, the testimony of Howard Lyles, given on 24 February 1978 at the trial of State v. Rogers, et al. in the Circuit Court for Anne Arundel County, which involved the issue here before us, was before the trial court. n9 Lyles testified that he had worked for the Division of Correction, under its various designations, for twenty years.  Since 9 November 1977, he has been the Assistant Commissioner of Operations, and for [*271]the preceding thirty-four months, he was "acting" in that capacity. The duties and responsibilities of the Assistant Commissioner of Operations go to[***21] the administration of the Division, including classification, social services, security and general operation of the facilities.  He described the Hagerstown facilities as a complex of two major correctional institutions. Both are medium security, meaning that the inmates need armed control but sentences are shorter -- up to twenty years -- than those being served by inmates in a maximum security institution. n10 Predominantly youthful offenders, [**250] namely those up to age 22, are housed in the Maryland Correctional Institution -- Hagerstown (MCI) and the Maryland Correctional Training Center -- Hagerstown (MCTC).  MCI is the older institution, and its inmates, many of whom are first offenders or parole violators, usually are serving longer sentences than those persons who are confined in MCTC.  The Maryland Correctional Institution -- Hagerstown was originally built for young offenders above juvenile age but not old enough to be placed in an adult institution.  It was a "reformatory" and not classified as a juvenile institution.  There are some adults being placed there for the reason that there is not space in the adult facilities.  There are also some exceptional cases, [***22] such as inmates needing special protective custody, for which the House of Correction or the Penitentiary were not appropriate.  Lyles made clear that the Hagerstown facilities had not become a full part of the adult system.  They are, in general, being [*272] operated in keeping with the original purpose -- "the philosophy is there." "[P]redominantly the age groups are there.  . . . And the only diversion, more or less, from the original establishment of the place, or the philosophy of why it was established is now due to space." It was Lyles' opinion that about twenty-five percent of the inmates were there because of lack of space. When room is available in other institutions, those who are in the Hagerstown complex because of space problems in other institutions are moved. "If space was available [elsewhere], then we would revert back to having . . . all of the Hagerstown complex being for young offenders."

n7 Under Acts 1967, ch. 695, § 689 (c) included the provision: "Nothing in this section shall prevent any judge from committing any minor to any facility to which minors may be committed under the law as it existed prior to June 1, 1967." Acts 1975, ch. 854 deleted this provision.

[***23] 

n8 As we have indicated, note 2, supra, Acts 1978, ch. 188, effective 2 May 1978, removed the two Hagerstown facilities from the three year exception in § 139 (a), leaving only escapes from juvenile institutions subject to the penalty limitation.

n9 See State v. Rogers, 40 Md. App. 573, 392 A. 2d 1186 (1978). Petition for a writ of certiorari to the Court of Special Appeals was filed in the Court of Appeals on 19 December 1978.  No action has as yet been taken thereon.

n10 Lyles testified that there was one maximum security institution, the Maryland Penitentiary.  It houses those who are believed to be a very serious danger to society and those with strong impulses for escape.  Generally the inmates have received sentences longer than twenty years.  There are only a small number of youthful and juvenile offenders -- only those who have been "management problems" at the Hagerstown institutions.

   According to Lyles, the Maryland House of Correction is a medium security institution.  It is designed for adults but there are youthful offenders there, returned from escapes.  However, youthful offenders are not "programed" there unless there are circumstances prohibiting their being housed at the Hagerstown complex.

   The Maryland Correctional Camp Center is a minimum security institution.  It is designed to accept adults or young offenders who have progressed through the system and merit being placed where they can participate in community programs and make progress toward release.  It does, in fact, house both adult and youthful offenders who have been found not to need close supervision and armed control.

[***24]

   (3)

   Under the Lindsley guidelines, the equal protection clause admits the exercise of a wide scope of discretion in the state to classify, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary; a classification having some reasonable basis does not offend equal protection merely because it is not made with mathematical nicety or because in practice it results in some inequality; and if any state of facts reasonably can be conceived that would sustain a classification, the existence of that state of facts at the time the law was enacted must be assumed.  Applying these rules, there is no doubt that the evidence adduced through the testimony of Lyles demonstrated that there was a "reasonable basis" for distinguishing between escapes from the Hagerstown facilities and juvenile institutions, which did not involve an assault, and escapes from other places of confinement. We do not find Lyles' testimony vague and of dubious value merely because he did not define "adult" as used by him.  The sum of his testimony was that the Hagerstown complex was being used substantially as spelled out in § 689 (a).  There was no evidence that any[***25] juvenile institution was being misused.

   In short, there was no clear and convincing indication contrary to the presumption that the classification made by the Legislature was reasonable. Appellants failed to carry the burden of showing that the three year exception which they [*273] assailed, did not rest on a reasonable basis, but was essentially arbitrary.  We hold that the trial courts did not err in denying the motions to dismiss the indictments in the context of equal protection of the laws.

   II

   Pritchard, upon his conviction of escape, was subject to a sentence of confinement [**251] for whatever additional period, not exceeding ten years, as the court may adjudge.  He was sentenced to a term of eighteen months.
 
[I]n this State, the awesome responsibility of imposing sentence is within the exclusive domain of the trial judge (subject to modification pursuant to the review of criminal sentence provision contained in Maryland Code (1957, 1971 Repl. Vol., 1974 Cum. Supp.) Art. 27, § 645JA-645JG), and thus his determination in this regard cannot be reevaluated upon appellate review unless either it is based upon an impermissible consideration, Costello v. [***26]  State, 237 Md. 464, 469, 206 A. 2d 812 (1965); Gleaton v. State, 235 Md. 271, 277, 201 A. 2d 353 (1964); Mitchell v. State, 82 Md. 527, 534, 34 A. 246 (1896), or is passed in violation of statute, State Ex Rel. Sonner v. Shearin, 272 Md. 502, 325 A. 2d 573 (1974). [Johnson v. State, 274 Md. 536, 538, 336 A. 2d 113 (1975).]
 
Since the term imposed in Pritchard's case was well within the longevity limits set by the statute, it is not in violation of the duration of imprisonment allowable by law.  Pritchard acknowledges the general rule that "[w]here punishment is prescribed by statute and the sentence does not exceed statutory limits, [an appellate] court ordinarily cannot review it even on direct appeal." James v. State, 242 Md. 424, 429-430, 219 A. 2d 17 (1966). The narrow exception which this Court has recognized is where it appears that the sentence is dictated not by a sense of public duty, but by passion, prejudice, ill-will or any other unworthy motive, such a sentence will be reviewed by the appellate court.  [*274] Impermissible considerations in imposing sentence may be indicated where the punishment is grossly and inordinately disproportionate [***27]to the offense, id. at 430; Swan v. State, 200 Md. 420, 425, 90 A. 2d 690 (1952); Reid v. State, 200 Md. 89, 93, 88 A. 2d 478, cert. denied, 344 U.S. 848 (1952), or from remarks of the sentencing judge, Johnson, 274 Md. at 538-540; Mahoney v. State, 13 Md. App. 105, 113, 281 A. 2d 421 (1971), cert. denied, 264 Md. 750, cert. denied, 409 U.S. 978 (1972). Pritchard alleges that remarks of the sentencing judge immediately prior to sentencing showed that the punishment imposed was improperly motivated.  After the court had rendered a verdict of guilty Pritchard was called by his counsel and testified under oath in mitigation of punishment.  Md. Rule 772 c.  It was brought out that he had been unable to keep a job and had difficulty obtaining employment -- "they just kept on turning me down for work." He complained about his treatment by various authorities -- "I think they have taken grudges against me" -- and that he was shifted around from place to place -- "Well I made my effort to get the jobs and go to work but everytime I did they shot me down and sent me somewhere else." He admitted that he had experimented with alcohol and drugs but denied that he [***28]had ever been dependent upon them or sold them, although there had been a charge placed against him of conspiring to violate the drug laws.  The comments of the judge to which Pritchard points were made in light of this testimony.  The court inquired of Pritchard if he read newspapers and magazines (Pritchard said he did), apparently with reference to Charles Manson, for it then asked if he had ever heard of Manson (Pritchard said he had).  The court then wanted to know if there was any reason why Pritchard had "that beard and that long hair (Pritchard said there was no reason for it).  The court then asked Pritchard: "Don't you think you look something like [Manson]?" Pritchard replied: "No, sir." Whereupon the court said:

   "You don't, well I can notice a resemblance and I think it might have something to do with your inability to get a job or get along with some of these people."
 
[*275] In the frame of reference in which this remark was made, we do not believe that it indicated that the sentence imposed was impermissibly motivated. The court was simply suggesting a possible reason why Pritchard had difficulty obtaining employment and keeping a job, and why he did[***29] not [**252]enjoy a better relationship with the authorities.  Later the court said to Pritchard: "Now, as I said before, maybe your appearance hasn't helped you too much because there are a lot of employers that wouldn't employ people that look like Manson.  Now you better think about that.  Of course, you can grow hair down to your waist as far as the law is concerned."

   Pritchard also complains about the court's inquiry and comments concerning his use of drugs.  The inquiry and comments were no more than a reasonable follow-up to Pritchard's testimony on the subject, and we do not deem them to be any indication of an impermissible consideration in the sentencing.

   Pritchard further observes that the court "erroneously suggested" that he had been charged with taking an automobile.  This matter was promptly cleared up by the prosecutor to the court's satisfaction, and we believe that it had no significance in the court's determination of punishment.

   We think that the court's concluding remarks to Pritchard demonstrated its fair attitude and lack of any unworthy motive:

   Now you realize you have now facing you almost three years before you get a sentence here.  You have started[***30] out on the wrong foot, for the balance of your time.  I don't think you are violent, I am sure that you are not, there is nothing in your record before the Court to indicate that but it's just an indifference to authority that's getting you in trouble.  So have the record show, as a punishment for your offense, you will be committed to the Commissioner of Correction for a period of eighteen months.  Under the law it has to be consecutive to the balance of your sentence. Now good luck to you.
 
[*276] The short of it is that nothing in the questions and comments of the trial court show that the imposition of the sentence of only eighteen months out of a permissible ten years was dictated, not by a sense of public duty, but by passion, prejudice, ill-will or any other unworthy motive.

   III

   Stutzman suggests that the trial court did not have jurisdiction to try and to sentence him because he was returned to Maryland "without sanction of either the Interstate Agreement on Detainers or the Uniform Criminal Extradition Act."

   A detainer was lodged against Stutzman by Maryland while he was incarcerated in the Oregon State Penitentiary after his escape from legal confinement in [***31]an institution of this State.  He wrote a letter to the Investigations Division of the Maryland State Police.  The docket entries of his case show that the letter was filed in the Circuit Court for Queen Anne's County and a copy mailed to the State's Attorney.  It was admitted in evidence at his trial.  In the letter, Stutzman said:
 
I wish for you to come get me and give me my time, bring me back here to finish my Oregon sentence, and if it exceeds my Oregon sentence, come get me again to finish my sentence in Maryland.
 
I realize it will cost the State of Maryland a lot of money, but if you want to try me come and get it over with as required by the law.
 
Upon hearing, the trial court held that Stutzman was "here legally" and denied the motion to dismiss the indictment which Stutzman had made on the ground of non-compliance with the "Extradition Act."

   Stutzman's request for final disposition was a waiver of extradition. Code (1957, 1976 Repl. Vol.) art. 27, § 616D (e) of the Interstate Agreement on Detainers. The prosecutor complied with Stutzman's request, liberally construing the Interstate Agreement so as to effectuate its purposes.  § 616J. Stutzman was [***32] returned to Maryland and tried within [*277] the time prescribed by § 616D (a).  The contention that the trial was "without sanction of either the Interstate Agreement on Detainers or the Uniform Criminal Extradition Act" is without merit.

    In any event, Stutzman to all intent and purpose conceded that he was properly before the court.  He noted in his [**253] brief that he was constrained to recognize the existence of the holdings of the Supreme Court of the United States, this Court and the Court of Special Appeals to the effect that even a forcible return of an accused to a state to stand trial on a criminal charge did not divest the court of jurisdiction.  In Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, reh. denied, 343 U.S. 937 (1952), the Supreme Court said that it "has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S. Ct. 225, 229, 30 L. Ed. 421, that the power of the court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.'" The law of Maryland is not to the contrary.
 
Authority to sentence at all is incident[***33] to and a consequence of the power to try an accused, and the right to try is founded on the fact that the crime was committed within the jurisdiction of the Court and upon the further fact that the prisoner after being indicted is present in person before the Court during the trial.  It is not material how or by what means he was brought into Court, . . . .  [Rigor v. The State, 101 Md. 465, 470, 61 A. 631 (1905)].
 
In Austin v. Director, 237 Md. 314, 206 A. 2d 145 (1965) we said:
 
The fact that petitioner was forcibly returned from Pennsylvania by authorities to stand trial in Maryland where his criminal conduct took place and where he had been indicted prior to his flight is not of itself in a criminal proceeding legally significant.  [Id. at 317-318].
 
[*278] Accord, Bell v. Warden, 215 Md. 614, 615-616, 137 A. 2d 118 (1957); McGuire v. State, 200 Md. 601, 609, 92 A. 2d 582 (1952), cert. denied, 344 U.S. 928 (1953); Crowley v. State, 25 Md. App. 417, 423-424, 334 A. 2d 557 (1975); Swann v. State, 7 Md. App. 309, 310-311, 255 A. 2d 457 (1969), cert. denied, 256 Md. 748 (1970).

   We hold that the trial court did not[***34] err in denying the motion to dismiss with respect to the ground that Stutzman had been illegally returned to Maryland.

   Judgment in each of Clark v. State, No. 72, September Term, 1978; Stutzman v. State, No. 74, September Term, 1978; and Pritchard v. State, No. 75, September Term, 1978, affirmed.

   Costs to be paid by each appellant in the amount chargeable to him. 

CATHERINE A. GLASS v. KENNETH E. GLASS 
No. 9, September Term, 1978
 
Court of Appeals of Maryland
 
284 Md. 169; 395 A.2d 485; 1978 Md. LEXIS 455

 December  20, 1978, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Childs, J.

DISPOSITION: Case remanded without affirmance or reversal to the Court of Special Appeals with instruction to vacate the decree of the Circuit Court for Anne Arundel County dated April 14, 1977, and remand the case to that court for further proceedings.  Costs to be paid by the petitioner.

CORE TERMS:  decree pro confesso, default, courtroom, final decree, divorce, decree, divorce decree, interrogatories, appearance, Sailors Civil Relief Act, divorce action, armed forces, pro confesso, ex parte, announcement, countenanced, irregularity, conform, well-established, expeditious, affirmance, reversal, sitting, vacate, thoro, mensa

COUNSEL: Wallace Dann for appellant.

   No brief filed by appellee.

   Mary S. Elcano, with whom were Eric Peltosalo, John C. Eidleman and Richard F. Pecora on the brief, for Legal Aid Bureau, Inc., amicus curiae.

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

OPINIONBY: DIGGES

OPINION: [*170] [**486] We granted certiorari in this divorce action to determine whether the Court of Special Appeals was correct in concluding that it was reversible error to proceed against a member of the armed forces of the United States as a defaulting defendant without appointing counsel to represent him under the provisions of the federal Soldiers and Sailors Civil Relief Act. 50 U.S.C. app. § 520(1) (1970).  Because an examination of the circuit court proceedings in this case reveals that following service of process on the husband-defendant there was neither the filing of an initial pleading by him, Maryland Rule 307, nor the entry of a decree pro confesso, Rules S73 and 310 b, either of which was required before the trial court was authorized to sign [***3]a final divorce decree, we will direct a vacation of the decree entered here without considering the import of the Civil Relief Act.

   What happened may be briefly stated.  On October 29, 1976, petitioner Catherine A. Glass, claiming she was abandoned and deserted by her husband, filed a complaint in the Circuit Court for Anne Arundel County seeking an a vinculo matrimonii divorce or, in the alternative, one a mensa et thoro from respondent Kenneth E. Glass.  The bill of complaint, with its accompanying interrogatories, was served on the husband on November 8, 1976.  When Mr. Glass did not file an answer or other responsive pleading to the command of either the subpoena or the interrogatories, his wife filed a "Petition for Hearing" alleging that, although the respondent was "a member of the United States Army," he was "well able to conduct a defense of this cause of action" and requested that the court set a date for a hearing on the matters raised by the complaint. n1 On January 28, 1977, the circuit court set a hearing on all "open matters" in the case for April 14 of that year at 1:30 p.m. In the interval, specifically on March 3, the wife, because of the respondent's failure to [***4]answer the interrogatories, filed a motion for sanctions pursuant to Rule 422 c by which she sought a decree pro confesso and other [*171] relief.  Although served on March 10 with a copy of this motion, the husband made no response to it.  At the hearing conducted on April 14, without the husband being present either in person or through counsel, the trial judge announced at the conclusion of the testimony produced by the wife that "Mrs. Glass is entitled to a decree pro confesso and a final decree and [I] will sign the decree as of this date." n2 Following this statement, but without a decree pro confesso being entered, the trial judge proceeded to sign a final decree that, in addition to granting Mrs. Glass an a mensa et thoro divorce and an award of $200 per month as permanent alimony, also provided that she alone owned certain enumerated personal property, and directed that the husband pay the costs of the proceedings [**487] as well as $750 compensation to the wife's attorney.  The husband noted a timely appeal from that decree.

n1 The record discloses that throughout the entire course of the proceedings in the circuit court the husband was a member of the United States armed forces, stationed at Ft. George G. Meade, Maryland, which is located about twenty miles from the Anne Arundel County courthouse.

[***5] 

n2 The record indicates that just after the trial judge informed Mr. Dann, Mrs. Glass' attorney, that he would sign the divorce decree, Mr. Glass appeared in the courtroom and the following colloquy took place:
 
COURT: . . . Let the record show that the defendant just walked into the courtroom. The case started at 1:30.  It is now 2:23 p.m. Do you want to inform the Court why you're almost an hour late?
MR. GLASS: Yes Sir.  I told them downstairs . . . I asked them what courtroom it's in and they told me courtroom three, sir.  And I've been sitting there.
COURT: Courtroom three?  You were called in the hall at 1:35 . . . by the Clerk.
MR. GLASS: I was sitting inside the courtroom, sir.
COURT: Mr. Dann, if you will conform a copy of this and give it to Mr. Glass.
MR. DANN: Alright, sir.  I have two extra copies.  I'll take it to the Clerk and have copies made . . . true tested and certified.
COURT: Alright.
 
The record states that at this point the hearing ended.

   Initially we mention "that in equity the pleadings and definitive actions of the Chancellor must be done[***6] by written documents duly filed in the equity case," Eggert v. Montgomery Co. Council, 263 Md. 243, 246, 282 A. 2d 474, 476 (1971) (emphasis in original); accord, e.g., Tvardek v. Tvardek, 257 Md. 88, 99, 261 A. 2d 762, 768 (1970); Sellman v. Sellman, 238 Md. 615, 618, 209 A. 2d 61, 62 (1965) (per curiam); E. Miller, Equity Procedure § 284, at 354 (1897), and, therefore, the court's announcement here that the wife was [*172] entitled to a decree pro confesso was not such a decree because it did not conform with the well-established equity practice in this State.  Thus, no decree pro confesso was ever entered in this divorce action.

   The Maryland Rules of Procedure that require, before proceeding upon default, the entry of a decree pro confesso, e.g., Rules S73, 310 b, 422 b and c, 611, 675, as well as their statutory predecessors, are based on chapter 161 of the Acts of 1820.  The object of these rules is
 
to provide a just and reasonably expeditious mode of obviating the delays and difficulties to which plaintiffs were subjected by defendants disobeying the mandates of the court requiring them to appear and answer bills filed against them.  The[***7] design was, in the event of the defendant's continuing disobedience to the order of the court, to give to the plaintiff a remedy against him, as nearly as may be, as expeditious and effectual as if an appearance and answer had in due time followed the order of the court.  The [rules are] a means of relief against the delay and neglect of defendants.  [E. Miller, supra, § 272, at 338-39 (footnotes omitted).]
 
Thus, a decree pro confesso is a tool by which in default of appearance or in default of answer, plea, or demurrer after appearance, a plaintiff, within the time allowed, is enabled to proceed ex parte against a neglectful defendant.

   Rule S73 governs default by the defendant in divorce actions and provides: "Where a defendant is in default in proceedings for divorce, annulment, or alimony a decree pro confesso may be entered." Likewise, Rule 310 b, which pertains generally to equity actions when the party against whom a claim is asserted is in default, reads: "If a party against whom a claim is asserted is in default for failure to comply with the requirements as to time allowed for pleading, unless the time be enlarged by the court for good cause shown, . [***8]. . the bill may be taken pro confesso in a proceeding in equity, on motion of the adverse party, and thereupon the [*173] case shall proceed ex parte as against such party." n3 In light of these rules, it is plain that to proceed to obtain a final decree of divorce without the entry of a decree pro confesso when the defendant is in default of an answer or other appropriate response is an irregularity that is not countenanced by the precise rubrics set out in these rules.

n3 Rule 675 a 1 provides that a final decree may be entered only "after the expiration of thirty days from the entry of the order of pro confesso . . . ."

   If the court has jurisdiction over the subject matter and acquires jurisdiction over the parties, the failure to obtain a decree pro confesso is ordinarily not such an irregularity that it will authorize the vitiating of a final decree that has become enrolled.  See Bailey v. Jones, 107 Md. 405, 408-09, 68 A. 881, 882-83 (1908).

   Accordingly, we will remand the case without[***9] affirmance or reversal to the Court of Special Appeals with instructions that it vacate the final divorce decree entered by the Circuit Court for Anne Arundel County and remand the case to that court for further proceedings. n4

n4 There is an indication in the record that respondent Kenneth E. Glass was discharged from military service on January 13, 1978.  If this be true, the issue pertaining to the Soldiers and Sailors Civil Relief Act is now moot and the matter may proceed in the normal manner following a proper response to the complaint in the circuit court or, in default thereof, proceed to a conclusion after the filing of a decree pro confesso.

   Case remanded without affirmance or reversal to the Court of Special Appeals with instruction to vacate the decree of the Circuit Court for Anne Arundel County dated April 14, 1977, and remand the case to that court for further proceedings.

   Costs to be paid by the petitioner. 

STATE OF MARYLAND v. HARRY PAUL BRYAN, JR. 
No. 28, September Term, 1978
 
Court of Appeals of Maryland
 
284 Md. 152; 395 A.2d 475; 1978 Md. LEXIS 453

 December  19, 1978, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Williams, J.

DISPOSITION: Judgment of the Court of Special Appeals affirmed with respect to the reversal of the judgment of the Circuit Court for Anne Arundel County; case remanded to the Court of Special Appeals with direction to remand to the Circuit Court for Anne Arundel County for a new hearing in accordance with this opinion; costs to be paid by Anne Arundel County.

CORE TERMS:  probation, appearance, waived, sentence, probationer, waive counsel, probation revocation hearing, affirmatively, revocation of probation, condition of probation, prescribed, effective, ambit, assistance of counsel, reversible error, financially, neglecting, hat, criminal prosecution, appointed counsel, waiver of counsel, original sentence, appointment, suspended, mandatory, revoked, Maryland Rules of Procedure, probation revocation, constitutional rights, charging document

COUNSEL: Ray E. Stokes, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellant.

   Nancy Louise Cook, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, on the brief, for appellee.

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

OPINIONBY: ORTH

OPINION: [*153] [**476] When an accused is convicted of a crime, and sentence is imposed, the court having jurisdiction may suspend the execution of the sentence or part of it, and place the defendant upon probation upon such terms and conditions as it deems proper.  Maryland Code (1957, 1976 Repl. Vol.) art. 27, § 641A.  Thereafter, on the motion of the State's Attorney or on its own order, the court may hold a hearing to determine whether any condition of probation has been violated.  Maryland Rule 775 c. n1 If, upon hearing, the court determines that the probationer has violated any condition of probation, it "may proceed to[***3] sentence the said person." Code, (1957, 1976 Repl. Vol.) art. 27, § 642. n2

n1 The Court of Appeals by Order dated 31 January 1977, approved and adopted, effective 1 July 1977, a revision of Chapter 700 of the Maryland Rules of Procedure. The Order provided that the new rules shall "apply to all proceedings commenced on or after 1 July 1977, and insofar as practicable, to all proceedings then pending." There was no old rule comparable to new Rule 775, but subsection c thereof reflected the practice which had been generally followed.

n2 The court had no power under that statute to change a sentence that had been imposed and suspended upon conditional probation. When a condition of probation was found to have been violated, the suspension could be stricken, probation revoked and the sentence originally prescribed was to be executed. Knight v. State, 7 Md. App. 313, 324-325, 255 A. 2d 441 (1969). See Costello v. State, 240 Md. 164, 213 A. 2d 739 (1965). Acts 1978, ch. 626, effective 1 July 1978, authorized the court to sentence the probationer "to serve the period of imprisonment prescribed in the original sentence or any portion thereof.  . . ." Code (1957, 1976 Repl. Vol., 1978 Cum. Supp.) art. 27, § 642.

[***4]

   On 25 August 1976 in the Circuit Court for Anne Arundel County, Harry Paul Bryan, Jr. was convicted by the court upon [**477] his plea of guilty of robbery with a deadly weapon.  On 14 October 1976 he was sentenced to imprisonment for two years with credit given for seventy-two days incarceration. The balance of the prison term was suspended, and he was placed on probation for two years upon specified conditions.  On 25 April 1977, the Division of Parole and Probation requested the court to issue a warrant, alleging that Bryan had violated conditions of probation. A bench warrant was [*154] thereupon issued on 2 May charging the violations.  Bryan appeared before the court on 8 August 1977, the day for the hearing on the alleged violations.  The State was represented by an Assistant State's Attorney.  After the following colloquy between the court and Bryan, the hearing proceeded without Bryan being represented by counsel:
 
"COURT: Do you have an attorney, Mr. Bryan?
 
DEFENDANT: No, sir.
 
COURT: Do you want one?
 
DEFENDANT: No, sir.
 
 COURT: You do not?
 
DEFENDANT: No, sir.
 
COURT: All right."
 
The State adduced evidence of the violations[***5] through the testimony of an agent of the Department of Parole and Probation. Bryan offered no evidence and made no argument.  The court found him "guilty of the violation of the probation." After affording Bryan an opportunity to be heard, probation was revoked and the original two year sentence was "reimposed." Bryan appealed.  The Court of Special Appeals reversed the judgment and remanded the case for further proceedings.  Bryan v. State, 39 Md. App. 250, 384 A. 2d 479 (1978). We granted the State's petition for a writ of certiorari.

   The issue for decision is whether a probation revocation hearing conducted in a circuit court for any county or in the Criminal Court of Baltimore is within the ambit of Rule 723 of the Maryland Rules of Procedure. We hold that it is. As shall be demonstrated, the failure of the Circuit Court for Anne Arundel County to comply with the relevant provisions of the Rule constituted reversible error. Therefore, the Court of Special Appeals was correct in reversing the judgment of the trial court.

   I

   We observe initially that the requirements of Rule 723 are mandatory. The precursor to the present Rule, originally also [*155] designated as [***6]Rule 723 and later as Rule 719, included less elaborate provisions for the appointment and waiver of counsel. We have held that the requirements of the former rules were mandatory. Manning v. State, 237 Md. 349, 353, 206 A. 2d 563 (1965); Taylor v. State, 230 Md. 1, 2, 185 A. 2d 197 (1962); Williams v. State, 220 Md. 180, 181, 151 A. 2d 721 (1959); Hill v. State, 218 Md. 120, 127, 145 A. 2d 445 (1958). See also Isen v. Phoenix Assurance Co., 259 Md. 564, 570, 270 A. 2d 476 (1970), in which we declared our Rules "are not guides to the practice of law but precise rubrics 'established to promote the orderly and efficient administration of justice and [that they] are to be read and followed.' Brown v. Fraley, 222 Md. 480, 483 [161 A. 2d 128] (1960)."

   (1)

   It is plain that Rule 723 encompasses probation revocation hearings.  Section a requires a defendant to "appear in person at the time and place specified in the summons or other writ issued pursuant to Rule 720 . . ., unless his counsel enters an appearance for him in writing on or before the time." n3 Section b establishes procedures which the court shall follow when a defendant appears pursuant to § a[***7] and is not represented by counsel.  Section d 2 deals with the appearance without counsel of a defendant after his appearance pursuant to § a:

   [**478] "If the defendant appears in court without counsel, at any proceeding after his appearance pursuant to section a of this Rule, the court may not proceed before determining whether the defendant at that time desires to waive counsel, or has waived counsel, either affirmatively or by neglecting or refusing to obtain counsel." (Emphasis added).
  
Patently, § d 2 is not limited to a criminal trial but encompasses "any proceeding after [the defendant's] [*156] appearance pursuant to section a . . . ." A revocation of probation hearing, as conducted in Maryland, is a proceeding after the defendant's appearance pursuant to § a.  It relates directly to the criminal case of the substantive offense and is docketed, not as a separate action, but on the docket of that case.

n3 Rule 720 provides that when a charging document is filed with the court, the clerk shall issue a summons to the defendant commanding him to appear before the court.  A "charging document," as defined by Rule 702 a, "means a written accusation, filed in court, alleging that a defendant has committed an offense." According to Rule 702 e an "offense" is "a violation of the criminal laws of this State or a political subdivision thereof."

[***8]

   (2)

   It is abundantly clear that Rule 723 requires that a defendant in a proceeding within its ambit have the assistance of counsel unless waived by him. When a defendant appears pursuant to § 1 and is not represented by counsel, the court shall "[a]dvise the defendant that he has a right to be represented by counsel at every stage of the proceedings . . . ." § b 2.  Section b 3 further requires that the court advise him "[t]hat counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial," § c 2, and "[t]hat even if [he] intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition," § c 3.  The court must advise him "that if he finds he is financially unable to retain the service of private counsel, he should apply to the Public Defender as soon as possible for a determination of his eligibility to have counsel provided for him by the Public Defender," § b 5, and "if the Public Defender declines to provide representation, the defendant[***9] should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel pursuant to Article 27A, section 6 (f), of the Maryland Code," § 6 b. Code (1957, 1976 Repl. Vol.) art. 27A provides for a Public Defender and sets out his powers and duties.  Section 6 (f) declares that nothing in the article "shall be construed to deprive [the] court . . . of its authority to appoint an attorney to represent an indigent person . . . where the Office of the Public Defender declines to provide representation to an indigent person entitled to representation under this article."

   [*157] Rule 723 goes further.  It prescribes a precise waiver inquiry to be made "[w]hen a defendant indicates a desire or inclination to waive counsel. . . ." § c.  The court may not accept the waiver until it determines, "after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends . . ." certain matters.  Id. These matters include the important and substantial assistance counsel can render him as set out in § c 2 and 3, see supra,[***10] and "[t]hat if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him." § c 4.

   Record of compliance with the obligations of the court is required by § e:

   "The advice of the court given pursuant to section b and c of this Rule and the finding that the defendant waived counsel pursuant to sections c and d of this Rule shall be made on the record in open court.  The docket entries shall affirmatively show compliance with this Rule."
 
The Rule expressly provides in § d 2, as we have indicated, that "[i]f the defendant appears in court without counsel, at any proceeding after his appearance pursuant to section a of this Rule, the court may not proceed before determining whether the defendant at that time desires to waive counsel, or has waived counsel, either affirmatively or by neglecting or refusing to obtain counsel." (Emphasis added).

   [**479] Beyond doubt, the foundation of Rule 723 is that, unless counsel is effectively waived under the waiver scheme established by the Rule, n4 a defendant in any proceeding within the ambit of the Rule shall[***11] be represented by counsel, retained by the defendant if he is financially able to do so, or, if he is not, provided by the State, either through the Public Defender or by court appointment when the Public Defender [*158] declines to provide the representation.  Since a probation revocation hearing is within the ambit of the Rule, the court may not proceed with the hearing absent counsel for the probationer unless counsel is duly waived. In short, although, in effect, the Rule implements constitutional rights to assistance of counsel, regardless of any constitutional rights, it bestows upon a probationer the right to counsel at a probation revocation hearing. n5

n4 For a waiver of counsel to be effective a defendant must be competent to waive the right and knowingly and intelligently do so after being made aware of the advantages and disadvantages of self-representation.  State v. Renshaw, 276 Md. 259, 267, 347 A. 2d 219 (1975).

n5 Any question that an indigent probationer at a probation revocation hearing as conducted in this State has a constitutional right to assistance of appointed counsel was eliminated when effective 1 July 1978, the court, upon a determination that any condition of probation was violated, was no longer restricted to imposing the original sentence, but could impose "any portion thereof." Md. Code (1957, 1976 Repl. Vol., 1978 Cum. Supp.) art 27, § 642. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756 (1973) concerned probation revocation hearings before administrative bodies.  Although the Court refused to establish exact guidelines for appointment of counsel in such circumstances, it gave plain indication when counsel should be provided indigents to satisfy due process.  Id. at 790-791. Under the Gagnon criteria it would be hard to gainsay that a probationer in a Maryland revocation proceeding would not now be entitled to appointed counsel.

[***12]

   III

   An information was filed against Bryan on 19 May 1976 charging him with armed robbery and related offenses.  Capias issued.  He was arraigned on 3 June, pleaded not guilty, and the election of a jury trial was reserved.  This was his appearance pursuant to § a of Rule 723.  The revocation of probation hearing on 8 August 1977 was a proceeding after his appearance pursuant to § a.  As he appeared without counsel, the court was prohibited by Rule 723 d 2 from proceeding before determining whether he desired to waive counsel or had waived counsel, either affirmatively or by neglecting or refusing to obtain counsel. Bryan said he did not want counsel, thus indicating that he desired to waive counsel. Where the court went astray was to leave the matter there.  The court was then required to conduct the waiver inquiry prescribed by § c.  The record does not show, pursuant to § e, that the court advised Bryan as required by § c and that it found that he waived counsel pursuant to §§ c and d, nor do the docket entries affirmatively show compliance with [*159] the Rule. Proceeding with the hearing in the circumstances here was reversible error. Bryan must be afforded a new[***13] hearing upon compliance with the relevant provisions of Rule 723. n6

n6 Rule 723 does not elevate a probation revocation hearing to the status of a "criminal prosecution" within the meaning of U. S. Const. amend. VI and Md. Const. Declaration of Rights, art. 21.  Thus, the probationer is not invested with all the rights constitutionally accruing to a defendant in a criminal prosecution, and the hearing, although judicial, is not subject to all of the limitations imposed by law upon a trial leading to conviction.  The proceedings are to be tested by fundamental fairness -- the touchstone of due process.  See Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756 (1973).

   Judgment of the Court of Special Appeals affirmed with respect to the reversal of the judgment of the Circuit Court for Anne Arundel County; case remanded to the Court of Special Appeals with direction to remand to the Circuit Court for Anne Arundel County for a new hearing in accordance with this opinion; costs to be paid by Anne Arundel [***14]  County. 

HOBART BOWERS v. STATE OF MARYLAND 
No. 150, September Term, 1977
 
Court of Appeals of Maryland
 
283 Md. 115; 389 A.2d 341; 1978 Md. LEXIS 411

 July  13, 1978, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Evans, J.

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

CORE TERMS:  child abuse, vagueness, cruel, criminal law, inhumane, common law, vague, void, fair warning, corporal, malicious, parental, custody, specificity, indefinite, First Amendment, discipline, criminal liability, void-for-vagueness, stepdaughter, loco parentis, penal statute, minor child, temporary, penal, cruelly, Fourteenth Amendment, mistreatment, chastisement, dictionary

COUNSEL: Martha G. Villmoare, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

   Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.

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

OPINIONBY: LEVINE

OPINION: [*116] [**343] We granted certiorari here to decide whether the State child abuse law, Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 35A, is so vague and indefinite as to violate the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.  After appellant's constitutional attack on the statute failed in the Circuit Court for Anne Arundel County (Evans, [***4]J.) and he was convicted by a jury of committing child abuse against his stepdaughter, he took an appeal to the Court of Special Appeals, which upheld the decision of the trial court in Bowers v. State, 38 Md. App. 21, 379 A. 2d 748 (1977). n1 We now affirm.

 n1 The same jury also found appellant guilty of raping his stepdaughter, but the trial court granted a new trial on this count and then accepted a guilty plea to the crime of carnal knowledge in lieu of the rape charge, which was consequently nolle prossed.  None of the events surrounding these alleged crimes was related to the child abuse offense.

   [*117] The relevant facts are both undisputed and uncomplicated. Appellant began living with Betty Bowers in 1964.  They were joined two years later by five-year old Patricia Evans, Betty's daughter by another man.  One month before the trial of this case, which occurred in August 1976, appellant and Betty were married.

   On February 25, 1976, Patricia, then 15 years of age, "played hookey" from school[***5] for part of the day.  When she returned home that evening, Betty, having learned of her daughter's absence from school, struck Patricia on the legs several times with a belt. n2 According to Patricia, appellant then took the belt and began to beat her with it, striking her 15 to 20 times on the back, neck, arm and legs.  She attended school on the next day, but a day later her vice-principal, during a conference concerning her truancy, observed her bruises and notified the Department of Social Services.  An investigating officer found bruises on Patricia's neck, arm and back which he photographed at the police station.  She was then taken to a hospital where she was given a tranquilizer and released.

n2 Betty Bowers, the natural mother, was also charged with child abuse and found guilty by the same jury.  Her conviction, however, was reversed by the Court of Special Appeals because of insufficient evidence.  Bowers v. State, 38 Md. App. 21, 30, 379 A. 2d 748 (1977).

   Appellant, who had previously represented himself[***6] to a social worker as Betty's husband, testified that he had accepted Patricia as his own child, that he had provided for her and had been strict with her.  He further testified that he had experienced "a lot of trouble" with Patricia in 1973 and that she had run away following another incident in which he had whipped her with a belt.

   I

   Although the tragic phenomena of child abuse and neglect have plagued our society since its inception, Children's Bureau, U.S. Department of Health, Education & Welfare, [*118] The Abused Child 1 (1963), it was not until the late 1950's that research physicians throughout the country began to uncover evidence showing that the incidence and violence of parental attacks on children were far greater than anyone had ever anticipated.  D. Gil, Violence Against Children 18 et seq. (1973).  Spurred on by these shocking revelations and by a major clinical study prepared by a team of pediatricians in 1962, see Kempe, Silverman, Steele, Droegenmueller & Silver, The Battered Child Syndrome, 181 J. Am. Med. A. 17 (1962), legislatures in all fifty states rapidly adopted laws aimed directly at reducing the prevalence of physical mistreatment [***7]of children.  Paulsen, Parker & Adelman, Child Abuse Reporting Laws -- Some Legislative History, 34 Geo. Wash. L. Rev. 482 (1966). On the history of child abuse generally, see [**344] Fontana, Somewhere a Child is Crying 4 et seq. (1976).

   Maryland's initial attempt at achieving a modicum of reform in this troubled area came in 1963 with the enactment of Chapter 743 of the Laws of 1963, then codified as § 11A of Article 27.  That pioneering statute, entitled "Assault on Child," made it a felony for any "parent . . . or other person" having "permanent or temporary care or custody of a minor child" to maliciously beat, strike or mistreat the child to such a degree "as to require medical treatment." n3 Seeking to expand the relatively narrow scope of criminal liability [*119] provided for in earlier legislation, the General Assembly amended the statute in 1973 to provide for the punishment of any parent or custodian who "causes abuse" to a child under the age of eighteen years.  Laws of 1973, ch. 835; Art. 27, § 35A (a); see State v. Fabritz, 276 Md. 416, 423-24, 348 A. 2d 275 (1975), cert. denied, 425 U.S. 942 (1976). The term "abuse" was defined to be[***8] any:
 
"physicial injury or injuries sustained by a child as a result of cruel or inhumane treatment or as a result of malicious act or acts by any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for supervision of a minor child." Art. 27, § 35A (b) (7) (A) (emphasis added). n4
 
For a discussion of the background of Maryland child abuse legislation, see Note, Maryland Laws on Child Abuse -- History, Analysis and Reform, 6 U. Balt. L. Rev. 113, 116-18 (1976).

n3 Ironically, at the time of its passage, Chapter 743 was already a rather outmoded response to the problem of child maltreatment.  As early as the turn of the century, a significant number of states had enacted so-called "child cruelty" legislation similar to Chapter 743, in that they were predominantly penal statutes.  Paulsen, The Legal Framework for Child Protection, 66 Colum. L. Rev. 679, 681-82 (1966). By the time the "battered child syndrome" had captured public attention in the early 1960's, it was generally agreed that the criminal law process was a grossly inadequate means of combatting child abuse, Paulsen, supra, 66 Colum. L. Rev. at 692-93; Delaney, The Battered Child and the Law in C. Kempe & R. Helfer, Helping the Battered Child and his Family 192 (1972), and that some sort of reporting system was minimally necessary.  Paulsen, Legal Protection against Child Abuse, 13 Children 43, 46 (1966).

   Although a reporting requirement was contained in the 1963 Maryland legislation as originally introduced (House Bill 922), this language was deleted for some reason prior to enactment of the bill.  Reporting procedures were, however, adopted by Chapter 103 of the Laws of 1964 and substantially augmented two years later.  Laws of 1966, ch. 221.

[***9] 

n4 In 1974 the definition of abuse was extended to include "any sexual abuse of a child, whether physical injuries are sustained or not." Laws of 1974, ch. 554.

   The sole ground asserted by appellant in this Court for reversal of his conviction is that the portion of the statute defining the felony of child abuse is so uncertain and indefinite as to deprive him of his right to due process of law under the Fourteenth Amendment. Appellant argues that the statute is unconstitutionally vague in two respects.  First, he maintains that the use of the phrase "cruel or inhumane treatment" in Art. 27, § 35A (b) (7) (A) effectively reduces the language of the statute to such a state of uncertainty "that it fails to convey a definite warning as to the proscribed conduct measured by common understanding and practices." Secondly, he claims that the failure of the statute to include any definition of the phrase "temporary care or custody" creates a further ambiguity of constitutional dimension, since neither appellant nor others similarly situated would have had any way of knowing whether they fell within[***10] the class of persons subject to prosecution under the law.  In our opinion, both of these contentions lack merit.

   [*120] II

   From a long line of Supreme Court decisions, certain basic and universally accepted principles have emerged concerning application of the void-for-vagueness doctrine. n5 [**345] The cardinal requirement is that a penal statute "be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties." Connally v. General Const. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926). "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Id. The Fifth and Fourteenth Amendments guarantee that "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.  All are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 83 L. Ed. 888 (1939). Accord, Hynes v. Mayor of Oradell,[***11] 425 U.S. 610, 620, 96 S. Ct. 1755, 48 L.Ed.2d 243 (1976); United States v. Mazurie, 419 U.S. 544, 553, 95 S. Ct. 710, 42 L.Ed.2d 706 (1975); Smith v. Goguen, 415 U.S. 566, 572 n.8, 94 S. Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L.Ed.2d 222 (1972); Bouie v. City of Columbia, 378 U.S. 347, 350-51, 84 S. Ct. 1697, 12 L.Ed.2d 894 (1964); United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989 (1954); Winters v. New York, 333 U.S. 507, 515-16, 68 S. Ct. 665, 92 L. Ed. 840 (1948). See generally Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960).

 n5 In present day jurisprudence the void-for-vagueness principle is treated almost exclusively as a dictate of constitutional due process.  Historically, however, the doctrine may well have had its origins in the practice of courts to refuse to enforce legislative enactments considered too indefinite to be fairly applied as a matter of common law. W. LaFave & A. Scott, Handbook on Criminal Law § 11, at 83 (1972); see Aigler, Legislation in Vague or General Terms, 21 Mich. L. Rev. 831 (1923).

[***12]

   In assessing the constitutionality of a statute assailed as overly uncertain either in respect of the acts it purports to prohibit or the persons to whom it applies, courts typically [*121] consider two basic criteria.  The first of these may be described as the fair notice principle and is grounded on the assumption that one should be free to choose between lawful and unlawful conduct.  Due process commands that persons of ordinary intelligence and experience be afforded a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly.  This notion of fair warning does not presume that criminals frequently consult the statute books prior to embarking on an illicit course of action.  Rather, as Mr. Justice Holmes explained in McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 75 L. Ed. 816 (1931):
 
"Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.  To make the warning fair, so far as[***13] possible the line should be clear."
 
Since "vague laws may trap the innocent by not providing fair warning," Hynes v. Mayor of Oradell, 425 U.S. at 622; Grayned v. City of Rockford, 408 U.S. at 108, no one should be subject to criminal responsibility for conduct which he could not reasonably understand to be prohibited.  Rose v. Locke, 423 U.S. 48, 49, 96 S. Ct. 243, 46 L.Ed.2d 185 (1975); United States v. Harriss, 347 U.S. at 617; Governor v. Exxon Corp., 279 Md. 410, 454, 370 A. 2d 1102, 372 A. 2d 237 (1977), aff'd, 437 U.S. 117, 98 S. Ct. 2207, 57 L.ED.2d 91 (1978).

   A statute may also be stricken for vagueness if it fails to provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws.
 
"A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory [*122] application." Grayned v. City of Rockford, 408 U.S. at 108-109; accord, Papachristou v. City of Jacksonville, 405 U.S. [***14] 156, 170, 92 S. Ct. 839, 31 L.Ed.2d 110 (1972).
 
[**346] This is not to say, of course, that a criminal statute is void merely because it allows for the exercise of some discretion on the part of law enforcement and judicial officials.  It is only where a statute is so broad as to be susceptible to irrational and selective patterns of enforcement that it will be held unconstitutional under this second arm of the vagueness principle. See Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 86 S. Ct. 518, 15 L.Ed.2d 447 (1966).

   As a general rule, the constitutionality of a statutory provision under attack on void-for-vagueness grounds must be determined strictly on the basis of the statute's application to the particular facts at hand.  United States v. Powell, 423 U.S. 87, 92, 96 S. Ct. 316, 46 L.Ed.2d 228 (1975); United States v. Mazurie, 419 U.S. at 550; United States v. National Dairy Corp., 372 U.S. 29, 32-33, 83 S. Ct. 594, 9 L.Ed.2d 561 (1963). Thus, it will usually be immaterial that the statute is of questionable applicability in foreseeable marginal situations, if a contested provision clearly applies to the conduct of the defendant in a specific case. [***15] United States v. Petrillo, 332 U.S. 1, 7, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947).

   A different rule governs, however, where the statute in question appears to intrude upon fundamental constitutional liberties, particularly the First Amendment guarantees of free speech and assembly.  In such cases, not only may the two vices of inadequate notice and insufficient adjudicative guidelines be present, but in addition the indefiniteness of the statute itself may inhibit the exercise of protected freedoms.  Winters v. New York, 333 U.S. at 509; United States v. National Dairy Corp., 372 U.S. at 36.
 
"[T]here is [in these cases] the danger that the state will get away with more inhibitory regulation than it has a constitutional right to impose, because persons at the fringes of amenability to regulation will rather obey than run the risk of erroneous [*123] constitutional judgment." Note, 109 U. Pa. L. Rev. at 80.

   On account of this "chilling effect" which vagueness can exert on First Amendment liberties, the Supreme Court has stated that whenever a criminal statute may, because of imprecise draftsmanship, impact upon free speech rights, the void-for-vagueness[***16] doctrine "demands a greater degree of specificity than in other contexts." Smith v. Goguen, 415 U.S. at 573; accord, Hynes v. Mayor of Oradell, 425 U.S. at 620; cf. Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 29 L.Ed.2d 214 (1971) (ordinance held unconstitutionally vague because it conditioned exercise of right of assembly upon unascertainable standard).  Translated, this principle of strict specificity means that where First Amendment values are at least potentially involved, the statute is to be tested for vagueness on its face.  Smith v. Goguen, 415 U.S. at 573; Winters v. New York, 333 U.S. at 509. So considered, the principle is essentially a rule of standing, permitting a defendant to challenge the validity of a statute as applied to marginal cases, even though the acts for which he has been charged may be squarely within the coverage of the statute.  Note, 109 U. Pa. L. Rev. at 97. Once it is determined, however, that a strict specificity standard ought to apply in any given case, the criteria for measuring the validity of a statute under the vagueness doctrine are the same as in a non-First Amendment context: fair warning and adequate [***17]guidelines.

   Although First Amendment interests are not implicated here, the matter of facial precision is not without significance in this case.  Appellant argues that greater specificity is required "in the area of criminal child abuse statutes because of their potential for unwarranted intrusions on the constitutionally protected right of privacy in family relationships." While the Supreme Court has to date limited its "stricter specificity" test to those vagueness cases in which only First Amendment rights have been asserted, several state and lower federal courts have taken the position in the meantime that a more rigorous standard of vagueness review is triggered whenever an ill-defined penal statute is alleged to infringe [**347] upon any of the fundamental freedoms [*124] protected under the Bill of Rights.  E.g., People v. Barksdale, 8 Cal. 3d 320, 105 Cal. Rptr. 1, 503 P. 2d 257, 260 (1972) (privacy); City of Lakewood v. Pillow, 180 Colo. 20, 501 P. 2d 744, 745 (1972) (right to bear arms); Alsager v. District Court of Polk Cty., Iowa, 406 F. Supp. 10, 18-19 (S.D. Iowa 1975), aff'd per curiam, 545 F. 2d 1137 (8th Cir. 1976) (statute terminating[***18] parental rights for refusal to "give child necessary parental care and protection" or for "conduct . . . detrimental to the physical or mental health or morals of the child" held unconstitutionally void for vagueness); see also Day, Termination of Parental Rights Statutes and the Void for Vagueness Doctrine: A Successful Attack on the Parens Patriae Rationale, 16 J. Fam. L. 213, 217 (1978).

   It remains to be seen whether the right of a parent to chastise his children by corporal punishment qualifies as a fundamental right for purposes of vagueness analysis.  There are, though, strong indications that parents may well be entitled to some degree of constitutional protection in choosing the means by which to correct or influence the behavior of their offspring.  See Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 505, 97 S. Ct. 1932, 52 L.Ed.2d 531 (1977) ("decisions concerning child rearing [are] recognized as entitled to constitutional protection"); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S. Ct. 1526, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972) ("the rights to conceive and to raise one's children have[***19] been deemed 'essential [and] basic civil rights of man'"); J. Nowak, R. Rotunda & J. Young, Constitutional Law 419 (1978) ("this [fundamental] right to privacy has been held to include the right to freedom of choice in . . . child rearing"); see also Alsager v. District Court of Polk Cty., Iowa, 406 F. Supp. at 16 (fundamental right of family integrity); Roe v. Conn, 417 F. Supp. 769, 777 (M.D. Ala. 1976); Sims v. State Dep't of Public Welfare, 438 F. Supp. 1179, 1190-91 (S.D. Tex. 1977).

   For purposes of the present appeal, we need not decide whether a standard of strict facial precision must be applied whenever a vague statute bears on any fundamental constitutional right, nor need we determine whether the [*125] parental privilege to engage in the physical discipline of children is such a right.  Since we are of the view that the Maryland child abuse law survives scrutiny even under the more demanding test currently being invoked in First Amendment cases, we may assume without deciding that the stricter standard applies here.

   III

   The thrust of appellant's constitutional attack is aimed at the definition of "abuse" in the Maryland statute.  He argues[***20] that the term "cruel or inhumane" is so indefinite as not to comport with established standards of due process.  We do not agree.

   A statute is not vague when the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning.  See Rose v. Locke, 423 U.S. at 50. ("Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid"); People v. Barksdale, supra, 503 P. 2d at 262; In Interest of Lewis, 257 N.W.2d 505, 510 (Iowa 1977) (upholding parental rights termination provision of child neglect statute against vagueness challenge); but cf. Lanzetta v. New Jersey, 306 U.S. at 453-54 ("The meanings of that word [gang] indicated in dictionaries and in historical and sociological writings are numerous and varied").

   Webster's Third New International Dictionary defines the word "cruel" as "disposed to inflict pain [especially] in a wanton, insensate, or vindictive manner: pleased by hurting[***21] others: sadistic." The word "inhuman," a variant of "inhumane," is defined by the same authority as "lacking the qualities of mercy, pity, kindness, or tenderness: cruel, barbarous, savage . . . ." [**348] Black's Law Dictionary (4th ed. 1968) defines the term "cruelty" as "the intentional and malicious infliction of physical suffering upon living creatures, particularly human beings; . . . applied to the latter, [*126]the wanton and unnecessary infliction of pain upon the body." See Caffas v. Bd. of Sch. Dirs. of Upper Dauphin Area, 23 Pa. Commw. Ct. 578, 353 A. 2d 898, 900 (1976). Clearly, then, the standard "cruel or inhumane" has a settled and commonly understood meaning.  See State v. Samter, 4 Or. App. 349, 479 P. 2d 237, 239 (1971).

   Additional support for this conclusion may be found amongst the common law rules regarding parental discipline of children.  Long before the advent of contemporary child abuse legislation, it was a well-recognized precept of Anglo-American jurisprudence that the parent of a minor child or one standing in loco parentis was justified in using a reasonable amount of force upon a child for the purpose of safeguarding or promoting[***22] the child's welfare. Boyd v. State, 88 Ala. 169, 7 So. 268, 269 (1890); R. v. Griffin, 11 Cox. Cr. Cas. 402, 403 (Assizes 1869); W. LaFave & A. Scott, Handbook on Criminal Law § 52, at 389-90 (1972).  So long as the chastisement was moderate and reasonable, in light of the age, condition and disposition of the child, and other surrounding circumstances, the parent or custodian would not incur criminal liability for assault and battery or a similar offense.  People v. Green, 155 Mich. 524, 119 N. W. 1087, 1089-90 (1909); State v. Black, 360 Mo. 261, 227 S.W.2d 1006, 1010 (1950); Annot., 89 A.L.R.2d 396, 401-404 (1963) (collecting cases).

   On the other hand, where corporal punishment was inflicted with "a malicious desire to cause pain" or where it amounted to "cruel and outrageous" treatment of the child, the chastisement was deemed unreasonable, thus defeating the parental privilege and subjecting the parent to penal sanctions in those circumstances where criminal liability would have existed absent the parent-child relationship.  Hinkle v. State, 127 Ind. 490, 26 N. E. 777, 778 (1891); see Neal v. State, 54 Ga. 281, 282 (1875); Paulsen, supra, 66[***23] Colum. L. Rev. at 686-87. Put another way, a parent was not permitted under the common law to resort to punishment which would exceed "that properly required for disciplinary purposes" or which would extend beyond the bounds of moderation.  "Excessive or cruel" conduct was universally prohibited. [*127]Fabian v. State, 235 Md. 306, 318-19, 201 A. 2d 511, cert. denied, 379 U.S. 869 (1964); Moore v. State, 15 Md. App. 396, 404-405, 291 A. 2d 73, cert. denied, 266 Md. 740 (1972); Carpenter v. Commonwealth, 186 Va. 851, 44 S.E.2d 419, 424 (1947).

   In amending the child abuse statute in 1973 so as to include for the first time a definition of abuse, the General Assembly was well aware of the common law limitations on the parental privilege to impose discipline. Indeed, we have repeatedly held that the Legislature is presumed to have had full knowledge and information as to prior and existing law on the subject of a statute it has enacted.  Harden v. Mass Transit Adm., 277 Md. 399, 406-407, 354 A. 2d 817 (1976). By electing to restrict the criminal liability of parents under the statute only to those cases where the parent or custodian causes his child or [***24]ward to sustain physical injury as a result of cruel or inhumane treatment or as a result of other acts of malice, the Legislature apparently intended the definition of abuse to correspond to that type of conduct which would have sufficed to destroy the privilege to discipline at common law.

   Thus, the terminology employed in Article 27, § 35A (b) (7) (A) appears to be nothing but a codification of the common law principles concerning the limits of permissible parental chastisement. Since the contours of the common law privilege have been subject for centuries to definition and refinement through careful and constant judicial decision-making, terms like "cruel or inhumane" and "malicious" have acquired a relatively widely accepted connotation in the law.  The use of such phraseology in the child abuse statute would, therefore, not render the law constitutionally [**349] infirm.  See State v. Magaha, 182 Md. 122, 131, 32 A. 2d 477 (1943) (upholding use of term "reasonable care" against vagueness attack); and see State v. Cherry, 224 Md. 144, 154, 167 A. 2d 328 (1961).

   For these reasons, the Maryland child abuse law is sufficiently explicit to survive even strict scrutiny[***25] under the Due Process Clause.  First, it meets the requirement of notice, such that persons of common intelligence need not guess at its meaning or speculate as to its application.  If the underlying rationale of the fair notice requirement is that a [*128] conviction should not result from conduct which cannot reasonably be understood as proscribed, that danger has been avoided here.  Parents of ordinary intelligence are made aware that they do not subject themselves to the statute by merely engaging in corporal discipline for the purpose of punishment or correction.  Only when the line is crossed and physical injury is intentionally and maliciously or cruelly inflicted does criminal responsibility attach.  In short, the statute provides fair warning; it sets no trap for the unwary or innocent parent.

   Similarly, the statute neither invites selective or discriminatory application by law enforcement authorities nor confers impermissible discretion upon judges and juries.  The language of § 35A draws for the benefit of police officers, prosecutors and triers of fact reasonably clear lines between the kinds of parentally inflicted corporal punishment that are criminal and those [***26]that are not.  Police, court and jury are precluded from reacting to nothing more than their own subjective ideas of child discipline.

   Although several child abuse statutes from among the many enacted in this country have been challenged on grounds of vagueness, none has been struck down as unconstitutional.  To be sure, none of these statutes employs language identical to that found in any of the others.  Nevertheless, the terminology invoked to describe prohibited conduct in most such legislation is similar in effect to that found in the statute at issue in the case before us.  See, e.g., Campbell v. State, 240 So. 2d 298 (Fla. 1970) ("Whoever tortures, torments, cruelly or unlawfully punishes, . . . or unnecessarily or excessively chastises"); People v. Vandiver, 51 Ill. 2d 525, 283 N.E.2d 681 (1971) ("willfully to cause or permit . . . the health of such child to be injured"); Hunter v. State, Ind., 360 N.E.2d 588 (1977) ("inflicting unnecessarily severe corporal punishment upon a child"); State v. Fahy, 201 Kan. 366, 440 P. 2d 566 (1968) ("Any person who shall torture, cruelly beat or abuse any child . . . or shall willfully inflict . . . any cruel or inhuman[***27] corporal punishment or injury resulting in a traumatic condition"); State v. Samter, supra, 479 P. 2d 237 ("who knowingly and willfully cruelly [*129] mistreats and maltreats"); State v. Killory, 73 Wis. 2d 400, 243 N.W.2d 475 (1976) ("cruel maltreatment"); and see People v. Hoehl, Colo., 568 P. 2d 484 (1977). What these cases demonstrate is that a standard of absolute mathematical precision, however desirable in any statute whether penal or not, is neither reasonably attainable nor constitutionally mandated.  As stated by Mr. Justice White in Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 32 L.Ed.2d 584 (1972):
 
"The root of the vagueness doctrine is a rough idea of fairness.  It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited."

   It is true that terms such as "cruel or inhumane" and "cruel mistreatment" are by nature somewhat loose-fitting descriptions of human behavior.  But in drafting a statute intended[***28] to deal with a problem as complex as child abuse, the Legislature is not required to spell out the prohibited acts in elaborate detail.  To do so would likely be counterproductive.  In our opinion, the definition of abuse challenged in the case at hand represents a most suitable compromise between the constitutionally mandated requirements of specificity and the practical need to devise language flexible enough to [**350]combat a social evil of truly inestimable proportions.  See Freund, The Use of Indefinite Terms in Statutes, 30 Yale L. J. 437, 437-38 (1921).

   IV

   Appellant contends finally that § 35A is vague and therefore constitutionally defective for the further reason that it fails to define adequately the class of persons to whom the statute applies.  Not being a natural parent of the victim, but rather her stepfather, he seizes upon the term [*130] "temporary care or custody" as being too indefinite to inform someone in his status that he comes within the ambit of the statute.  Otherwise stated, no one in his position is capable of ascertaining whether the statute is aimed only at persons who have been awarded custody by judicial decree or includes also[***29] those who may simply be caring for a child in place of the parent.  The answer to appellant's contention is found not so much in constitutional doctrine as it is in a proper interpretation of the statutory language in question.

   We find persuasive the case of State v. Smith, 485 S.W.2d 461 (Mo. App. 1972), in which an issue arose much like that presented here.  The defendant there was charged with mistreatment of his stepdaughter under a child abuse statute which subjected "any mother or father . . . or any other person having the care and control of any [child]" to criminal prosecution.  The contention there was that "care and control" meant, in effect, a court-awarded care and control, as distinguished from that status which prevails when one is in loco parentis with respect to a child.  See Paulsen, supra, 66 Colum. L. Rev. at 682-83. The Missouri court reasoned that the disputed language was modified by the context in which it was used, namely, by the preceding words "mother or father"; thus the term "any other person having the care and control" referred to one in loco parentis to the child.  We are likewise of the view that the Maryland General Assembly also intended[***30] that the statute here apply to persons who stood in that relationship to a child.  Had the Legislature wished to narrow application of the child abuse law to those who had been awarded custody or control by court order, it could readily have done so in explicit language to that end.  Here, appellant's own testimony amply established that he had assumed the "care or custody or responsibility for the supervision" of his stepdaughter, and thus stood in loco parentis with respect to her.

   We hold, therefore, that the Maryland child abuse statute meets the requirement of definiteness imposed by the Due Process Clause of the Fourteenth Amendment.

   Judgment affirmed; costs to be paid by appellant. 

RITCHMOUNT PARTNERSHIP et al. v. BOARD OF SUPERVISORS OFELECTIONS FOR ANNE ARUNDEL COUNTY, MARYLAND et al.; REFUSE DISPOSAL OF MARYLAND,INC. v. BOARD OF SUPERVISORS OF ELECTIONS FOR ANNE ARUNDEL COUNTY, MARYLAND etal. 
Nos. 161, 162, September Term, 1977
 
Court of Appeals of Maryland
 
283 Md. 48; 388 A.2d 523; 1978 Md. LEXIS 406

 June  26, 1978, Decided

   PRIOR HISTORY: [***1]  
Two appeals from the Circuit Court for  Anne Arundel  County; Childs, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Decrees of the Circuit Court for Anne Arundel County affirmed; costs to be paid by appellants.

CORE TERMS:  referendum, charter, voter, county council, ordinance, election, zoning, chartered, home rule, Home Rule Amendment, legislative power, local government, registered, repeal, unamended, Express Powers Act, law-making, form of government, charter counties, electorate, delegated, vested, residents, county charter, full power, legislative body, enact, signatures, amend, self-government

COUNSEL: William C. Mitchell, Jr., with whom was C. Bowie Rose on the brief, for appellant Ritchmount Partnership et al.  Thomas M. Downs and C. Fred Delavan, with whom was Harry C. Blumenthal on the brief, for appellant Refuse Disposal of Maryland, Inc.

   Robert C. Wilcox and Frederick C. Sussman, Assistant County Solicitors, with whom were Michael R. Roblyer, County Solicitor, and Emile J. Henault, Jr., on the brief for Board of Supervisors of Elections for Anne Arundel County, for Anne Arundel County, Maryland, appellees.

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

OPINIONBY: LEVINE

OPINION: [*50] [***6] [**526] We consider in these two appeals the constitutionality of Article III, § 308 of the Charter of Anne Arundel County and specifically whether the people of a home rule county may [*51] confer upon themselves the power of referendum over local legislative enactments, where such power was neither delegated by act of the General Assembly nor expressly reserved to the inhabitants of charter counties by the Constitution of this State. n1

n1 Since both appeals here involve identical questions of law and arise out of virtually identical factual settings, we shall, for the sake of economy and clarity, decide these cases in a single opinion.  See Gov't Employees Ins. v. Ins. Comm'r, 273 Md. 467, 468, 330 A. 2d 653 (1975).

   In ratifying § 308, the voters of Anne Arundel County sought to retain the right to approve or reject by way of petition and popular election ordinances of the Anne Arundel County Council. Appellants, who own real property situated in northern Anne Arundel County, instituted these[***7] separate suits in the Circuit Court for Anne Arundel County (Childs, J.), challenging the validity of § 308 and a 1974 zoning referendum held pursuant thereto. n2 The trial court issued a declaratory decree upholding the referendum article and election. Because of the singular importance of the constitutional question to the fundamental structure and administration of local government in Maryland, we granted certiorari to review these companion cases prior to their consideration by the Court of Special Appeals.  We now affirm.

n2 Named as defendants in both actions were Anne Arundel County and the members of the Board of Supervisors of Elections of Anne Arundel County.

   Early in October 1972, the Anne Arundel County Council (the County Council) enacted Bill No. 136-72, adopting comprehensive zoning maps for the northern portion of the County's third assessment district in which appellants' property is located.  That same day the County Council gave its approval to a total of 97 individual amendments, 14 of which[***8] were successfully vetoed by the County Executive. n3 The remaining 83 amendments and original Bill No. 136-72 finally went into effect on December 2, 1972.  As a result of the passage of Bill No. 136-72, appellants' properties were reclassified to permit commercial and light industrial uses in lieu of prior primarily residential restrictions.

n3 Actually the County Executive cast 34 item vetoes, 20 of which were subsequently overridden by vote of the County Council.

   [*52] In the meantime, a contingent of property owners dissatisfied with the 1972 zoning legislation commenced a suit in equity to restrain County authorities from enforcing Bill No. 136-72.  The Circuit Court for Anne Arundel County granted the desired relief, declaring the ordinance to be void in its entirety on account of the County Council's failure to comply strictly with the dictates of § 307 of the county charter setting forth certain procedural requirements for the amendment of local ordinances. On appeal this Court, in Anne Arundel [***9]  County v. Moushabek, 269 Md. 419, 430-31, 306 A. 2d 517 (1973), affirmed the decision of the chancellor insofar as it invalidated all 83 amendments, but modified the decree so as to resurrect the original unamended version of Bill No. 136-72.

   In the wake of Moushabek, the County Council acted swiftly to pass emergency legislation, Bill No. 52-73, which was designed to repeal what remained of Bill No. 136-72 and reenact it, this time with the provisions of the judicially stricken 83 [**527] amendments incorporated directly into the text of the new law.  Instead of challenging the new ordinance through litigation, opponents of this latest zoning action undertook to defeat it by appealing to the voters of Anne Arundel County.  Accordingly, a petition for referendum bearing the requisite number of signatures was filed in timely fashion with the Board of Supervisors of Elections of Anne Arundel County (the Elections Board), which, in accordance with the provisions of § 308 of the Charter, ordered the question placed on the ballot for the upcoming general election. n4 On November 5, 1974, the voters of Anne Arundel County rejected Bill No. 52-73 by a decisive margin.

n4 Article III, § 308 of the Charter of Anne Arundel County provides in relevant part:
 
"(a) Scope of the referendum.  The people of Anne Arundel County reserve to themselves the power known as 'The Referendum,' by petition to have submitted to the registered voters of the County, to approve or reject at the polls, any ordinance or part of any ordinance of the County Council. The referendum petition against any such ordinance shall be sufficient if signed by ten per centum of the qualified voters of the County calculated upon the whole number of votes cast in the County for Governor at the last preceding gubernatorial election. Such petition shall be filed with the Board of Supervisors of Elections of Anne Arundel County within forty-five days after the ordinance becomes law."

[***10]

   [*53] In an effort to annul the results of the November referendum and thereby to revive the ill-fated Bill No. 52-73, appellants commenced the present actions, claiming that the Elections Board lacked authority to approve the citizen referendum petitions.  It was argued that § 308, which created the right to hold local referenda in the first instance, was itself invalid, being an exercise of power allegedly in excess of that vested in counties adopting a charter form of government under the Home Rule Amendment to the State Constitution, Md. Const., Art. XI-A, and the Express Powers Act, Maryland Code (1957, 1973 Repl. Vol. & 1977 Cum. Supp.) Art. 25A, § 1 et seq.

   Ruling in favor of the constitutionality of the charter referendum article, the lower court concluded that Bill No. 52-73 had been properly presented to the electorate of Anne Arundel County and therefore had been effectively repealed. In so holding, the chancellor was thus required to ascertain what, if any, prior zoning legislation governed the permissible use of appellants' real estate following the popular repudiation of Bill No. 52-73.  Rejecting appellants' suggestion that the repeal of Bill No. 52-73[***11] had created a zoning vacuum, leaving their property free from land use controls altogether, the trial court ruled that the defeat of the ordinance automatically revived predecessor Bill No. 136-72 in its unamended form -- a result which, in the chancellor's opinion, was mandated by our holding in Anne Arundel County v. Moushabek, supra, 269 Md. 419.

   In the appeals before us, appellants challenge both the legality and effect of the 1974 zoning referendum. We turn first to the question of the constitutionality of the Anne Arundel County charter referendum article.

   I

   The crux of appellants' constitutional assault on § 308 is that when the people of Anne Arundel County framed and ratified their county charter in 1964, they, like the inhabitants of the state's seven other charter counties (Baltimore, Harford, Howard, Montgomery, Prince George's, Talbot, and [*54] Wicomico), possessed no power to repeal or amend legislative enactments of the County Council, except that which had been explicitly conferred upon them by organic or statutory law.  It is argued that, save for certain provisions relating to the issuance of county bonds (Art. 25A, § 5 (P) (1) (ii)), there was nothing[***12] to be found in either the Constitution or the acts of the General Assembly which even remotely resembled a grant of the referendum power to the voters of Anne Arundel County, at least as of the time of the zoning referendum in November 1974. n5 Thus, say appellants, § 308 must [**528] be deemed a nullity, since it purports to reserve to the county citizenry a power which it had never validly acquired. n6

n5 Subsequent to the zoning referendum in dispute here, the General Assembly enacted Chapter 83 of the Laws of 1976, now codified as Code (1957, 1973 Repl. Vol., 1977 Cum. Supp.) Art. 25A, § 8, which amended the Express Powers Act in an attempt to give statutory support to the exercise of the right of referendum by citizens of chartered counties.  See Allen v. Hollingsworth, 246 Ky. 812, 56 S.W.2d 530 (1933) (upholding power of legislature to grant right of referendum to residents of municipalities in absence of constitutional authorization). Whatever the need for such legislation -- in light of our holding in the instant case -- it is clear that Chapter 83 could not retroactively affect the validity of the 1974 election. Therefore, the legality of the Anne Arundel County zoning referendum must rest on some other ground.

[***13] 

 n6 Interestingly, the Constitution explicitly guarantees the right of referendum over local legislation to the residents of all counties except those opting for a charter form of government under Md. Const., Art. XI-A.  Voters in "code counties" enjoy the referendum power by reason of Md. Const., Art. XI-F, § 7, while residents of non-home rule counties exercise this power over public local laws pursuant to Md. Const., Art. XVI, § 3.  Despite the lack of express constitutional authority, several charter counties in addition to Anne Arundel County have reserved the right of referendum by charter provision.  See, e.g., Baltimore County Charter, § 309; Montgomery County Charter, § 114; Prince George's County Charter, § 319.

   Resolution of the complex constitutional claim presented in these cases turns on the nature and scope of the rights of local self-government guaranteed to county residents by Article XI-A of the Constitution as implemented by Article 25A.  From the time of the establishment of the first county administration (St. Mary's) around the year 1637, see 1 J. Scharf, [***14] History of Maryland 123 (1967 ed.), to the first decade of the twentieth century, residents of Maryland's 23 counties enjoyed no appreciable measure of local self-determination.  Being nothing more than political subdivisions of the state, counties were considered to be mere administrative [*55] instrumentalities of state government, public corporations, subject at all times to the plenary control of the Legislature and possessing only those limited powers which had been delegated by the General Assembly, together with such implied powers as were necessary for the execution of the powers expressly granted.  Howard County v. Matthews, 146 Md. 553, 561, 127 A. 118 (1924); County Comm'rs of Talbot County v. County Comm'rs of Queen Anne's, 50 Md. 245, 259 (1879); Baltimore v. State, 15 Md. 376, 462, 74 Am. Dec. 572 (1860). For the historical background of early county government in Maryland, see J. McMahon, An Historical View of the Government of Maryland 79-97 (1831).  By and large, these delegated powers of local government were wielded by county commissioners who, like members of the levy and provincial courts before them, were administrative officials concerned[***15] primarily with the collection and disbursement of revenues to pay for needed county services.  Code (1957, 1973 Repl. Vol. & 1977 Cum. Supp.) Art. 25; City of Bowie v. County Comm'rs, 258 Md. 454, 461-62, 267 A. 2d 172 (1970); Schneider v. Lansdale, 191 Md. 317, 324-26, 61 A. 2d 671 (1948); Cox v. Anne Arundel County, 181 Md. 428, 433-34, 31 A. 2d 179 (1943). As for county residents, beyond the right to elect county commissioners and state legislators, they had limited authority to control or shape the form of county government, a matter which had always been dictated by the General Assembly. Lacking constitutional recognition as a distinct political entity within the state, Maryland v. Baltimore & Ohio R.R. Co., 44 U.S. (3 How.) 534, 550-51, 11 L. Ed. 714 (1845), aff'g, 12 G. &. J. 399, 38 Am. Dec. 317 (1842), the county electorate, as such, could not effectively direct or influence the formulation of policy affecting purely local concerns.

   The waning years of the nineteenth century witnessed the birth of a national movement, the purpose of which was to restore and revitalize local government by giving citizens of counties and municipalities the power to legislate[***16] as to local matters free from undue encroachment by state legislatures.  In Maryland, as elsewhere, the "Home Rule" movement was fueled by widespread public indignation over excessive [*56] legislative interference with and insensitivity toward local problems and concerns, and by a growing dissatisfaction with the [**529] enormously inefficient system of performing local law-making functions at the state level. J. Hurst, The Growth of American Law 234 (1950); see Steimel v. Board, 278 Md. 1, 6-7, 357 A. 2d 386 (1976); City of Baltimore v. Sitnick & Firey, 254 Md. 303, 311-12, 255 A. 2d 376 (1969); Scull v. Montgomery Citizens, 249 Md. 271, 274, 239 A. 2d 92 (1968). It was this popular demand for increased local autonomy that led ultimately to the ratification of Article XI-A at the general election of November 1915.

   The theory behind the principle of home rule is that the closer those who make and execute the laws are to the citizens they represent, the better are those citizens represented and governed in accordance with democratic ideals. State v. City of Milwaukie, 231 Or. 473, 373 P. 2d 680, 685 (1962). It is said that since the opportunity for popular[***17] participation and maximum public awareness of government is greatest at the local level, the likelihood of governmental arbitrariness and imposition is diminished by strengthening local political control over local concerns.  See Fordham, Decision-Making in Expanding American Urban Life, 21 Ohio St. L. J. 274, 275 (1960).

   Although this Court has stated that the Home Rule Amendment was intended to secure to the citizens of Maryland "the fullest measure of local self-government" in respect of their local affairs, State v. Stewart, 152 Md. 419, 422, 137 A. 39 (1927), Article XI-A in actuality does not constitute a grant of absolute autonomy to local governments.  J. Spencer, Contemporary Local Government in Maryland 21 (1965).  Rather, by providing for the transfer to the counties, within well-defined limits, of legislative powers formerly reserved to the General Assembly, Article XI-A affords chartered counties a certain measure of independence from the State Legislature.  County Council v. Investors Funding, 270 Md. 403, 418, 312 A. 2d 225 (1973); Murray v. Director of Planning, 217 Md. 381, 389, 143 A. 2d 85 (1958). For a general discussion of county self-government[***18] in Maryland, see Moser, County Home Rule -- Sharing the [*57] State's Legislative Power with Maryland Counties, 28 Md. L. Rev. 327 (1968).

   The exercise of local legislative powers is subject at all times to provisions of the Constitution and general law, and is limited to those matters allocated by the express powers which the Legislature has delegated under Article 25A of the Annotated Code.  Md. Const., Art. XI-A, §§ 1 & 3; Mont. Citizens League v. Greenhalgh, 253 Md. 151, 158, 252 A. 2d 242 (1969); J. Spencer, Contemporary Local Government in Maryland 22 (1965).  Article XI-A does not in and of itself confer legislative power upon the counties.  Instead it mandates that the General Assembly expressly enumerate and delegate those powers exercisable by counties electing a charter form of government. Md. Const., Art. XI-A, § 2.  In compliance with this constitutional injunction, the Legislature enacted in 1918 the Express Powers Act, which, as amended, endows charter counties with a wide array of legislative and administrative powers over local affairs.  Art. 25A, § 5.  These "legislative powers" are those usually associated with the objects of government -- [***19] that is, powers to legislate for the benefit of the health, safety and general welfare of the local community. n7

n7 Examples of what we have termed local "legislative powers" are set forth in Article 25A, § 5 and include among others: the power to provide for the protection of county property, to prevent, abate and remove nuisances, to provide for repair of highways, bridges and streets, to pass local fish and game laws, to enact laws pertaining to the development and administration of a comprehensive recreational program, and to provide for zoning of local real estate.

   Once a particular power has been delegated under Article 25A, the Home Rule Amendment forbids the State Legislature from enacting any further public local laws within the scope of the express power so granted, Art. XI-A, § 4; State's Atty v. City of Balto., 274 Md. 597, 606, 337 A. 2d 92 (1975), until such time as the Legislature withdraws the power by public general law.  Moreover, under Art. XI-A, § 3 the county [**530] council of[***20] a chartered county has full power to enact local laws and to repeal or amend local laws of the General Assembly applicable solely to the county, so long as the county legislation is covered by one or more of the express powers enumerated in Article 25A.

   [*58] Despite the expansive grant of authority effected by the Express Powers Act, the legislative power of Maryland's charter counties nevertheless remains vulnerable to amendment or perhaps even extinction at the discretion of the Legislature.  Moser, County Home Rule, 28 Md. L. Rev. 327, 342-43 (1968). This is because the local law-making power exists by reason of a statutory grant of authority; the legislative power of a charter home rule county is not and never has been constitutionally secured.

   There are, however, certain powers implicit in Article XI-A which do not qualify as legislative powers and which do not require implementing legislation to render them operative.  These powers necessarily proceed from § 1 of the Home Rule Amendment and have as their object the initial organization and formation of charter government in the counties.  See Appendix.  Article XI-A, § 1 effectively reserves to the people of this[***21] state the right to organize themselves into semi-autonomous political communities for the purpose of instituting self-government within the territorial limits of the several counties.  The means by which the inhabitants acquire such autonomy is the charter. Being, in effect, a local constitution, the charter fixes the framework for the organization of the county government.  In re Pfahler, 150 Cal. 71, 88 P. 270, 275, 11 L. R. A., N.S., 1092 (1906); cf. Harford County v. Schultz, 280 Md. 77, 85, 371 A. 2d 428 (1977); Anne Arundel County v. Moushabek, supra, 269 Md. at 422 (charter is to local legislative body as Constitution is to General Assembly).  It is the instrument which establishes the agencies of local government and provides for the allocation of power among them.

   From beginning to end, the charter adoption and ratification process is an act of the people, an expression of the local popular will to which the Maryland Constitution has attached fundamental legal significance.  Thus, the preamble to the Charter of Anne Arundel County provides in its entirety:
 
 "We, the People of Anne Arundel County, State of Maryland, in order to form a more orderly County[***22] government, establish separate legislative and [*59]executive branches, insure responsibility of and accountability for public funds, promote the general welfare and secure the benefits of home rule, do, in accordance with the Constitution and the laws of the State of Maryland, adopt, ordain, and establish as our Charter and form of government this Charter of Anne Arundel County, Maryland."
 
Furthermore, under the procedures set out in §§ 1 and 1A of Article XI-A, a proposed charter cannot become operational until it receives the imprimatur of the people through ratification at a popular election. From this it can be seen that the power to establish and organize local government springs directly from Article XI-A and thus lies beyond the competence of the General Assembly or any other branch of state government to alter or erase.

   Consequently, in adopting a home rule charter the people have the right to make provision therein for any form of government they deem suitable for their needs, so long as they do not in the process run afoul of the letter and spirit of the Federal and State Constitutions.  Their right to adopt a particular form of government, in contradistinction[***23] to the power to enact local legislation, is in no way dependent on legislative authorization or enactment. See State v. City of Lincoln, 137 Neb. 97, 288 N. W. 499, 502 (1939); see In re Pfahler, supra, 88 P. at 275.

   To summarize then, Article XI-A was intended to encompass two distinct categories of home rule powers: the power to enact local law (legislative power) and the power to form and establish local government. Thus, with regard to the present [**531] appeals, it is incumbent upon us to determine in which of these two classes of home rule powers the right to referendum by petition secured by § 308 properly belongs.  If the referendum is a power arising under § 1 of Article XI-A, that is, one respecting the formation and structure of local government, we need look no further to identify the grounds for upholding the constitutionality of § 308, since the referendum would then have been a power vested directly in the people of Anne Arundel County under the Home Rule Amendment. But if the referendum falls outside the ambit of [*60] Article XI-A, § 1, its exercise must have been expressly authorized by the Legislature.

   By the term "referendum," we mean[***24] that power of direct legislation through the exercise of which the people of a state or a political subdivision may approve or reject an act or other measure passed by a legislative body. Anne Arundel Co. v. McDonough, 277 Md. 271, 283, 354 A. 2d 788 (1976); Beall v. State, 131 Md. 669, 678, 103 A. 99 (1917). n8 It is customary to draw a distinction between compulsory referenda on the one hand and optional or "facultative" referenda on the other.  Where the Legislature directs that a given statute not take effect until and unless approved by a vote of the electorate, it is described as "compulsory." See, e.g., Bradshaw v. Lankford, 73 Md. 428, 21 A. 66, 11 L. R. A. 582 (1891); Hammong v. Haines, 25 Md. 541, 90 Am. Dec. 77 (1866); Burgess v. Pue, 2 Gill 11 (1844). Where, however, the people are authorized, usually by constitutional reservation, to require submission of a bill for their approval by petition, even though the Legislature is silent on the matter of a plebiscite, the voters are said to possess the power of facultative referendum. It is to this latter category that § 308 of the Anne Arundel County Charter belongs. n9

 n8 Although the referendum may have been known in early colonial America and still persists as a feature of the celebrated New England town meeting form of government, it was for the most part the brainchild of the Populist and Progressive movements which dominated national politics in the late nineteenth and early twentieth centuries.  E. Oberholtzer, The Referendum in America (3d ed. 1912).  American political reformers in turn borrowed the theory and institutions of direct democracy from the Swiss, who had incorporated the referendum into their federal constitution as early as 1868, and much earlier in the individual cantons.  Lowell, The Referendum in Switzerland and in America, 73 Atlantic Monthly 517 (1894); see also Town of Glenarden v. Bromery, 257 Md. 19, 23 n. 1, 262 A. 2d 60 (1970). Popular support for the direct legislation movement in the United States was short-lived, lasting only about 20 years (1898-1918), during which time the referendum was adopted by 22 states including Maryland.  Md. Const., Art. XVI (ratified, Nov. 2, 1915).  With the exception of Alaska in 1959, no state has since adopted or jettisoned the referendum. See Constitutional Convention Commission of Md., Constitution Revision Study Documents -- Direct Legislation 102-106 (1968); Council of State Governments, The Book of the States 1976-1977 216-17 (1976).

[***25] 

n9 Prior to 1915, facultative referendum was thought to be impossible in Maryland on the theory that the authority to enact, repeal or amend laws had been vested exclusively in the General Assembly -- the people having completely transferred all legislative power to the Legislature.  Cole v. Secretary of State, 249 Md. 425, 434, 240 A. 2d 272 (1968); see Brawner v. Supervisors, 141 Md. 586, 595, 119 A. 250 (1922); Kenneweg v. Allegany County, 102 Md. 119, 122-23, 62 A. 249 (1905). In response to the public outcry over corruption in state government and alleged abuses of legislative power, the General Assembly proposed and the people ratified Article XVI, reserving the right of referendum by petition with respect to public general and local laws enacted by the General Assembly.  J. Wheeler & M. Kinsey, Magnificent Failure: The Maryland Constitutional Convention of 1967-68 142 (1970); see Beall v. State, 131 Md. 669, 677-78, 103 A. 99 (1917); Bd. of Ed. v. Mayor of Frederick, 194 Md. 170, 176-77, 69 A. 2d 912 (1949); Note, 3 Stan. L. Rev. 497, 497-98 (1951). Although § 308 of the Anne Arundel County Charter was patterned after the state-wide referendum article, Reporter's Note to § 308, all parties agree that Article XVI has no application to legislation passed by county councils pursuant to a grant of home rule authority.

[***26]

   [*61] Described recently by the United States Supreme Court as a "basic instrument of democratic government," Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 679, 96 S. Ct. 2358, 49 L.Ed.2d 132 (1976), and by the California Supreme Court as "one of the outstanding achievements of the progressive [**532]movement of the early 1900's," Associated Home Builders v. City of Livermore, 18 Cal. 3d 582, 135 Cal. Rptr. 41, 557 P. 2d 473, 477 (1976), the referendum is an integral component of the legislative process whenever authorized.  See Spaulding v. Blair, 403 F. 2d 862, 863 (4th Cir. 1968). In this respect, it differs little from other procedural steps in the law-making mechanism, such as the requirement that bills pass the legislative body or provisions for executive veto where the latter exists.

   It is evident that the referendum power reserved in § 308 directly affects the distribution of political power between the people of Anne Arundel County and their elected legislative representative body, the County Council, and thus is a fundamental feature of the overall structure of county government.  By establishing what is in effect a coordinate legislative[***27] entity, that is, the county electorate, the § 308 referendum is as much an element of the local political decision-making apparatus as the County Executive or the County Council itself.  As such, referendum by petition is quite clearly a power affecting the form or structure of local government and therefore belongs to that class of powers vested directly in the people of the several counties by Article XI-A, § 1.  As we have previously stated, these powers do not [*62] depend for their exercise on the passage of implementing legislation by the General Assembly.  See M. Levitt & E. Feldbaum, State and Local Government and Politics 45 (1973).

   Appellants would argue, however, that the reservation of the power to repeal or amend local legislation by plebiscite is inconsistent with § 3 of the Home Rule Amendment, which mandates that the county councils of charter counties "shall have full power to enact local laws" for the county (emphasis added).  It is argued that the effect of § 308 is to place a portion of the law-making power in the people in derogation of what appellants would term the plenary power of the County Council. We cannot agree.

   Art. XI-A, § 3 provides[***28] in relevant part:
 
"Every charter so formed shall provide for an elective legislative body in which shall be vested the law-making power of said . . . County.  Such legislative body . . . in any county shall be known as the County Council of the County.  . . . From and after the adoption of a charter by . . . any County of this State, as hereinbefore provided, . . . the County Council of said County, subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said . . . County including the power to repeal or amend local laws of said . . . County enacted by the General Assembly, upon all matters covered by the express powers granted as above provided; . . . ."
 
The first sentence of this section, which sets out the constitutional restrictions on the people's charter-making power, simply requires that the charter include a provision establishing a legislative body "in which shall be vested the law-making power." No attempt was made by the framers to confine the power to legislate exclusively to the council.  There is nothing in this clause which would purport to prohibit the exercise of some portion of this power by the[***29] people. n10 The [*63] effect of the language in the opening sentence of § 3 is to render the council the ultimate repository of all legislative [**533] power possessed by the county and not expressly reserved to some other body, such as the electorate. Section 3 undoubtedly requires that the council be the primary legislative organ; it does not altogether preclude the existence of other entities with coordinate legislative powers.  State v. City of Duluth, 134 Minn. 355, 159 N. W. 792, 795 (1916); Pittman v. Drabelle, 267 Mo. 78, 183 S. W. 1055, 1057 (1916); Mollner v. City of Omaha, 169 Neb. 44, 98 N.W.2d 33, 39 (1959).

 n10 Seeking to circumvent the restrictions imposed by § 3, appellees contend that the referendum power is in effect a veto and therefore is not properly considered to be an exercise of legislative power in conflict with the law-making authority vested in the county councils of charter counties. While there is some authority to support this position, see Morra v. City Clerk of New Bedford, 340 Mass. 240, 163 N.E.2d 268, 270 (1960); State v. Summers, 33 S. D. 40, 144 N.W. 730, 732 (1913), the better reasoned view, in our opinion, is that the referendum, as well as the veto power vested in the executive, is an aspect of the legislative power much like that invoked by the Senate when it considers a bill passed by the House.  State v. Alderson, 49 Mont. 387, 142 P. 210, 213 (1914); accord, State v. Brantley, 112 Miss. 776, 113 Miss. 786, 74 So. 662, 666 (1917); Gottstein v. Lister, 88 Wash. 462, 153 P. 595, 600 (1915); see 1. T. Cooley, A Treatise on Constitutional Limitations 320-26 (8th ed. 1926).

[***30]

   Likewise, the declaration in § 3 that the council have "full power" to enact local laws does not imply exclusivity.  Rather, it is more likely that the phrase "full power" was meant to describe the quality of the legislative power vested in the council and granted by the General Assembly.  In other words, with respect to the powers delegated to it, the County Council is to have as ample and complete power to legislate over local affairs as the General Assembly possessed prior to the ratification of Article XI-A and the enactment of the Express Powers Act. See Mobile School Comm'rs v. Putnam, 44 Ala. 506, 537 (1870); Brairton v. Gillette, 40 Misc. 2d 1009, 244 N.Y.S.2d 513, 516 (1963), aff'd mem., 23 App. Div.2d 537, 255 N.Y.S.2d 831 (1965); see also Baltimore City v. Flack, 104 Md. 107, 122, 64 A. 702 (1906) (full power does not mean conditional power).  Thus, while Article XI-A, § 3 bestows upon the county council ample and complete power to legislate within the limits set forth in the Express Powers Act, it does not necessarily confer the exclusive power to do so. 

   [*64] We hold therefore that Article XI-A, § 1 conferred upon the citizens of Anne Arundel[***31] County the right to reserve unto themselves by express charter provision the power to refer legislation enacted by the Anne Arundel County Council. Given this conclusion and in view of the general presumption of validity accorded county charter provisions, Harford County v. Schultz, supra, 280 Md. at 85; Wilson v. Bd of Sup. of Elec., 273 Md. 296, 300-301, 328 A. 2d 305 (1974), it follows that § 308 of the Charter of Anne Arundel County is constitutional and that the referendum election held pursuant thereto, repealing Bill No. 52-73, is valid.

   II

   Having established the legality of the 1974 referendum, we now address appellants' final contention, that this popular repeal of Bill No. 52-73 had the effect of leaving their respective properties subject to no zoning classification at all.  By successfully scuttling Bill No. 52-73, the voters of Anne Arundel County simultaneously negated the repeal of and thereby revived Bill No. 136-72.  The question on which the parties differ, however, is the form taken by Bill No. 136-72 following its reinstatement.

   It will be recalled that the 97 amendments to Bill No. 136-72 were voided on procedural grounds by our decision in Anne [***32]  Arundel County v. Moushabek, supra, 269 Md. 419. Thus, the only remaining valid zoning legislation applicable to appellants' realty was the unamended version of Bill No. 136-72. But, say appellants, the County Council would never have intended to permit those portions of Bill No. 136-72 (including, in particular, those provisions governing the classification of appellants' properties) to become law in their unamended form.  Accordingly, it is argued, only those portions of original Bill No. 136-72 which were never the subject of amendment survived the Moushabek decision, and hence were the only provisions capable of being reinstated by the 1974 zoning referendum. Among those unamended provisions was § 4, which repealed all preexisting zoning legislation governing appellants' properties.  Since § 4 was [*65] unaffected by Moushabek, the ultimate result was to render their properties completely unzoned.

   We need not dwell long on this rather convoluted argument, since, in our opinion, the decision in Moushabek necessarily determines the outcome here. Moreover, we decline appellants' invitation to overrule that decision.  In Moushabek, having determined that[***33] the 97 amendments to [**534] Bill No. 136-72 were enacted in violation of the procedural requirements of § 307 of the Anne Arundel County Charter and were therefore void, we then undertook to decide whether the invalid amendments were severable from the remainder of Bill No. 136-72.  Judge Smith, speaking for the Court, answered this question in the affirmative:
 
"It is obvious that council and executive regarded these amendments as severable from the main body of the ordinance. Otherwise, the executive would not have vetoed some of the amendments and the council would not have sustained the veto to part, but not all, of those amendments.  Had there been no amendments, the ordinance would have been complete as a vehicle for determining the permitted land uses in the district.  . . . [T]hese parts may be eliminated and the legislative intention easily carried out.  Accordingly, the chancellor erred in not determining that the ordinance was severable." 269 Md. at 430.
 
As a result of our holding in Moushabek, Bill No. 136-72 in its unamended form became the operative law.  It was this version of Bill No. 136-72 that the County Council attempted to repeal by[***34] emergency Bill No. 52-73 in July 1973.  And consequently it was this unamended version of Bill No. 136-72 which was automatically reinstated after Bill No. 52-73 went down to defeat at the hands of the electorate in 1974.  Since we have not been informed of any subsequent action by the County Council with respect to the zoning of appellants' properties, we conclude that these parcels were subject to the [*66]zoning restrictions set forth in the maps adopted by unamended Bill No. 136-72.

   Decrees of the Circuit Court for Anne Arundel County affirmed; costs to be paid by appellants.

   APPENDIX

   ARTICLE XI-A
  
"Section 1.  Charter boards; preparation and adoption of charter.

   "On demand of the Mayor of Baltimore and City Council of the City of Baltimore, or on petition bearing the signatures of not less than 20% of the registered voters of said City or any County (Provided, however, that in any case 10,000 signatures shall be sufficient to complete a petition), the Board of Election Supervisors of said City or County shall provide at the next general or congressional election, occurring after such demand or the filing of such petition, for the election of a charter board[***35] of eleven registered voters of said City or five registered voters in any such Counties.  Nominations for members for said charter board may be made not less than forty days prior to said election by the Mayor of Baltimore and City Council of the City of Baltimore or the County Commissioners of such County, or not less than twenty days prior to said election by petition bearing the signatures written in their own handwriting (and not by their mark) of not less than 5% of the registered voters of the said City of Baltimore or said County; provided, that in any case Two thousand signatures of registered voters shall be sufficient to complete any such nominating petition, and if not more than eleven registered voters of the City of Baltimore or not more than five registered voters in any such County are so nominated their names shall not be printed on the ballot, but said eleven registered voters in the City of Baltimore or five in such County shall constitute said charter board from and after the date of said election. At said election [*67] the ballot shall contain the names of said nominees in alphabetical order without any indication of the source of their nomination, and shall[***36] also be so arranged as to permit the voter to vote for or against the creation of said charter board, but the vote cast against said creation shall not be held to bar the voter from expressing his choice among the nominees for said board, and if the majority of the votes cast for and against the creation of said charter board shall be against said creation the election of the members of said charter board shall be void; but if such majority shall be in favor of the creation of said charter board, then and in that event the eleven nominees of [**535] the City of Baltimore or five nominees in the County receiving the largest number of votes shall constitute the charter board, and said charter board, or a majority thereof, shall prepare within twelve months from the date of said election a charter or form of government for said city or such county and present the same to the Mayor of Baltimore or President of the Board of County Commissioners of such county, who shall publish the same in at least two newspapers of general circulation published in the City of Baltimore or County within thirty days after it shall be reported to him.  Such charter shall be submitted to the voters of[***37] said City or County at the next general or Congressional election after the report of said charter to said Mayor of Baltimore or President of the Board of County Commissioners; and if a majority of the votes cast for and against the adoption of said charter shall be in favor of such adoption, the said charter from and after the thirtieth day from the date of such election shall become the law of said City or County, subject only to the Constitution and Public General Laws of this State, and any public local laws inconsistent with the provisions of said charter and any former charter of the City of Baltimore or County shall be thereby repealed." 

PUBLIC DEFENDER FOR ANNE ARUNDEL COUNTY et al. v. STATE'SATTORNEY FOR ANNE ARUNDEL COUNTY 
No. 72, September Term, 1977
 
Court of Appeals of Maryland
 
281 Md. 702; 381 A.2d 1153; 1978 Md. LEXIS 346

 January  10, 1978, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Evans and Cicone, JJ.

DISPOSITION: Appeal dismissed; Public Defender for Anne Arundel County to pay costs.

COUNSEL: George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and T. Joseph Touhey, District Public Defender for Anne Arundel County, on the brief, for appellants.

   Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on [***2]the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Levine, Eldridge, Orth and Cole, JJ.

OPINIONBY: PER CURIAM

OPINION: [*702] [**1154] We granted certiorari in this case to consider whether the Court of Special Appeals wrongly concluded in Duckett v. [*703] Touhey, 36 Md. App. 238, 373 A. 2d 323 (1977) that the Circuit Court for Anne Arundel County, sitting in equity, "lacked jurisdiction to enjoin the State's Attorney of Anne Arundel County from summonsing a sign language interpreter to appear before the grand jury of Anne Arundel County and testify regarding communications made by [the accused, David Barker], a deaf mute to the interpreter in the presence of the deaf mute's attorney, mother and brother."

   At oral argument counsel acknowledged that the sign language interpreter never appeared before the grand jury but that it nevertheless indicted Barker. Under these circumstances the case is now moot and we dismiss it.  See Bishop v. Governor, 281 Md. 521, 380 A. 2d 220 (1977); State v. Sheridan, 248 Md. 320, 236 A. 2d 18 (1967); Washburne v. Hoffman, etc., 242 Md. 519, 219 A. 2d 826 (1966); Maryland Rule 835 a 6.  See also Reyes v. Prince [***3]  George's County, 281 Md. 279, 380 A. 2d 12 (1977).

   Appeal dismissed; Public Defender for Anne Arundel County to pay costs. 

JOHN J. BISHOP, JR. et al. v. GOVERNOR OF MARYLAND 
No. 81, September Term, 1977
 
Court of Appeals of Maryland
 
281 Md. 521; 380 A.2d 220; 1977 Md. LEXIS 612

 December  7, 1977, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Beardmore, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Appeal dismissed; appellants to pay costs.

CORE TERMS:  budget, estimated, appropriations, moot, imperative, manifest, contingent, fiscal year, recurrence, declaratory judgment action, public importance, federal legislation, balanced, constitutional mandate, actual controversy, public concern, advisory, urgently, extraordinary circumstances, declaratory judgment, state legislation, real issue, fiscal year ending, declaration, expired, recur, inclusion

COUNSEL: John J. Bishop, Jr., with whom was H. Gregory Skidmore on the brief, for appellants.

   Carl E. Eastwick, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and George A. Nilson, Deputy Attorney General, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Levine, Eldridge and Orth, JJ. Murphy, C. J., delivered the opinion of the Court.  Smith, J., dissents and filed a dissenting opinion at page 526 infra.

OPINIONBY: MURPHY

OPINION: [*522] [**221] The Constitution of Maryland, Article III, § 52 (5a) mandates that the Governor of Maryland submit an annual budget and Budget Bill to the General Assembly containing "the total of all proposed appropriations and . . . the total of all estimated revenues available to [***3]pay the appropriations, and the figure for total proposed appropriations shall not exceed the figure for total estimated revenues." The section requires that the Budget Bill, as enacted, shall also be balanced, i.e., that "the figure for total estimated revenues always shall be equal to or to exceed the figure for total appropriations."
 
   On January 21, 1976, the Governor submitted a budget and Budget Bill to the General Assembly in the amount of $3.6 billion for the fiscal year ending June 30, 1977.  Included within it were estimated [**222] revenues of $74 million which would accrue to the State if during the 1976 legislative session the General Assembly enacted two lottery-related statutes proposed by the Governor.  Also included were estimated revenues of $21 million which would become available to the State if the Congress of the United States extended the [*523] Federal Revenue Sharing program beyond its scheduled expiration date of December 31, 1976.  None of the appropriations requested in the Budget Bill were contingent upon the passage of the proposed revenue-producing state or federal legislation. By an opinion dated February 23, 1976, the Attorney General [***4] of Maryland found no constitutional infirmity in the inclusion of these estimated revenues in the budget. n1 The Budget Bill was finally passed by the General Assembly on April 12, 1976.  The proposed state legislation designed to produce the estimated revenues of $74 million was enacted by the General Assembly and signed into law by the Governor on May 4, 1976.

n1 61 Op. Att'y Gen. 43 (1976).

   On July 26, 1976, the appellants, taxpayers and certain members of the General Assembly, sought a declaratory judgment that the inclusion of the contingent revenue sources in the Budget Bill, both as submitted and as finally enacted, violated the "balanced" budget requirements of § 52 (5a) of Article III of the Maryland Constitution.  Specifically, it was alleged that the estimated revenues in question were "contingent revenue figures in that they require legislative approval as a condition precedent to their becoming [within the contemplation of § 52 (5a)] 'estimated revenues available to pay the appropriations' contained[***5] in the budget"; and that "Since these revenue figures are contingent revenues and not 'estimated revenues available to pay the appropriations' the Budget submitted by the Governor was not balanced."

   The case was heard on January 21, 1977, by the Circuit Court for Anne Arundel County (Beardmore, J.) on cross-motions for summary judgment.  By an order filed on February 15, 1977, the court concluded that as long as the total proposed appropriations did not exceed the total estimated revenues, including revenues contingent upon the enactment of state or federal legislation, § 52 (5a) was not violated.  An appeal was timely entered; we granted certiorari prior to decision in the case by the Court of Special Appeals.  See Maryland Code (1974) Courts and Judicial Proceedings Article, § 12-201.

   [*524] The appellants argue that it is the purpose of § 52 (5a) to avoid budget deficits and that consequently estimated revenues must actually be "available" at the time they are included in the budget by the Governor.  They maintain that the constitutional provision cannot be interpreted to permit the Governor to use his intuition or political wisdom to balance the budget, and that to[***6] afford the word "available," as used in § 52 (5a), a subjective, rather than an objective denotation, subjects the executive budget system to the very abuse that it was established to avoid.  Appellants limit their constitutional attack on appeal to the estimated revenues included in the budget which were contingent upon the passage of the federal legislation.

   The legislation extending the Federal Revenue Sharing program beyond December 31, 1976, upon which the Governor relied in submitting his estimated revenue figure of $21 million was enacted by the Congress of the United States and approved by the President on October 13, 1976.  See State and Local Fiscal Assistance Amendments of 1976, Pub. L. No. 94-488, 90 Stat. 2341.  Hence, the revenues estimated by the Governor, both state and federal totaling $95 million, which he included in his budget were in fact realized well before the Circuit Court for Anne Arundel County entered its declaratory decree.

   It is, of course, well established that the existence of a justiciable controversy is a prerequisite to the maintenance of a declaratory judgment action. Harford County v. Schultz, 280 Md. 77, 371 A. 2d 428 (1977); Pr. [***7] George's Co. v. Bd. of Trustees, 269 Md. 9, 304 A. 2d 228 (1973). Time and [**223] again, we have said that appellate courts do not sit to give opinions on abstract propositions or moot questions, and appeals which present nothing else for decision may be dismissed as a matter of course.  State v. Ficker, 266 Md. 500, 295 A. 2d 231 (1972); Potts v. Governor, 255 Md. 445, 258 A. 2d 180 (1969); Washburne v. Hoffman, Etc., 242 Md. 519, 219 A. 2d 826 (1966). We recently observed in Hamilton v. McAuliffe, 277 Md. 336, 353 A. 2d 634 (1976), that the declaratory judgment process is not available to decide purely theoretical questions or questions that may never arise or where a declaration [*525] would not serve a useful purpose in terminating a controversy.

   No live controversy existed between the parties at the time the case was heard or decided by the Circuit Court for Anne Arundel County; the federal and state legislation upon which the estimated revenues depended had been enacted, and no real issue as to the constitutionality of the budget under § 52 (5a) for the fiscal year ending June 30, 1977 was any longer involved.  Moreover, the 1977 fiscal year budget[***8] has now expired and as to it no actual controversy can exist.  In these circumstances, no useful declaration could be made; indeed, it would be an act of futility, a useless gesture of no effect whatsoever, to consider the appeal.  See Md. Tobacco Grow. v. Md. Tob. Auth., 267 Md. 20, 296 A. 2d 578 (1972).

   We can, of course, give an opinion in a justiciable declaratory judgment action, even though moot, where extraordinary circumstances exist, such as where there is an urgently needed determination affecting future governmental conduct in which the public concern is both imperative and manifest. See Reyes v. Prince George's County, 281 Md. 279, 380 A. 2d 12 (1977). That case involved a matter of imperative and manifest public concern where, at the time the case was before us, an actual controversy did exist, and there was an urgent need for a judicial determination of the legality of a governmental bond issue; our decision in that case effectively adjudicated the merits of the litigation.  Unlike Reyes, the chronology of the present case indicates that nothing that we could do could undo or remedy that which has already occurred.  It is beyond our power to make a decision[***9] in this case which will bind any of the parties to it.  And while the issue raised in the case is undeniably one of considerable public importance, it may never recur, but if it does, there should be no difficulty in having it passed upon as a live issue.  Compare Lloyd v. Supervisors of Elections, 206 Md. 36, 111 A. 2d 379 (1954). Moreover, the views of the Court on the sensitive questions raised in the case are not presently immediately pertinent, [*526] and no imperative and manifest public need exists for a decision at this time.

   Appeal dismissed; appellants to pay costs.

DISSENTBY: SMITH

DISSENT:  
Smith, J., dissenting:

   I dissent because I believe we should decide the very important matter raised in this appeal, an issue which I regard as vital to the future fiscal well-being of this State.  However, I agree that this case is moot because the controversy concerns the budget for the fiscal year beginning July 1, 1976, which fiscal year has now ended.

   I hope a declaratory judgment action will be instituted forthwith if any Governor of Maryland again sends a budget to the General Assembly subject to attack on a basis similar to the issue raised here.  With the research [***10]done in this case and the cooperation of the parties, it is possible that a final appellate decision could be rendered prior to the deadline for the adoption of a budget. The courts would then be dealing with a really live controversy.  The Congress did finally enact legislation which had the effect of supplying the money counted upon in the budget here under attack.  That enactment did not come, however, until some months after the beginning of the fiscal year and a good eight months after the submission of the budget. Prompt action to secure an adjudication of the matter would not present the temptation to decide the question of whether revenues were "available" within the meaning of the Maryland Constitution upon the basis of that which ultimately took place rather [**224] than upon the basis of the factual situation existing at the time of the submission of the budget. I am not to be understood by this comment as criticizing the plaintiffs here since there was an indication at the argument before us that their reason for not pushing for an earlier hearing was to accommodate what was conceived by them and the Attorney General to be the best interest of the State.

   There have[***11] been a number of instances within the last 20 or 25 years in which Governors of Maryland in order to [*527] achieve a balanced budget have resorted to some ingenious bookkeeping measures such as a shift in the calculated time for receipt of certain revenues.  Accordingly, I believe it possible that the problem represented in this case may well recur. For that reason I regard this case as one of such public importance that we should consider the matter for the purpose of providing guidance for future conduct in similar circumstances.

   Reyes v. Prince George's County, 281 Md. 279, 380 A. 2d 12 (1977), was decided but four days prior to the argument in this case.  In it Judge Digges referred for the Court to the statement in Hammond v. Lancaster, 194 Md. 462, 471-72, 71 A. 2d 474 (1950), relative to deciding moot or abstract questions, "or, in the absence of constitutional mandate, render[ing] advisory opinions." The Court said in Reyes:

    "We think that the constitutional limitations we have just described are those to which the Court in Hammond referred when it indicated that advisory opinions would not be rendered without constitutional mandate. It is apparent [***12]to us that those limitations are not applicable to prevent our decision in a moot case where the requisite extraordinary circumstances exist. . . . We are loath to conclude that, simply because a judgment of this Court can no longer affect the rights of the parties who have brought the dispute before us for adjudication, it is necessarily beyond the judicial function without regard to the public importance of the issues, the likelihood of recurrence, and other similar factors.  Particularly where a controversy is live when appealed to this Court and the opposing positions are vigorously presented, so that the action is clearly suitable for resolution through the judicial process, in the absence of a clear constitutional prohibition, either express or reasonably implied, we decline to infer that it may never be judicially resolved.  We emphasize, however, that we will exercise this authority only in rare instances which [*528] demonstrate the most compelling of circumstances." (Footnotes omitted.) 281 Md. at 296-97.

   In Reyes we laid down certain procedures to be followed when an "action involves the validity of a statute or governmental regulation having the force of statute, [***13] or an urgently needed determination affecting future governmental conduct, and in which the public's concern is both imperative and manifest" in order that such a case "not hereafter necessarily be dismissed as collusive by a court of this State . . . ." By footnote, after the reference to the public's concern as "both imperative and manifest," the Court said in Reyes: 

   "In this regard it may be helpful to recall the language of the Court in Lloyd v. Supervisors of Elections, 206 Md. 36, 43, 111 A. 2d 379, 382 (1954), where we noted circumstances under which the decision of issues moot as to the parties might be appropriate:
 
[T]he better considered and reasoned cases take the view that only where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest, will there be justified a departure from the general rule and practice of not deciding academic questions.  They hold that if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty[***14] of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Court [**225] may find justification for deciding the issues raised [*529] by a question which has become moot, particularly if all these factors concur with sufficient weight." Id. at 300 n. 18.
 
It is because I believe this case fits squarely within what we said in Reyes and what Judge Hammond said for our predecessors in Lloyd that I would consider this case upon its merits.

   I am concerned lest revenue estimates based upon a hope, rather than an actual belief (there is a difference) may ultimately place the State in as precarious a financial position as it was when Governor Emerson C. Harrington appointed the Goodnow Commission more than 60 years ago. 

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1805,AFL-CIO v. HENRY C. MAYO 
No. 45, September Term, 1977
 
Court of Appeals of Maryland
 
281 Md. 475; 379 A.2d 1223; 1977 Md. LEXIS 608; 97 L.R.R.M.2053

 December  6, 1977, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Childs, J.

DISPOSITION: Judgment affirmed; appellant to pay costs.

CORE TERMS:  qualified privilege, reckless disregard, falsity, punitive damages, defamation, reputation, compensatory damages, time card, supervisor, grievance, vacation, actual injury, mental anguish, presumed, humiliation, plant, card, injury to reputation, labor dispute, jury to find, federal law, defamatory, forfeited, ill-will, defeated, defeat, malice, hatred, First Amendment, matter of law

COUNSEL: Bernard W. Rubenstein, with whom were Carl S. Yaller and Edelman, Levy & Rubenstein, P.A.[***2] on the brief, for appellant.

   John A. Blondell for appellee.

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

OPINIONBY: LEVINE

OPINION: [*475] [**1223] In this case, we again examine the interplay between the Federal Constitution and the law of defamation, this time in the context of a labor dispute. This appeal is from a judgment for $1.00 compensatory damages and $5,000 punitive damages awarded appellee following a jury trial in the Circuit [*476] Court for Anne Arundel County (Childs, J.). We granted certiorari after the Court of Special Appeals affirmed in IBEW, Local 1805 v. Mayo, 35 Md. App. 169, 370 A. 2d 130 (1977). We, too, now affirm.

   The events leading directly to this controversy commenced in October 1973. Appellee was then a supervisor of factory inspection -- and was thus a member of management -- at the Anne Arundel County plant of the Westinghouse Electric Corporation, by whom he had been employed for 23 years.  As such, it was appellee's responsibility to distribute weekly time cards each Friday afternoon to employees under his supervision, and then on the following Monday to [***3]review the completed cards for accuracy by comparing them with the attendance sheet which he had maintained during the prior week.  Among the 33 employees under appellee's supervision was Wilton H. Sparks (Sparks), a member of Local 1805 (the union).

   [**1224] On Friday October 19, 1973, after being absent on the two preceding days, Sparks delivered to appellee his weekly time card on which he had designated Wednesday and Thursday as vacation days, by affixing opposite them the symbol "C," even though he had neither sought nor received prior approval from appellee to take a scheduled vacation on those two days.  On the following Monday, appellee informed Sparks that plant policy prohibited employees from taking unscheduled vacations and that it would be necessary for the time card to reflect voluntary absences on the 17th and 18th.  Sparks stood adamant, however, and refused to change the card. Following a discussion between shop stewards and management personnel, appellee was instructed by his supervisor to alter the time card so as to make it conform to company policy. Before doing so, however, appellee first notified Sparks and his shop steward, as well as the chief steward, [***4] of the proposed action.  Then, appellee marked an "A," denoting voluntary absence, over the "C" which Sparks had originally inserted opposite the 17th and 18th.

   Appellee's action in changing the time card escalated the dispute to the next grievance level under the collective bargaining agreement, which took the form of a written [*477] complaint by Sparks' shop steward charging appellee with "altering or falsifying company documents." Specifically, the complaint alleged that under instructions from his supervisor, appellee "did falsify [the] time card by changing a C absence (vacation day) to an A absence for October 17th and 18th 1973, without employee W. Sparks permission." At the direction of his supervisor, appellee replied to the complaint by denying that the change had constituted a "falsification," claiming instead that he had merely fulfilled his responsibility in the circumstances.

   While the various grievance procedures were being actively pursued, the November 1973 issue of "Intercom," a newspaper published by the union for its 2,000 members, was distributed.  The publication routinely reported pending grievances, which, in this instance, included the following statement[***5] that precipitated this litigation:
 
"Supervisor H. Mayo falsified employee's I.B.M. Weekly Time Card. Is a violation of Company plant rule #11.  Submitted to the second step on 10-31-73, awaiting meeting."
 
Through his supervisors, appellee sought a retraction, but when these efforts proved futile, he filed a libel action against the union and various persons associated with the newspaper. n1

n1 All of the individual defendants were eliminated by a directed verdict at the conclusion of the plaintiff's case.  Thus, the judgment from which this appeal lies was entered only against the union.

   At the trial, appellee, corroborated by testimony from his wife and married daughter, stated:
 
"I was highly upset about the article because my character was good I thought with the company and relations with the people and management, and I just felt like I had publicly been called a crook, and I was upset about it."
 
When asked how this affected him, he replied: "I was up tight, if that word is [***6]all right, and pretty nervous . . . ." He also claimed to have suffered chest pains as a result of the [*478] experience for which he consulted a heart specialist.  Since the episode, his "nerves have been worse" than they were prior to November 1973.  He conceded, however, that he had sustained no damage to his reputation.

   In this Court, as it did in the Court of Special Appeals, appellant urges reversal on two grounds.  First, it contends that the trial court erred by failing to instruct the jury that the union, as a matter of law, enjoyed a qualified privilege in reporting the grievance. Secondly, appellant urges that appellee could not recover compensatory damages because he presented no proof of damage to his reputation; nor, absent a proper award of compensatory damages, could he recover punitive damages.

   [**1225] (1)

   Among the defenses asserted by appellant at trial was that of qualified privilege -- presumably on the theory that members of a labor union have a common interest in communications pertaining to their activities.  See generally Restatement (Second) of Torts § 596, Comment e at 277 (1977); Annot., 60 A.L.R.3d 1041 (1974). Accordingly, the trial[***7] judge instructed the jury upon this defense in some detail, in the course of which he stated:
 
"But you may have or you may find or you may not find that there was a qualified privilege for the union to say what it did in the Intercom, or you may find it went too far.  . . . [A]nd it's up to you to determine whether or not this privilege was exceeded . . . ." (emphasis added).
 
The effect of the italicized language, appellant contends, was to permit the jury to decide not only whether the qualified privilege had been lost or defeated, but whether the privilege existed at all.  The trial court erred, then, appellant argues, since, as we recently observed in Jacron Sales Co. v. Sindorf, 276 Md. 580, 600, 350 A. 2d 688 (1976), the question whether a defamatory communication enjoys a qualified privilege is one of law, the jury's role being limited to a determination of [*479] whether the privilege has been forfeited. n2 Thus, by its instructions, the court erroneously permitted the jury to find that the defendant was not protected by a qualified privilege, rather than decide only whether the plaintiff had sustained the burden of overcoming the privilege[***8] by "prov[ing] that the defendant acted with a reckless disregard for the truth . . . ."

 n2 In responding to the same contention, the Court of Special Appeals stated that the issue was largely one of semantics in light of the correct action of the trial court -- under the evidence -- in submitting to the jury the question whether the privilege had been "exceeded or abused." IBEW, Local 1805 v. Mayo, 35 Md. App. 169, 178, 370 A. 2d 130 (1977).

   The argument advanced by appellant proceeds on the false assumption that appellee was only required to meet the negligence standard adopted by us in Jacron Sales Co. v. Sindorf, 276 Md. at 596-97, in establishing his right to recover for the alleged defamation. There we held that reckless disregard as to truth or falsity is necessary to defeat a qualified privilege; proof of mere negligence will not suffice.  Id. at 599-600. In short, appellant contends that it was prejudiced by the instruction permitting the jury to find no qualified privilege, since, to defeat[***9] such a privilege, appellee could properly have prevailed only by sustaining a more demanding burden than the negligence which he was ostensibly required to prove.

   In our view, however, it is unnecessary to decide whether the trial court erred in permitting the jury to determine the existence of appellant's asserted qualified privilege. Appellant's argument completely overlooks the very theory on which this case was tried, at the union's own insistence.  The defect in appellant's position is that appellee, despite his status as a private plaintiff, actually was required to show more than mere negligent conduct in proving the defamation. Indeed, it was at appellant's own behest -- in the face of stout resistance from appellee -- that the trial court instructed the jury that appellee could recover only if the statement in controversy was published with knowledge of its falsity or with reckless disregard as to whether it was true or false.  In giving the requested instruction, the trial court was apparently cognizant of the Supreme Court holdings in Linn v. Plant Guard Workers, 383 U.S. 53, 65, 86 S. Ct. 657, 15 [*480] L.Ed.2d 582 (1966), and Letter Carriers v. Austin,[***10] 418 U.S. 264, 280-82, 94 S. Ct. 2770, 41 L.Ed.2d 745 (1974), to the effect that the standard of knowing falsity or reckless disregard for truth adopted in New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964), for defamation actions brought by public officials was also applicable to defamatory statements published in labor disputes protected by federal law. n3

n3 Appellant has not contended on appeal that the evidence was legally insufficient to support a verdict of knowing falsity or reckless disregard for truth under the New York Times standard.  At the trial, appellant did present this challenge -- unsuccessfully -- during its motion for directed verdict at the end of the plaintiff's case.  But it failed to renew the motion at the close of all the evidence, and thereby withdrew it.  Maryland Rule 552 b.  Thus, there is no occasion for us to make an independent examination of the record to assure ourselves that the statement published here was not insulated from a libel award by the First Amendment. Letter Carriers v. Austin, 418 U.S. 264, 282, 94 S. Ct. 2770, 41 L.Ed.2d 745 (1974); Greenbelt Pub. Assn. v. Bresler, 398 U.S. 6, 11, 90 S. Ct. 1537, 26 L.Ed.2d 6 (1970), rev'g, 253 Md. 324, 252 A. 2d 755 (1969).

   Nor, since it was in response to appellant's own request that the trial court applied the New York Times standard to this case, do we review the ruling that the defamatory statement here arose out of a labor dispute protected by federal law.

[***11]

   [**1226] The net effect of the jury verdict, in light of the requirement imposed by the court's instructions, was to establish that appellant had published the statement either with knowledge of its falsity or with reckless disregard as to whether it was true or false.  Prior to the advent of New York Times, Maryland had followed the common law rule that a qualified privilege could be forfeited by "express malice" or "actual malice," variously defined in our cases as lack of good faith, ill-will, hostility or hatred. Evening News Co. v. Bowie, 154 Md. 604, 611, 141 A. 416 (1928); Deckelman v. Lake, 149 Md. 533, 536, 131 A. 762 (1926). But more recently in Stevenson v. Baltimore Club, 250 Md. 482, 486-87, 243 A. 2d 533 (1968), we took a modified view of the requirement:

   "The privilege may be lost, however, if the plaintiff in a defamation case can show malice, which in this context means not hatred or spite but rather a reckless disregard of truth, the use of unnecessarily abusive language, or other circumstances which would support a conclusion that [*481] the defendant acted in an ill-tempered manner or was motivated by ill-will." (emphasis added). [***12]
 
Accord, Jacron Sales Co. v. Sindorf, 276 Md. at 600; Orrison v. Vance, 262 Md. 285, 295, 277 A. 2d 573 (1971).

   Consequently, even assuming that the trial court failed to instruct the jury with the necessary precision that a qualified privilege existed as a matter of law, appellant suffered no harm, since the verdict reflected a finding that appellee defeated the privilege, in any event, by proving knowing falsity or reckless disregard of truth.

   (2)

   What we have said is largely dispositive of appellant's remaining contentions: That no libel occurred because appellee failed to prove any damage to his reputation; that absent such damage, he cannot, in conformity with the New York Times standard, recover compensatory damages despite his proof of humiliation, embarrassment, and mental anguish; and that lacking entitlement to compensatory damages, appellee cannot recover punitive damages.

   Clearly, the Federal Constitution presented no barrier to the jury award in this case.  In Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court held that in cases where the New York Times test of knowing falsity or reckless[***13] disregard for truth is not met, provided a standard of negligence is satisfied, states may permit recovery by private persons for "actual injury," but not presumed or punitive damages. Such actual injury is not confined to out-of-pocket loss, but may include "impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering." Id. Where, however, the New York Times standard is met, as it was here, presumed and punitive damages may be awarded. See General Motors Corp. v. Piskor, 277 Md. 165, 174-75, 352 A. 2d 810 (1976). More recently, in Time, Inc. v. Firestone, 424 U.S. 448, 460, 96 S. Ct. 958, 47 L.Ed.2d 154 (1976), a contention closely resembling that made here was advanced in the context of proof that did not meet the New York Times [*482] test; nevertheless the Court made it clear that compensatory damages could be awarded despite the absence of injury to reputation, provided the [**1227] Gertz test of negligence was satisfied.  Clearly, if the absence of injury to reputation will not prevent an award of compensatory damages where mere negligence is established, it will not do so where, as here, [***14] the New York Times standard of malice is met.

   As it happened, appellee presented evidence of mental anguish, embarrassment and humiliation. In any event, because appellee met the New York Times test of knowing falsity or reckless disregard of truth, the First Amendment offered no obstacle to the recovery of presumed and punitive damages. Appellee could then, consistent with the Federal Constitution, recover both compensatory and punitive damages absent proof of actual damages of any kind. n4 We hold, therefore, that he may recover such damages despite the absence of any injury to his reputation. 

n4 Appellant's sole contention here is that federal constitutional law precluded the damages awarded appellee, absent proof of actual injury to his reputation. Since the union does not attempt to argue that, constitutional considerations aside, state law would nevertheless have barred the damage award returned here, we do not reach that question.

   Judgment affirmed; appellant to pay costs. 

THOMAS McCARTHY v. BOARD OF EDUCATION OF ANNE ARUNDEL COUNTYet al. 
No. 35, September Term, 1977
 
Court of Appeals of Maryland
 
280 Md. 634; 374 A.2d 1135; 1977 Md. LEXIS 873

 July  7, 1977, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment affirmed; appellant to pay the costs.

CORE TERMS:  public schools, transportation, board of education, county council, elementary, regulation, governor, educational, attending, ordinance, pupil, county board, boards of education, prescribed, public education, home rule, duties, codification, teacher, bylaws, occupy, budget, local legislation, educational institution, public school, state aid, preemption, noncollegiate, revision, election

COUNSEL: Theodore G. Bloom with whom were Goodman & Bloom, P.A. on the brief, for appellant.

   Robert C. Wilcox, Assistant County Solicitor, with whom was Michael R. Roblyer, County Solicitor, on the brief, for appellee Anne Arundel County, Maryland.  Thomas J. Wohlgemuth for appellee Board of Education of Anne Arundel County.

JUDGES: Singley, Smith, Digges, Levine, Eldridge and Orth, JJ.  Smith, J., delivered the opinion of the Court.

OPINIONBY: SMITH

OPINION: [*635] [**1136] We shall here sustain the holding[***3] of a trial judge (Childs, J.) that Anne Arundel County Code (1967) §§ 7-300 and 301 relative to transportation of children attending schools which "do not receive state aid" were invalid.

   The sections in question provide:
 
"Sec. 7-300. Use of buses by children not attending public schools.
 
   "Whenever there are children attending schools, which schools do not receive state aid, except such schools as are operated for profit in whole or in part, the board of education of the county shall make rules and contracts for the transportation of such children to and from such schools; provided, however, that the transportation benefits accorded children under this section shall be governed by the same rules and standards applicable to and shall be neither more nor less than the transportation benefits accorded public school students by the board of education of the county."
 
"Sec. 7-301. Tax to be levied for bus operation; charges for use.

   "The county council shall levy and appropriate annually sufficient funds to defray any cost [*636] incurred by it in carrying into effect the provisions of the preceding section and for the establishment of new bus routes for [***4]transporting children to and from the public schools of the county, and schools other than public schools which schools do not receive state aid except such schools as are operated for profit in whole or in part, whenever such routes are necessary to effectuate the provisions of the preceding section. The transportation of children to and from schools other than public schools which schools do not receive state aid except such schools as are operated for profit in whole or in part shall be upon such reasonable terms and conditions as the board of education may from time to time determine, but in no event shall the amount charged children attending such schools for utilizing such buses or other conveyance be greater or less than the amount charged children attending the public schools for the same kind of transportation."

   Chapter 75 of the Acts of the Extraordinary Session of 1947 provided for transportation of children who attend parochial schools in Anne Arundel County "not receiv[ing] State aid" residing along highways on which regular bus service was provided by the Board of Education for transportation of children to and from public schools. The county commissioners were[***5] authorized to levy and appropriate sufficient funds to defray the cost of this service.  These provisions became Anne Arundel County Code (1957), Art. 2 of the Code of Public Local Laws of Maryland, §§ 18-1 and 2.  The General Assembly enacted Chapter 854 of the Acts of 1963 materially amending those sections in basically the language of §§ 7-300 and 301.  This act was petitioned to referendum and defeated by the voters of Anne Arundel County at the 1964 general election. Another similar statute was enacted by the General Assembly as Chapter 732 of the Acts of 1967. It was to take effect July 1, 1969, if approved by a referendum at the general election of 1968.  It, too, was defeated by the people.

   [*637] Anne Arundel County Charter § 1007 states that "the County Council shall provide for a compilation and codification of all public local laws of the County, all ordinances of the County Council and all resolutions heretofore adopted by the County Commissioners having the force and effect of law . . . ." Pursuant to that authority the County Council in 1967 adopted Bill No. 18-67, an ordinance "to adopt a revision and codification of the laws of [**1137] Anne Arundel County" [***6] and repealing laws not included within that code with certain exceptions.  The code was appended to the ordinance. Sections 7-300 and 301 were in that code and give their source line as Chapter 854 of the Acts of 1963.

   Appellant, Thomas McCarthy, "on his own behalf and on behalf of all others similarly situated," brought a declaratory judgment action.  He said that he had four children attending a "non-public, parochial school, [which] does not receive State aid, and is not operated for profit in whole or in part." He sought a declaratory judgment as to his rights under §§ 7-300 and 301 and "injunctive relief to compel the defendants to carry out and perform their duties in respect to said laws and damages for their past failure to do so." Named as parties defendant were the Board of Education of Anne Arundel County (the Board of Education), the members of the County Council of Anne Arunel County "in their official capacity," the County Executive of Anne Arundel County "in his official capacity," and Anne Arundel County (the County).

   The trial judge found that the provisions in question "were not legally adopted prior to the enactment of 18-67 [and thus] the County Council was [***7]without the power or authority to enact new legislation through codification," pointing out that "[i]f this were not so, the process of codification would develop into a nightmarish process, involving the necessity for all manner of security provisions lest one or more special interest groups might circuitously succeed in surreptitiously inserting within the codification material legislation which might never survive the strictures of Section 307 [of the Anne Arundel County Charter] or the [*638] referendum process now specifically declared to apply to home rule legislation."

   A prompt appeal was entered to the Court of Special Appeals.  Because of the public importance of the question presented we granted the writ of certiorari prior to consideration of the case by that court.

   The County and the Board of Education present three different arguments to us as to why the trial judge was correct, (1) that the sections are a nullity because they were never intended to become law nor were they validly enacted into law as prescribed by the Anne Arundel County Charter, (2) that the County has no authority under the express powers act to enact such legislation, and (3) the field of[***8] education has been preempted by the General Assembly, thus rendering local enactments affecting boards of education void.  Obviously, if we were to agree with them on any one of these points the judgment would be affirmed.  We prefer to place our decision on the doctrine of preemption rather than on one of the other two grounds.  Our preference should not be interpreted, however, as an intimation that we are of the opinion that the decision of the trial judge could not be sustained on either of those other two grounds.

   If there has been but little application of the preemption doctrine in Maryland, it must be remembered that it has been only in comparatively recent years that any subdivision in Maryland, other than Baltimore City, has had general legislative power.  This authority came with the adoption of Art. XI-A of the Maryland Constitution by the people in 1915.  See State v. Stewart, 152 Md. 419, 422, 137 A. 39 (1927), for an explanation of the reason for adopting home rule. Such legislative power does not reside in Baltimore City or a county unless it adopts home rule. Baltimore City adopted a charter soon after the adoption of the home rule amendment but it was not until[***9] 1948 that home rule came to the first of the counties, Montgomery.

   In City of Baltimore v. Sitnick and Firey, 254 Md. 303, 255 A. 2d 376 (1969), this Court, in a comprehensive opinion by Judge Finan, set forth the limitations on the concurrent power of local governments to supplement state legislation. [*639]We recognized there three grounds on which otherwise valid local legislation might be invalidated because of State legislation concerning the same matter: (1) ordinances which conflict with public general law, (2) ordinances which deal with matters which are part of an entire subject matter on which the General Assembly has expressly reserved unto [**1138] itself the right to legislate, and (3) ordinances which deal with an area in which the General Assembly has acted with such force that an intent to occupy the entire field must be implied.  In Sitnick Judge Finan said for the Court:
 
"[W]e wish it understood that there may be times when the legislature may so forcibly express its intent to occupy a specific field of regulation that the acceptance of the doctrine of pre-emption by occupation is compelled . . . ." Id. at 323.

   We had occasion[***10] in County Council v. Montgomery Ass'n, 274 Md. 52, 325 A. 2d 112, 333 A. 2d 596 (1974), to apply this latter theory of preemption. In that case Montgomery County had enacted three ordinances designed to regulate the campaign finance practices of candidates for county executive and the county council in that county.  Judge Eldridge reviewed for the Court the constitutional and statutory provisions relative to elections which "demonstrate[d] that the General Assembly is obligated to enact and has enacted a comprehensive plan for the conduct of elections in Maryland," including "detailed provisions governing the financing of election campaigns in this state." We said that this "reveal[ed] the purpose of the General Assembly to occupy the field of election finances."

   Maryland's concern with educational matters goes back to colonial times. See, e.g., B. Steiner, History of Education in Maryland 22 (1894), referring to "[t]he act of 1696 [which] created a corporation of not exceeding 20 persons by the name of the rectors, governors, trustees, and visitors of the free schools of Maryland . . . ." This interest in education continued after the Revolution as demonstrated[***11] by the granting of charters to Washington College and St. John's College by Chapter 8 of the Acts of 1782 and Chapter 37 of [*640] the Acts of 1784, respectively, followed by an attempt to unite them as the University of Maryland.  See Steiner, op. cit. 69-71 and St. John's College v. State, 15 Md. 330 (1860).

   The General Assembly enacted Chapter 162 of the Acts of 1825 providing for public instruction throughout the State in primary schools.  This was to be effective, however, only in those counties in which by a majority vote the people declared in its favor.  Special provision was made for Baltimore City, which provision brought the confrontation in Schl. Cms. of Balt. v. St. Bd. of Edn., 26 Md. 505 (1867), resulting from the adoption of the Constitution of 1864 and the subsequent enactment of Chapter 160 of the Acts of 1865.  Article VIII of the Constitution of 1864 provided for the appointment of a State Superintendent of Public Instruction, a State Board of Education, and such school commissioners in the counties as the State Superintendent of Public Instruction might deem necessary.  The General Assembly was mandated "at its first session after the adoption[***12] of th[at] Constitution [to] provide a uniform system of Free Public Schools, by which a school sh[ould] be kept open and supported free of expense for tuition in each school district, for at least six months in each year . . . ." It was pursuant to that mandate that Chapter 160 of the Acts of 1865 was passed.  It provided for a uniform system of free public schools, a State Board of Education, a State Superintendent, etc. n1 Sch. Coms. of Balt. held that Baltimore City was embraced within the system of public schools established by the 1865 act and that this law vested in the State Board of Education the exclusive power and authority to select and prescribe the textbooks to be used in the public schools of that city.  Accordingly, a writ of mandamus was directed to issue commanding the School Commissioners of [**1139]Baltimore City to use in its schools such textbooks as had been or might be prescribed by the State Board of Education as the uniform series of textbooks to be used in the schools of Maryland.

n1 One may draw the inference that these provisions were not popular in some quarters.  See the comments and extended debate relative to the education provisions in our present Constitution as reported in P. Perlman, Debates of the Maryland Constitutional Convention of 1867, 198-203, 243-48, 251-57 (1923).  The Constitutional Convention of 1867 convened on May 8, 1867.  Schl. Coms. of Balt. v. St. Bd. of Edn., 26 Md. 505 (1867), was decided on March 12, 1867.  It may have provided fire for the debate, although that decision does not appear to have been mentioned in the course of the debate.

[***13]

   [*641] The present provisions of the Maryland Constitution relative to public education are also found in Art. VIII. Sec. 1 directed the General Assembly at its first session after the adoption of the Constitution of 1867 to "establish throughout the State a thorough and efficient System of Free Public Schools" and to "provide by taxation, or otherwise, for their maintenance." By § 2 the system as then constituted was to remain in effect until the end of the first session of the General Assembly, after which it should "then expire; except so far as adopted, or continued by the General Assembly." Sec. 3 provides, "The School Fund of the State shall be kept inviolate, and appropriated only to the purposes of Education." The provisions of Art. VIII are precisely in the form originally submitted by the Committee upon Education to the Constitutional Convention of 1867.  See Proceedings Maryland State Convention 139 (1867), although there were a number of attempts to change this language, particularly relative to Baltimore City.  See P. Perlman, Debates of the Maryland Constitutional Convention of 1867, at 198-203, 243-48, 251-57 (1923).  The General Assembly responded[***14] by enacting Chapter 407 of the Acts of 1868 creating a new article entitled "Public Education." It provided in comprehensive form for education in the State including qualifications of teachers, a specification that there should be a State tax of 10 cents on each $100 of assessable value for school purposes, and a provision that:
 
"In every district school there shall be taught Orthography, Reading, Writing, English Grammar, Geography, Arithmetic, History of the United States, the Constitution of the United States, the Constitution of the State of Maryland and Good Behavior.  Algebra, Book-keeping, Natural Philosophy, Vocal Music, Drawing, Physiology, the Laws of Health and of Domestic Economy shall also [*642] be taught whenever the School District Board shall deem it expedient."
 
Revision was made by Chapter 311 of the Acts of 1870 which, among other things, provided for a Board of State School Commissioners.  Further revision came by Chapter 377 of the Acts of 1872 which included among its very comprehensive provisions the progenitor of present Code (1957, 1975 Repl. Vol.) Art. 77, § 38 providing that county boards of education are "declared to be a body politic [***15]and corporate by the name and style of the Board of Education of . . . County," the terminology used in 1872 having been "Board of County School Commissioners."

   In Clauss v. Board of Education, 181 Md. 513, 30 A. 2d 779 (1943), Judge Ogle Marbury observed for the Court:
 
"[Maryland Code (1939)] Article [77] was passed in substantially its present form by Chapter 506 of the Acts of 1916.  There have, of course, been amendments added since.  The Act of 1916 was passed as a result of the report of a commission authorized by Chapter 844 of the Acts of 1914.  This commission requested the General Education Board to undertake a survey of public education in this State.  This was done, and a most thorough and exhaustive report was filed, prepared under the direction of Abraham Flexner and Dr. Frank P. Bachman. This report was submitted to the Governor, transmitted by him to the Legislature of 1916, and as a result, the present system of education was adopted." Id. at 518.
 
See A. Flexner and F. Bachman, Public Education in Maryland (1916).  Survey of the educational system from the State level has continued.  See, e.g., Chapter 610 of the Acts of 1939[***16] providing for "a survey of the public elementary and high schools and the State Teachers' Colleges of the State of Maryland" and 1941 Survey of the Maryland Public Schools and Teachers Colleges (1941).

   The Maryland laws relative to public education were extensively revised by Chapter [**1140] 405 of the Acts of 1969 and [*643] are now found in Code (1957, 1975 Repl. Vol., 1976 Cum. Supp.) Art. 77.  It begins with § 1 providing:

   "There shall be throughout the State of Maryland a general system of free public schools, according to the provisions of this article.  'Public schools' as used in this article shall mean schools at the elementary and secondary level."
 
Matters of elementary and secondary education affecting the State and the general care and supervision of public elementary and secondary education are entrusted to the State Department of Education, the head of which is the State Board of Education. It is composed of nine persons appointed for terms of five years.  The State Superintendent of Schools is "the chief executive, the secretary, and the treasurer of the State Board." That board is required by § 6 to "determine the elementary and secondary[***17] educational policies of this State" and to "adopt bylaws, rules, and regulations for the administration of the public school system which, when adopted and published, have the force of law." It is to "conduct, with and on the advice of the State Superintendent of Schools, investigations relating to the educational needs of the State and the means of improving educational conditions . . . ." It also is to "establish, upon the recommendation of the State Superintendent of Schools, standards of, and guides for, the planning and construction of school building projects." By § 10 it is mandated "from time to time [to] adopt bylaws, rules and regulations for the ratio of professional staff members to pupils enrolled in the elementary and high schools, or any combination of grades thereof . . . ."
 
   Under § 11 (c) "[t]he State Board [is], with the advice of the State Superintendent of Schools, [to] prescribe minimum requirements for issuing certificates and diplomas by the public and private noncollegiate educational institutions in Maryland." "Noncollegiate educational institution" is said by § 11 (a) to mean "a school or other institution that offers an educational program but[***18] is not an institution of postsecondary education, as defined in Article [*644] 77A, § 32A (a)." The latter term is defined as "a school or other institution that offers an educational program within the State for persons 16 years of age or older who have graduated from or left elementary or secondary school.  It does not include an adult education, evening high school, or high school equivalence program conducted by a public school system of the State." Every noncollegiate educational institution, other than "an institution operated by a bona fide church organization, including the Amish and Mennonite church parochial schools" is required by § 11 (d) to "obtain a certificate of approval from the Board in order to commence or continue to operate or function in this State." Under certain specified procedures the State Board may direct a noncollegiate educational institution to cease operations if found not to be in compliance with the State Board's conditions or standards.  Under § 13 any nonpublic secondary school or collegiate institution, including those operated by bona fide church organizations, prior to discontinuance of operations is required to "cause to be filed with[***19] the State Superintendent of Schools the original or legible true copies of all essential records pertaining to the academic achievements of all former students who attended the said school."

   Sec. 14 requires "all private educational associations, corporations, or institutions to report annually . . . as to enrollment and courses of study on such forms as the State Board of Education may provide."

   The "basic policy and guidelines for the program of instruction for the public schools" by § 15 is to be prescribed by the State Board of Education "with and on the advice of the State Superintendent of Schools . . . ." Likewise, under § 16 it prescribes "bylaws, rules and regulations, for the certification of teachers and other professional personnel . . . ." It also specifies "the required items of information to be recorded by the Board of School Commissioners of Baltimore City, the county boards of education, school officials, and teachers" and all educational records to be [**1141] kept. Reports are to be made using forms prescribed by the State Board.

   [*645] By § 18 the State Board is authorized "in its discretion [to] prepare and publish annually a list of approved[***20] colleges and universities and [to] determine by bylaws the standards for said approval."

   The State Board is directed by § 19 to "transmit to the Governor an annual State public school budget including, subject to existing laws, the appropriation for the State Department of Education; State aid to the counties and Baltimore City for current expenses and for the construction of school buildings; and necessary costs of transporting pupils to public schools as approved by the State Superintendent of Schools." This budget is to be certified to by the State Superintendent prior to transmittal to the Governor. Under Maryland Constitution Art. III, § 52 (11) this estimate is mandated to "be included in the Budget [transmitted by the Governor to the General Assembly] without revision." See Md. Act. for Foster Child. v. State, 279 Md. 133, 141, 367 A. 2d 491 (1977). Moreover, by Constitution Art. III, § 52 (6) the General Assembly is forbidden to amend the budget bill "so as to affect . . . the provisions made by the laws of the State for the establishment and maintenance of a system of public schools . . . ."

   The State Board of Education is required to submit a report to the Governor [***21]each year relative to "support, conditions, progress, and needs of education throughout the State" and to recommend to the Governor and the General Assembly "such additional legislation, or changes in existing legislation, as may be deemed desirable."

   The qualifications and powers of the State Superintendent of Schools are set forth in Art. 77.  Among other things, he is empowered by § 24 "to cause the State Comptroller, through written notification, to withhold in case of violation of any of the provisions of [Art. 77] or of the bylaws enacted and published by the State Board of Education, any part or all of any appropriation made by the General Assembly to any educational institution or to withhold any part or all of any payment to county school boards from funds budgeted by the State of Maryland . . . ."

   [*646] All proposals for the purchase of ground, school sites, or buildings; the sale of the same; plans and specifications for the remodeling of school buildings in excess of $100,000; plans and specifications for the construction of new buildings, and change orders in excess of $25,000 for the remodeling, restoration, or construction of school buildings are all made [***22]subject to the approval of the State Superintendent of Schools. Moreover, if construction is "done by contract, [then under § 26] the contract shall be invalid and of no effect without the written approval of the State Superintendent of Schools."

   The authority of the State Superintendent is extended under § 28 to approval of "any program of instruction offered by any State institution under the supervision of the Department of Juvenile Services, Department of Correctional Services, and the Department of Mental Hygiene . . . ."

   Art. 77, § 34 states that "[e]ducational matters affecting the counties shall be under the control of a county board of education in each county," with "[t]he geographical boundaries of the county school systems [to] be coterminous with the geographical boundaries of the respective counties . . . ." Provision is made in Art. 77 for the manner of selection of county board of education members, with variance between counties as to number of members, the method of selection, and the length of term of office.  By § 35 (d) in Anne Arundel County "there shall be an additional voting member of the Board of Education who shall be a regularly enrolled senior[***23] year student of good character and in good standing from an Anne Arundel County public high school." Each county board is to select a county superintendent of schools who "shall be executive officer, the secretary, and treasurer of the county board of education, but shall not be deemed a public officer under the Constitution or the laws of this State."

   [**1142] The duties of the county boards are prescribed by this article. These include a determination of "the geographical attendance areas for all . . . schools established" within the jurisdiction of each county board. Provision is made in § 47 [*647] that "[w]hen the county boards of education, with the approval of the State Superintendent of Schools, shall determine that grounds, school sites, or buildings are no longer needed for school purposes, they shall be transferred by the county boards to the county commissioners or county council and may be utilized, sold, leased, or otherwise disposed of (except by gift) by the county commissioners or county council . . . ." The right of eminent domain is granted by § 51 to county boards of education. In those instances in which schools may be located "in one county . [***24] . . but near the dividing line of an adjoining county" it is stated in § 52 that they "shall be free to the children of the adjoining county to the extent [t]hereinafter provided," with further provision made for such situation.  A county board of education is granted power to consolidate schools "wherever in its judgment it is practicable."

   Art. 77 provides relative to school terms, hours and days that schools are to be open and school holidays.  The General Assembly has further provided in Art. 77 relative to vaccination of school children; a school health program; hearing and vision screening tests; that workers in schools must be free from tuberculosis in a communicable stage; a program of physical education; a program of safety education; a program of drug education; a requirement for protective eye devices; driver education; the number of fire drills (at least 10) to be conducted during each school year; compulsory school attendance; reports of absences and maladjustment; provision for suspension and expulsion; searches of students and schools; use of school property for other than school purposes; that "[p]rincipals, teachers, and school security guards in every public [***25]elementary and secondary school . . . may intervene in any fight or physical struggle which takes place in their presence in school buildings or on school grounds, between or among students or any other persons"; corporal punishment in certain counties, and the duties of boards of education relative to handicapped children.

   The above is but a partial recital of the legislative involvement of the General Assembly in education in [*648] Maryland.  No summary of the State's involvement would be anywhere near complete, however, without mention of Code (1957, 1975 Repl. Vol., 1976 Cum. Supp.) Art. 77, § 130A, originally enacted by Chapter 624 of the Acts of 1971, under which the State is obligated to "pay the costs in excess of available federal funds of all public school construction projects and public school capital improvements in the counties and Baltimore City which have been approved by the Board of Public Works and for which the contracts have been executed on or after July 1, 1971."

   In the field of transportation the State not only has paid the costs within prescribed limits, but under the authority of Art. 77, §§ 19 and 99 it has promulgated policies governing approval[***26] of pupil transportation costs for inclusion in the minimum program.  See, e.g., 3:16 Md. R. 854-55 (August 4, 1976), 3:12 Md. R. 671-76 (June 9, 1976), 2:24 Md. R. 1482-83 (October 29, 1975), and 2:20 Md. R. 1312-16 (September 3, 1975).  The Motor Vehicle Administration has adopted a regulation governing the transportation of school children.  See 2:29 Md. R. 1741 (December 24, 1975) and 2:24 Md. R. 1506 (October 29, 1975).  Moreover, "[t]he Motor Vehicle Administration by and with the advice of the State Department of Education" is directed by Code (1957, 1970 Repl. Vol., 1976 Cum. Supp.) Art. 66 1/2, § 15-109 (a) to "adopt and enforce regulations not inconsistent with th[at] article to govern the safe operation of all school vehicles." Art. 66 1/2, § 11-1118 specifies the manner in which school buses are to be refueled; that the driver of a bus is to be in charge "except in the presence of a teacher"; the number of standing pupils who may be transported; circumstances in which pupils are not permitted to stand; that pupils are not "permitted to operate the front door [**1143] opening mechanism except in times of actual emergency"; certain requirements as to methods[***27] of operation, and that no pupil shall be required to sit on the floor of any school bus.

   In Clauss v. Board of Education, supra, 181 Md. 513, this Court was faced with the question of whether an employee of the Board of Education of Anne Arundel County engaged in extra-hazardous work was entitled to compensation under [*649] the workmen's compensation law for accidental personal injury arising out of and in the course of his employment.  The appellee there, in an effort to avoid such liability, pointed to Constitution Art. VIII, § 3 providing that "[t]he School Fund of the State shall be kept inviolate, and appropriated only to the purposes of education." Judge Ogle Marbury said for the Court in that case:

   "The meaning of the Constitution is not restricted to the meaning of particular words employed as they were understood at the time of its adoption. It is not to be supposed that the framers of the Constitution of 1867 did not expect the system of education then in force to be changed or improved.  They could not, of course, foresee what changes were to come, so they wisely did not attempt to define what they meant by education.  They left that to be interpreted[***28] in the light of conditions at any given time when such a question should arise.  Education in 1867, as we have shown, did not include the employment of repair men for heating systems in public schools. Education in 1943 does include such employment, because that is the only way the kind of schools now found necessary for the education of the children of the State can be made usable." Id. at 523.

   Vast numbers of children are transported to schools in buses today.  Schools have become larger and larger in size with the consolidation of schools.  The importance of transportation as an element in education has been recognized by the mandate of the General Assembly that the cost of transporting children to the public schools be borne by the State.  Thus, under the authority of Clauss, we have no difficulty in concluding that such transportation is an integral part of education as we know it today.

   In Bd. of Ed. v. Montgomery County, 237 Md. 191, 197, 205 A. 2d 202 (1964), our predecessors specifically held that a county "board of education is not a part of the executive [*650] branch of the county government nor an agency under its control," adding:
 
"It is[***29] an agency financed wholly or in part by county funds, but, like bi-county commissions such as the Maryland-National Capitol Park and Planning Commission and the Washington Suburban Sanitary Commission, it is not subject to the charter budgetary requirements.  Montgomery County v. Yost, 223 Md. 150, 162 A. 2d 462 (1960). The State Board of Education has important supervisory powers over the local boards.  Wilson v. Board of Education, 234 Md. 561, 200 A. 2d 67 (1964); Zantzinger v. Manning, 123 Md. 169, 90 Atl. 839 (1914); see also School Com. of Car. Co. v. Breeding, 126 Md. 83, 94 Atl. 328 (1915)." Id. at 197.

   In the recent case of Board v. John K. Ruff, Inc., 278 Md. 580, 366 A. 2d 360 (1976), we were concerned with the doctrine of sovereign immunity as it applied to trustees of a community college.  We quoted at page 586 from Williams v. Fitzhugh, 147 Md. 384, 128 A. 137 (1925):

   "Public education is a highly important interest of the State government.  In the promotion of that interest the State is acting through an agency which the Legislature created for that purpose and to which broad administrative powers have been delegated.  In performing[***30] its functions the State Board of Education is representing and exerting the State's authority.  As a governmental agency of the State it shares the immunity from suit to which the State itself is entitled, in the absence of any legislative waiver of that exemption." Id. at 386.
 
[**1144] n Bd. of Education v. Alcrymat Corp., 258 Md. 508, 266 A. 2d 349 (1970), there had been a failure to plead governmental immunity on behalf of the Charles County Board of Education.  We held it immune from suit, nevertheless.

   This case represents an excellent example of what the [*651] Court had in mind in City of Baltimore v. Sitnick & Firey, supra, 254 Md. 303, 323, when it referred to the fact that the General Assembly might "so forcibly express its intent to occupy a specific field of regulation that the acceptance of the doctrine of preemption by occupation is compelled . . . ." Our recital of legislation by the State in the field of education demonstrates the occupation of that field by the State.  We conclude, therefore, that the County Council of Anne Arundel County was without power to legislate in this field and to place additional duties upon a State agency, [***31] the Board of Education of Anne Arundel County.

   Judgment affirmed; appellant to pay the costs. 

EDWARD W. SULLIVAN et ux. v. WILLIAM E. DIXON, P.A. 
No. 132, September Term, 1976
 
Court of Appeals of Maryland
 
280 Md. 444; 373 A.2d 1245; 1977 Md. LEXIS 859

 June  8, 1977, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Childs, J.

DISPOSITION: Judgment of the Court of Special Appeals vacated and case remanded to that court with directions that it affirm the judgment of the Circuit Court for Anne Arundel County.  Costs to be paid by the petitioners.

CORE TERMS:  professional service, conveyance, specific performance, personal property, mortgage, ownership, invest, seller, real estate, second mortgage, deed, present action, fraudulent, mortgagor, settlement, mortgagee, decree, stocks, buyer's, Tax Reform Act, first mortgage, unenforceable, engaging, preferential treatment, fraudulent conveyance, valid consideration, fair consideration, reasonable doubt, burden of proof, actual fraud

COUNSEL: Henry L. Conway, Jr., for appellants.

   Robert W. Warfield for appellee.

JUDGES: Singley, Smith, Digges, Levine, Eldridge and Orth, JJ.  Digges, J., delivered the opinion of the Court.

OPINIONBY: DIGGES

OPINION: [*445] [**1246] The case before us involves the enforceability of a real estate contract which is challenged on grounds that title to the property is tainted by a prior fraudulent conveyance, and that the seller, a professional service corporation, possesses no power to convey the land. Concluding that the buyer's refusal to comply with the agreement was legally unwarranted, we shall affirm the judgment of the chancellor which granted specific performance to the seller.

   The disputed contract was executed in the summer of 1975; however, in view of the aforementioned contentions, we must relate several earlier incidents affecting the property[***4] which is the subject of the present action -- Lot 9, Bodkin Plains, Anne Arundel County, Maryland.  In February 1973, respondent William E. Dixon, P.A., a professional corporation formed by its namesake for the purpose of practicing law, made a second mortgage loan of $16,500 to F.A., Inc., secured by this property.  The [*446] uncontradicted evidence discloses that F.A., Inc., a corporation formed for the purpose of developing a number of lots which it owned in Bodkin Plains, commenced construction of a residence on one of them, Lot 9, but was unable to complete the building when it encountered financial difficulties.  As a result of the company's inability to pay its [**1247] debts, creditors of F.A., Inc. filed three suits in the District Court of Maryland, and on May 6, 1974, process was served on its president, then the same William E. Dixon whose professional corporation had previously made the second mortgage loan to F.A., Inc.  Becoming aware that the property might soon be encumbered by judgment liens, the respondent on May 20, 1974, took a deed to the lot in lieu of foreclosure and in satisfaction of the $4,000 outstanding balance on its second mortgage. At the [***5]time William E. Dixon, P.A. took title to Lot 9, it was subject to a first deed of trust on which the balance was $12,675; however, the suits filed against F.A., Inc. were not reduced to judgments until June 14 or recorded in the notice of lien docket until June 20, several weeks after the respondent received its deed to the property.

   Sometime during the ensuing year, the respondent completed construction of the house on Lot 9 at a cost undisclosed by the record, and on August 18, 1975, petitioners Edward W. and Elizabeth S. Sullivan contracted to buy the property for $61,900, with settlement to be on or before September 5, 1975.  Settlement did not occur by that time, however, and on September 22, the respondent notified the Sullivans that if the sale was not consummated within five days legal action would be taken.  Nonetheless, the petitioners refused to complete the transaction on the grounds that the house was not finished in accordance with the contract and that an outstanding judgment against Dixon individually (not William E. Dixon, P.A.) constituted a flaw in the title. n1

n1 In fact, the record discloses that, unbeknownst to the seller, the petitioners had purchased another dwelling on September 12, 1975.

[***6]

   The respondent, as promised, filed a bill of complaint for specific performance of the contract, and following a trial, [*447] the Circuit Court for Anne Arundel County (Childs, J.) entered a decree on July 19, 1976, granting the seller relief which included specific performance and damages of $1,566.81. n2 In addition, the decree provided that if the Sullivans failed to consummate the sale within thirty days, the property was to be sold by a court-appointed trustee at the risk and expense of the buyers. The Sullivans noted an appeal to the Court of Special Appeals, but did not file a supersedeas bond to stay the proceedings, see Md. Rule 1017; consequently, the lot was sold at a judicial sale on September 27, 1976.  The property was purchased at a price of $57,000 by Edward W. Sullivan, one of the petitioners, who concededly resold the property for $67,250 on November 2 to a third party not involved in the present action. Upon learning of this resale, the respondent moved to dismiss the petitioners' appeal on the ground that it had been rendered moot.  The Court of Special Appeals, by unreported order of November 12, 1976, dismissed the appeal because it considered[***7] that some parts of the case were mooted by the public sale, and that the remaining aspects were premature under Maryland Rule 605 a.  We granted certiorari.  Concluding (1) that the trial court's order was not appealed prematurely since it adjudicated all the claims in the present action, (2) that it is preferable to reach an issue of first impression rather than the mootness question, and (3) that the circuit court correctly decided the merits of the case in favor of the respondent, we shall vacate the order of the Court of Special Appeals and affirm the judgment of the trial court.

n2 The court arrived at the damage figure by finding that while the respondent proved damages of $3,416.81, it also showed mitigation to the extent of $1,850.00, for rents received.

   Before this Court, the petitioners raised two defenses to specific enforcement of the contract: (1) that the property was unmarketable in September 1975, because the conveyance from F. A., Inc. to the respondent in May 1974 was fraudulent; and (2) that, [***8] because a professional corporation cannot invest in property for a purpose not necessary for the performance of the service, the respondent [*448] never acquired title to Lot 9 and therefore had nothing to convey in 1975.  We reject both contentions. n3

n3 The Sullivans have abandoned their other contentions made at trial, that a judgment against Dixon individually constituted a defect in the title, and that the seller failed to perform its part of the contract.  In light of the result we reach, we need not consider the respondent's assertion that the petitioners are estopped from proceeding with the case because they accepted the benefits of the trial court's decree by purchasing at the trustee's sale.

   [**1248] With respect to the first point, the Sullivans seemingly suggest the following syllogism: the respondent knowingly participated in a conveyance which was fraudulent as to present and future creditors of F. A., Inc.; because there are three outstanding judgment liens against F. A., Inc., creditors [***9]holding these liens may, at some time in the future, initiate suit to have the conveyance from F. A., Inc. to the respondent, and from the respondent to the petitioners, set aside; such a suit would be successful inasmuch as the Sullivans had at least constructive knowledge of the fraud at the time of their contract to buy Lot 9 in August 1975; and therefore the property was unmarketable because of threats to its title.  Even assuming, however, that the Sullivans (1) have standing to assert in essence the potential claims of F.A., Inc.'s creditors, (2) acquired knowledge of F.A., Inc.'s insolvency from the deed of that corporation to the respondent, and (3) have not waived their right to challenge the specific enforcement of the contract after signing it with knowledge of the claimed fraud, we believe the trial court correctly determined that the conveyance from F.A., Inc. to the respondent was not made with the intent to defraud creditors.

   The portion of the Maryland Uniform Fraudulent Conveyance Act, Md. Code (1975), Com. Law Art., § 15-207, relied upon by the petitioners provides in pertinent part that "[e]very conveyance made . . . with actual intent, as distinguished from[***10] intent presumed in law, to . . . defraud present or future creditors, is fraudulent as to both present and future creditors." In recent cases arising under this statute, we have made plain that initially the burden of [*449] proof is on the party attacking a transaction, that persons are not prohibited from giving preferential treatment even to close relatives so long as it is done without fraudulent intent and upon fair consideration, that an antecedent debt of a mortgagor constitutes valid consideration, and that Rule 886 governs our review of the chancellor's findings on the evidence.  Berger v. Hi-Gear Tire & Auto, 257 Md. 470, 475-76, 263 A. 2d 507, 509-10 (1970); see Beccio v. Tawnmoore Apartments, 265 Md. 297, 299-301, 289 A. 2d 311, 312-13 (1972). An application of these principles to the facts of the present case compels the conclusion that actual fraud was not shown.  Initially we note that the satisfaction of a mortgage constitutes valid consideration; here, there was no evidence introduced that the value of the property at the time of the conveyance to the respondent exceeded the total of the $4,000 balance of the respondent's second mortgage and the[***11] $12,675 balance of the first mortgage to which the property was subject.  Moreover, besides the fact that persons are not prohibited from giving preferential treatment to one creditor over another, the respondent as holder of a mortgage was entitled to have preference over subsequent judgment lien holders.  Under these circumstances, the mere showing that William E. Dixon was the person behind both the mortgagor and mortgagee corporations is of little consequence.  Finally, we point out that even assuming the June 20, 1974 liens were enforceable against the subject property, there is no apparent reason why these liens totaling less than $5,000, together with the balance on the first mortgage of $12,675, could not have been paid by the respondent at the time of settlement from the $61,900 purchase price.

   The petitioners' other contention -- that the contract is unenforceable because the respondent could not legally invest in the property -- involves this Court's first examination of the Maryland Professional Service Corporation Act. Md. Code (1975 & 1976 Cum.Supp.), Corp. & Ass'ns Art., §§ 5-101 to -122.  This statute, similar in many respects to legislation in the District of[***12] [**1249]Columbia and every state except Wyoming authorizing professional [*450]corporations or professional associations, permits one or more persons who are licensed to perform a professional service to organize a professional corporation.  § 5-102.  See generally 6 W. Fletcher, Cyclopedia of the Law of Private Corporations § 2523.1 (1968 rev.); 1 F. O'Neal, Close Corporations § 2.04h (2d ed. 1971); Dunn, Professional Corporations: Their Development and Present Status with Respect to the Practice of Medicine, 24 U.Fla.L.Rev. 625, 635-40 (1972); Note, Professional Corporations: Analysis Under the Tax Reform Act and Survey of State Statutes, 58 Geo.L.J. 487, 502-33 (1970); Annot., 4 A.L.R.3d 383 (1965). Although the Maryland Act clearly limits the business of such corporations solely to rendering the service for which they were incorporated, it nonetheless permits them to make investments and own property.  See § 5-104.  This section, the one in dispute in the present case, provides in its entirety:

   (a) Business of corporation limited.  -- A professional corporation may not engage in any business other than the performance of the professional[***13] service for which it was specifically incorporated.

   (b) Corporate investment and ownership of property.  -- Notwithstanding any other provision of law, a professional corporation may invest its funds in real estate, mortgages, stocks, bonds, or any other type of investment, and may own real or personal property necessary for the performance of a professional service. n[4]
 
The Sullivans contend that the phrase "necessary for the performance of a professional service" modifies the entire [*451] sentence, and that because investment in Lot 9 was not necessary for the corporation to render its professional service, the respondent acted illegally when it acquired the mortgage, took the deed, and sold this real estate. For this reason the petitioners assert that the contract is unenforceable by a court of equity and concomitantly that the seller's bill of complaint should have been dismissed.

n4 Section 5-104 formerly appeared, in substantially the same language, as Article 23, § 436 of the Maryland Code (1957, 1973 Repl. Vol.):

   No corporation organized under this subtitle shall engage in any business other than the rendering of the professional services for which it was specifically incorporated; provided, however, nothing in this subtitle or in any other provisions of existing law applicable to corporations shall prohibit a corporation from investing its funds in real estate, mortgages, stocks, bonds or any other type of investments, or from owning real or personal property necessary for the rendering of professional services.

[***14]

   Assuming the buyers have standing to raise the issue of the illegality of the contract, we nonetheless conclude that the respondent's investment in, and later ownership and divestment of, the property was proper.  We say this because it is clear to us that the words "necessary for the performance of a professional service" modify only the clause dealing with ownership of property, and were not intended to restrict the power of professional corporations to invest their funds.  In light of the generally recognized rule of statutory construction that a qualifying clause ordinarily is confined to the immediately preceding words or phrase -- particularly in the absence of a comma before the qualifying clause -- the disputed language obviously should be construed in the first instance as modifying only the phrase "and may own real or personal property." See Webb v. City of Baltimore, 179 Md. 407, 409-10, 19 A. 2d 704, 705 (1941). See generally 2A J. Sutherland, Statutes and Statutory Construction § 47.33 (4th ed. C. Sands 1973); 73 Am.Jur.2d Statutes §§ 229-31 (1974).  And since nothing in the statute indicates that such a reading would be contrary to the intent of the[***15] legislature, we have no occasion to construe the language otherwise. Accordingly, we conclude that professional corporations may invest their funds in, among other ventures, mortgages of any sort; they are not limited to making investments which are necessary for the performance of the professional service. n5 Had the legislature [*452] [**1250] intended the narrow interpretation advocated by the petitioners, it surely would not have used the unrestrictive language "any other type of investment." And as the respondent points out in its brief: "One would wonder when, if ever, the purchase of stocks or bonds would be necessary for the performance of a professional service." Although the portion of § 5-104 (b) relating to ownership of property is somewhat redundant under this analysis, we believe the General Assembly merely intended to remove any doubts, possibly raised by the categorical language of § 5-104 (a), regarding the power of a professional service corporation to own real or personal property necessary or appropriate to carry on the business of the professional service. n6

n5 We note, however, that the respondent would be precluded by the terms of § 5-104 (a) from engaging in the business of mortgaging, or buying and selling, real property.  While it may be difficult under other circumstances to distinguish between mere "investment" and active "engaging in a business," see Note, Professional Corporations: Analysis Under the Tax Reform Act and Survey of State Statutes, 58 Geo.L.J. 487, 516-17 (1970), it is plain that the sale of Lot 9 was a disposition solely to recover invested funds and not incidental to the operation of a real estate business.

[***16] 

n6 We also point out that the Maryland legislature's explicit reference to ownership of property in addition to its reference to investment in property is in no way unique.  The vast majority of professional corporation laws, admittedly often in more unambiguous language, absolutely proscribe the engagement in a business other than the professional service, but qualify that prohibition by permitting ownership of real and personal property necessary to the rendering of the service as well as separately providing for investments of any type.  See, e.g., Del. Code Tit. 8, § 609 (1974); Mass. Ann. Laws ch. 156A, § 4 (Michie/Law. Co-op 1970); N. M. Stat. Ann. § 51-22-5 (1975 Supp); Pa. Stat. Ann. Tit. 15, § 12604 (Purdon 1967); Utah Code Ann. § 16-11-6 (1973); Vt. Stat. Ann. Tit. 11, § 804 (1973).

   Since the title to the property in dispute here was not affected by a fraudulent conveyance, and since the respondent had the power under Maryland law to acquire and sell it to the Sullivans, the trial court's conclusion that specific performance should be granted was not erroneous.  The title[***17] to Lot 9 was free from reasonable doubt, and the purchaser was obligated to accept it.  See, e.g., Styers v. Dickey, 261 Md. 225, 231-32, 274 A. 2d 374, 378 (1971); Berlin v. Caplan, 211 Md. 333, 343-44, 127 A. 2d 512, 518 (1956).

   Judgment of the Court of Special Appeals vacated and case remanded to that court with directions that it affirm the judgment of the Circuit Court for Anne Arundel County.

   Costs to be paid by the petitioners. 

ROGED, INC. et al. v. EDGAR H. PAGLEE 
No. 157, September Term, 1976
 
Court of Appeals of Maryland
 
280 Md. 248; 372 A.2d 1059; 1977 Md. LEXIS 842

 May  4, 1977, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Filed May 24, 1977; Denied May 31, 1977.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Orders appealed from affirmed; costs to be paid by appellants.

CORE TERMS:  stock, consent decree, stockholder, accounts receivable, valuing, chancellor, premiums, customers, decree, bid, written opinion, majority vote, legal counsel, former employer, current value, administering, dissolution, withdrawing, contingency, Maryland Rule, board of directors, account receivable, accounting method, counsel of record, final decree, net worth, indemnification, beneficiary, unambiguous, negotiations

COUNSEL: Jeffrey M. Axelson, with whom were Saul M. Schwartzbach and Schwartzbach & Wortman on the brief, for appellants.

   Ronald A. Baradel, with whom were Hartman & Crain on the brief, for appellee. 

JUDGES: Singley, Smith, Digges, Levine, Eldridge and Orth, JJ.  Singley, J., delivered the opinion of the Court.

OPINIONBY: SINGLEY

OPINION: [*250] [**1060] This appeal, from two orders of the Circuit Court for Anne Arundel County, was entered in the Court of Special Appeals.  We granted certiorari before the matter came on for hearing in that court.

   The genesis of the dispute came about when Edgar H. Paglee and Roger D. Bonney, each the owner of 50% of the stock of Roged, Inc. (Roged, or the Company), a company engaged in the business[***4] of selling and leasing materials handling equipment, had serious disagreements with respect to the management of the Company. n1 In November, 1974, Paglee filed a bill of complaint in the Circuit Court for Anne Arundel County against Roged, its officers and directors (except Mrs. Paglee) and one employee for the dissolution of Roged and for injunctive and declaratory relief.

n1 In October, 1974, a deadlock developed among the stockholders of the Company, and it became impossible to change the composition of the board of directors, of which Mr. and Mrs. Bonney and Mr. and Mrs. Paglee were members. The disagreement was largely the result of successive increases in Mr. Bonney's salary, placing Mrs. Bonney on the Company's payroll, the payment of premiums on Mr. Bonney's insurance policies with corporate funds, and payment from Company funds of fees for legal services rendered its officers and directors in this litigation.  Bonney had attempted to resolve this by terminating the employment of Mr. and Mrs. Paglee as officers of the Company, and by having the Company enter into an agreement for the sale of additional stock to a new employee, with the result that Paglee would have become a minority stockholder. Previously, Bonney had suggested the Company redeem Paglee's stock out of capital surplus for $4,172.50.

[***5]

   Injunctive relief was granted Paglee, pending trial of the case, which was scheduled to begin on 21 April 1975.  When the case came on for hearing on an amended bill of complaint and answer, counsel agreed to the entry of the following consent decree:

   "It is this 21st day of April, 1975, by the Circuit Court for Anne Arundel County, with the concurrence of all parties as indicated by the signatures of their respective counsel,

   [*251] "ORDERED, that these proceedings shall forthwith be referred to the Court Auditor for determination of the current value of the one hundred (100) shares of stock of plaintiff, Edgar H. Paglee, in Roged, Inc. in accordance with the following criteria:

   "1. The value of the stock shall be determined as if dissolution of the corporation had been decreed on April 21, 1975.

   "[**1061] 2. All of the 'commission backlog' of Roged, Inc. found to exist on April 21, 1975, as well as the proceeds, if any, of sealed bids submitted by Roged, Inc. on or before April 21, 1975, shall, for the purposes of the Auditor's account, be considered as an account receivable of Roged, Inc.

   "3. The accounts receivable stated above in paragraph 2 shall be reduced [***6]by the Auditor by reason of any applicable federal and/or State taxes to be paid by Roged, Inc. on said accounts receivable, as well as the proper amount allocable as the cost of administering said accounts receivable to a successful conclusion, said cost of administration to be determined by past costs of administration and/or current costs adequately demonstrated to the satisfaction of the Auditor.

   "4. The Auditor, in determining the current value of plaintiff's stock, shall also consider (upon information to be submitted in letter form to the Auditor by counsel of record) and pass upon the necessity, legality, and validity of the following expenditures heretofore made by Roged, Inc.:

   "(a) Payment of counsel fees and expenses of litigation of all named defendants by the corporation.

   "(b) Purchase from corporate funds of the premiums on life, major medical, and income protection policies on behalf of defendant, Roger D. Bonney.

   [*252] "(c) Payment by the corporation of any salary in excess of $2000.00 per month to defendant, Roger D. Bonney.

   "5. The Auditor, in determining the current value of plaintiff's stock, shall also consider (upon information to be submitted in letter[***7] form to the Auditor by counsel of record) and pass upon the issue of whether or not either of the following are legitimate accounts payable of Roged, Inc.:

   "(a) $11,460.00 'advance commissions' to Litton Unit Handling Systems.

   "(b) Approximately $1,900.00 'advance commissions' to Elliott Manufacturing Company.

   "AND, IT IS FURTHER ORDERED that defendants, Roged, Inc. and Roger D. Bonney, shall, commencing April 22, 1975, set up a separate trustee account in which the accounts receivable set forth in paragraph 2 above shall be deposited when and as received; and

   "IT IS FURTHER ORDERED that defendants, Roger D. Bonney and Wayne F. Byrd, shall promptly and from time to time furnish to the Court Auditor (with copies to counsel for plaintiff) any and all corporate records or information required by the Auditor to properly state his account, and

   "IT IS FURTHER ORDERED that defendant, Roged, Inc., shall be allowed to continue doing business, and that, commencing April 22, 1975, defendants, Roged, Inc. and Roger D. Bonney, shall set up and maintain separate books of account for all business and income generated from and after said date, and

   "IT IS FURTHER ORDERED that the injunction[***8] previously issued in these proceedings shall remain in full force and effect pending a final decree from this Court, and

   "IT IS FURTHER ORDERED that defendant, [*253] Roger D. Bonney, shall forthwith submit to this counsel a listing of all pending bids, the name of the manufacturer, the agency to which the bid has been submitted, and the date on which the bids are to be opened, and

   "IT IS FURTHER ORDERED that the value of plaintiff's stock, as finally determined by the Auditor, shall be reduced to final judgment as of April 21, 1975, and

    "IT IS FURTHER ORDERED that, upon the passage of a final decree in these proceedings, plaintiff, Edgar H. Paglee, shall place his stock certificate in escrow with William A. Franch, Esq., until said stock is finally redeemed by the corporation or its designee at the value stated by the Auditor and ratified by this Court."

   In September, 1975, the Auditor filed his report which determined that Paglee's stock, at 21 April 1975, had a value of [**1062] $33,138.35. Exceptions were filed in behalf of Roged and the individual defendants, as well as by Paglee.  After a hearing on the exceptions, the chancellor (Childs, J.) remanded the case[***9] to the Auditor for a restatement of his account, and after further hearings, an order was entered on 14 May 1976 determining that the value of Paglee's stock at 21 April 1975 was $41,191.18, to which should be added interest and costs.  A monetary judgment was entered in Paglee's favor against all defendants in that amount.

   The defendants then moved for a review of the consent decree of 21 April 1975 and the order of 14 May 1976, which was denied on 29 June 1976, after hearing by another judge (Hopper, J.) of the same court.  It was from the orders of 14 May 1976 and 29 June 1976 that this appeal was taken.

   It seems that Roged and the individual appellants concede that the initial determination of the court Auditor that Roged had a net worth of $28,169.84 on 21 April 1975 is correct.  They challenge, however, the adjustments made by the Auditor and the court to reflect the provisions of the [*254] consent decree. n2 In support of this they mount a many faceted attack, which we shall consider in the order presented.

n2 Roged's books were kept on a "cash basis" accounting method rather than an "accrual" accounting method. Therefore, the net worth per books would include only transactions which had only been reduced to cash payments or receipts and not those which were still receivables or payables.  Consequently, in valuing the corporation it became quite important to calculate the net profit on the various receivables that had to be administered.

[***10]

   (i)
 
The court erred in not allowing the taking of testimony on the ambiguity in construction of the consent decree.

   At the outset, it must be recognized that the consent decree was the product of negotiations between the parties.  It is well settled that Maryland follows the objective test in the interpretation of contracts, Billmyre v. Sacred Heart Hosp., 273 Md. 638, 642-43, 331 A. 2d 313, 316-17 (1975); Kasten Constr. v. Rod Enterprises, 268 Md. 318, 327-29, 301 A. 2d 12, 17-18 (1973); U.S.I.F. Triangle v. Rockwood Dev. Co., 261 Md. 379, 383-84, 275 A. 2d 487, 489-90 (1971); Slice v. Carozza Prop., Inc., 215 Md. 357, 368, 137 A. 2d 687, 693 (1958) and that the application of this test means that where the language is plain and unambiguous, there is no room for construction, and it must be presumed that the parties meant what they expressed: not what the parties intended the contract to mean, but what a reasonable person in the position of the parties would have thought it meant, Kasten Constr., supra, 268 Md. at 328-29. We have extended this principle to the interpretation of judicial decrees, Monticello v. Monticello, 271 Md. 168, 173, 315 A. [***11] 2d 520, 523 (1974), cert. denied, 419 U.S. 880 (1974). See Rosher v. Superior Court, 9 Cal. 2d 556, 560, 71 P. 2d 918, 920 (1937). We find nothing ambiguous in the decree. If, as Roged contends, it failed to provide for certain contingencies, this was a void to be filled by the draftsmen, not by the courts.

   [*255] (ii)
 
The court below erred in disallowing, for valuation purposes, the expenditures made by Roged for legal fees in behalf of all of the defendants.

   Maryland Code (1957, 1973 Repl. Vol.) Art. 23, § 64 (now Code (1975), Corporations and Associations Article § 2-418) contain provisions governing the indemnification of the officers, directors and employees of a corporation. Generally speaking, subsection (d) of the former, and subsection (e) (2) of the latter condition indemnification only upon: a majority vote of a quorum of directors not parties to the suit; a written opinion of independent legal counsel; or, upon a vote of the stockholders.

   As Paglee argues, quite correctly, we think, that all of the six directors except Paglee and Mrs. Paglee were parties defendant, so that the first condition could not be met; no written opinion of independent[***12] legal counsel was produced, nor could [**1063] a majority vote of stockholders be obtained.  Moreover, the provision of Art. XI of Roged's by-laws, upon which Roged and the individual appellants pin their hopes, was never introduced in evidence below and cannot be considered here, Maryland Rule 885.

   In his brief, Paglee concedes that it is no concern of his whether litigation expenses of $8,602.00 are ultimately paid by Roged. Rather, his concern was that they not be charged in determining the value of his stock.

   (iii)
 
The lower court erred in not finding that the advance commissions from Litton Unit Handling Systems are liabilities of Roged and that monies should be withheld for their payment.

   The short answer to this contention is that while Litton had paid to Roged some $11,460.00 in advance commissions, the advance had been made in consideration of certain undertakings by Roged, some of which had already been [*256]performed.  Moreover, the deposition testimony of Litton's marketing vice president, Lloyd P. Robertson, was that Litton would not sue Roged to recover the $11,460.00; the sum was not carried on Litton's books in April, 1975, as an account[***13] receivable, and if Roged were to cease representing Litton, according to Robertson, Litton would "forget" the $11,460.00.

   (iv)
 
 The lower court erred in not finding that accounts receivable are a contingent asset of Roged, and, on dissolution, where the contingency of payment is remote, the amount should be deducted from the value of Roged.

   This contention relates primarily to a "commission backlog," i.e., commissions which had been earned, booked, but not collected on 21 April 1975. Paragraph 2 of the consent decree clearly contemplated that these should be taken into account as accounts receivable in valuing Paglee's interest, subject only to an adjustment for Federal and State income taxes thereon and the cost of "administering" the accounts "to a successful conclusion." n3

n3 Roged's accountant estimated the cost of "administering" these accounts as 82.42%; Paglee's at 44.5%.  Finally, a figure of 66.7% was agreed upon, and adopted by the court.

   The chancellor made the following findings[***14] of fact regarding these accounts:

   "The following 'bad debts' written off by the defendant Byrd (Roged's accountant) after April 21, 1975 were to be added back to the book income of [Roged] in valuing [Paglee's] stock. As those items had never before been written off by [Roged], payments were (and have been) made by [Roged's] customers on those accounts, no logical explanation was made at the hearing to justify such writeoffs, and they had not in fact been written off by [*257] [Roged] on April 21, 1975, the date of the consent decree."

   We cannot regard these findings as clearly erroneous, Rule 886.  Moreover, the consent decree mandated no different treatment.

   (v)
 
The lower court erred in not allowing the deduction of insurance premiums paid in behalf of Roger D. Bonney, the president of Roged, from the retained value of Roged.

   Both the court Auditor and the chancellor disallowed $1,166.00 paid by Roged in premiums paid for policies of disability, major medical or life insurance policies taken out for the benefit of Roger D. Bonney, the president of Roged, Bonney or members of his family having been named as beneficiaries of such policies.

   We[***15] are wholeheartedly in accord with this conclusion.  This was neither "key man" insurance nor an aspect of a group insurance plan as the terms are ordinarily understood.  While this corporation may have had an insurable interest in the life of an officer, for purposes of valuing the stock [**1064]of a closely held corporation such as Roged, in the absence of an agreement making this a part of the officer's compensation (and apparently here there was none), premiums on such policies are properly payable from corporate funds only if the corporation is the beneficiary, Penn Mut. Life Ins. Co. v. Bank of America, 5 Cal. 2d 288, 54 P. 2d 453 (1936); Jansen v. Tyler, 151 Ore. 268, 49 P. 2d 372 (1935); 19 Am.Jur.2d Corporations § 1056 at 510 (1965); Annot., 56 A.L.R.3d 1086 at 1090, 1097-98 (1974).

   (vi)
 
The lower court erred in not finding that the contingent liabilities of Roged resulting from the benefits received under a quasi-contract should reduce the value of Roged.

   [*258] The thrust of this contention, while not succinctly stated, is that when Bonney, the president of Roged, left his former employer, J. J. Broderick Co., Inc., where he had worked[***16] as a salesman, he brought certain of his (and Broderick's) customers with him.  Sales to these customers generated a substantial amount of income for Roged in the early years of Roged's operation.

   At the time of Bonney's termination of his employment with Broderick, there remained commissions owed by Broderick to Bonney in the approximate amount of $60,000.00, for which Bonney instituted suit against Broderick.  Broderick apparently counter-claimed for an equivalent amount in damages against Bonney, on the theory that Bonney had wrongfully alienated its customers. While this litigation had not been resolved at the time of the consent decree, was not referred to in the decree, nor was the potential liability of Bonney reflected on Roged's books, Roged argues that when its stock was valued, this liability should have been taken into account, since Roged had benefited from sales to customers brought to Roged by Bonney.

   Relying on Rule 886, we accept the chancellor's disposition of this claim:

   "In valuing [Paglee's] stock, no consideration was to be given to Defendant Roger D. Bonney's claim of approximately $60,000.00 against [Roged] (which claim arose out of litigation with[***17] his former employer), because no suit had been filed prior to April 21, 1975 against [Roged], the original suit between defendant Bonney and his former employer was settled by compromise rather than judgment and there was no consideration to [Roged] arising from Defendant Bonney's alleged improper solicitation of his former employer's clients, there was no approval by [Roged's] Board of Directors, and there existed no indemnity agreement between Defendant Bonney and [Roged]."

   [*259] For the reasons stated, we shall affirm the orders entered below. In view of the result which we reach, we find it unnecessary to consider Paglee's motion to dismiss, based on Rule 831 g. n4 In the preparation of this opinion, however, we have endeavored to confine our consideration to material contained in the record.

n4 Maryland Rule 831 c. 4 contemplates that an appellant's brief shall rely on facts established by the record.

   Orders appealed from affirmed; costs to be paid by appellants. 

Dove, James R., Sr. v. State. 
Pet. Docket No. 400, September Term 1976
 
Court of Appeals of Maryland
 
280 Md. 730; 1977 Md. LEXIS 1034

 April  11, 1977

   SUBSEQUENT HISTORY: [*1] Petition granted, and judgment of the Court of Special Appeals is reversed and case remanded to that Court with directions to reverse the judgment of the Circuit Court for  Anne Arundel  County and remand the case for a new trial

OPINION: Opinion of Court of Special Appeals reported: 33 Md. App. 601. 

ERNEST H. HUPP et ux. v. THE GEORGE R. REMBOLD BUILDINGCOMPANY 
No. 134, September Term, 1976
 
Court of Appeals of Maryland
 
279 Md. 597; 369 A.2d 1048; 1977 Md. LEXIS 924

 March  4, 1977, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Wray, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Case remanded, without affirmance or reversal for further proceedings conformable to the views herein expressed; costs to abide the result .

CORE TERMS:  specific performance, seller, buyer, monies paid, right to rescind, optionee, decreed, decree, settlement, default, vendor, prayer, purchaser, optionor, hereunder, cancel, evidentiary hearing, disables, vendee, condition precedent, matter of course, unable to perform, purchase price, case came, unobjectionable, complied, proffer, invoked, mutual, modifications

COUNSEL: Joseph I. Huesman, with whom was R. Douglas Jones on the brief, for appellants.

   Robert W. Warfield for appellee.

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

OPINIONBY: SINGLEY

OPINION: [*598] [**1049] Ernest H. Hupp and Mildred E. Hupp, his wife (the Hupps) entered an appeal to the Court of Special Appeals from an order and decree of the Circuit[***3] Court for Anne Arundel County dismissing their bill of complaint for specific performance of a contract which they had entered into with The George R. Rembold Building Company (Rembold) for the purchase of a house to be constructed by Rembold.  We granted certiorari before the case came on for hearing in the Court of Special Appeals.

   In December of 1973, the Hupps had entered into the contract for the purchase of a house at 761 North Mesa Road in a development known as Hillendale in Anne Arundel County.  The house was to be identical with another house which had been built by Rembold in the same community, with certain modifications, not material to the issue before us, as agreed by the parties.

   The purchase price was $42,500.00, of which $2,000.00 had been paid prior to the execution of the contract.  At settlement, at which time possession was to be given, an additional $25,500.00 was to be paid in cash, and the balance was to be realized from a 20-year purchase money mortgage with interest at eight percent to be obtained by the Hupps.

   The contract is otherwise unremarkable, except for the provisions of paragraph 7:

   "Should Buyers cancel or default hereunder for any reason[***4] all monies paid by Buyers, including the cost of all change orders, will remain the property of the Seller and Seller shall be entitled to recover from Buyers all damages sustained as a [*599] consequence of such cancellation or [**1050]default in excess of said monies.  Should Seller cancel or default hereunder for any reason all monies paid by Buyers shall be returned by Seller, with no further liability on the part of one to the other." n1

n1 A contract containing the same provision was before the Circuit Court for Baltimore County and later before the Court of Special Appeals in Harris v. Stefanowicz Corp., 26 Md. App. 213, 214, 337 A. 2d 455, 456 (1975). In that case, the lower court commented that it was "the type of clause that no prudent buyer should allow to be in a contract.  . . ." A decree dismissing an action for specific performance prior to an evidentiary hearing was reversed and the case was remanded for trial.

   During the course of construction, which appears to have proceeded more [***5]slowly than the 120-day period stipulated by the contract, the Hupps advanced $2,910.34 for modifications and other extras not contemplated by the contract.

   Rembold scheduled settlement for 28 June 1974.  The Hupps failed to appear because Rembold had refused to meet with them at the house to review the work which had not been completed. n2 Rembold than called for settlement on 3 July, but rejected the Hupps' suggestion that $1,000.00 of the purchase price be escrowed pending completion of the work.  When the Hupps declined to attend the settlement, Rembold wrote to the Hupps' counsel on 3 July, saying in part "I am invoking Para. (7) seven of a contract dated Dec. 5, 1973."

n2 While there were 23 items on the Hupps' punchlist, the significant ones related to the manner in which kitchen cabinets had been installed, the failure to install a sump pump, and exterior grading.  At trial the county building inspector said he regarded the house as being 95% complete, presumably in terms of building code requirements.

[***6]

   On 11 July 1974, Rembold entered into a contract for the sale of the house to another purchaser for $49,900.00. n3 The Hupps, by then, had filed their bill of complaint for specific performance on 10 July in the Circuit Court for Anne Arundel County.

n3 The contract with the new purchasers took the form of a lease, which could be converted into an agreement of purchase and sale, contingent upon Rembold's prevailing in this litigation.

   Rembold demurred on the ground that the purchase contract violated the rule against perpetuities and was too [*600] uncertain and indefinite to be specifically enforced, and answered, denying that the work had not been properly performed and alleging that the house had been sold, in good faith, to others. The matter of the demurrer was referred to a Master in Chancery, whose report recommended that the demurrer be overruled.  The court so ordered on 27 January 1975.

   The case came on for hearing on the merits in July, 1975 and on 25 May 1976, the court entered its opinion[***7] and order, in which it concluded that Rembold had acted under the second sentence of paragraph 7 of the contract:
 
"Should Seller cancel or default hereunder for any reason all monies paid by Buyers shall be returned by Seller, with no further liability on the part of one to the other."
 
and dismissed the bill of complaint.

   Generally, the granting or withholding of a decree for specific performance lies within the discretion of the trial court, Gross v. J & L Camping & Sports, 270 Md. 539, 543-44, 312 A. 2d 270, 273 (1973), quoting from The Glendale Corp. v. Crawford, 207 Md. 148, 154, 114 A. 2d 33, 35 (1955):
 
"This discretion is not, however, arbitrary; and where the contract is, in its nature and circumstances, unobjectionable -- or, as it is sometimes stated, fair, reasonable and certain in all its terms -- it is as much a matter of course for a court of equity to decree specific performance [**1051] of it as it is for a court of law to award damages for its breach."

   An overview of circumstances in which specific performance may be granted can be found in this Court's opinion in Charles County Broadcasting v. Meares, 270 Md. 321, [***8] 324-26, 311 A. 2d 27, 30-31 (1973):
 
   "The granting of specific performance rests within the sound discretion of the trial court, Horst v. Kraft, 247 Md. 455, 459, 231 A. 2d 674, 676 (1967); Restatement of Contracts § 359 (1) (1932).  If a [*601] contract is fair, reasonable and certain, specific performance may be granted almost as a matter of course, Excel Co. v. Freeman, 252 Md. 242, 246, 250 A. 2d 103, 106 (1969). This is true even if the contract is contingent, if the contingency can be met, Scheffres v. Columbia Realty Co., 244 Md. 270, 284, 223 A. 2d 619, 626 (1966); within the time stated, Paape v. Grimes, 256 Md. 490, 499, 260 A. 2d 644, 649 (1970). See generally Chapman v. Thomas, 211 Md. 102, 126 A. 2d 579 (1956).

   "While specific performance has been historically associated with contracts for sale of land, it has been invoked to enforce other contracts for at least a century, Simpson, Fifty Years of American Equity, 50 Harv. L. Rev. 171, 173 (1936). See Board of County Comm'rs v. MacPhail, 214 Md. 192, 133 A. 2d 96 (1957) (paving public road); Wolbert v. Rief, 194 Md. 642, 650-51, 71 A. 2d 761, 764-65 (1950) (sale of a business). [***9]

   "It has long been established that if the remedy of specific performance is possible when the vendee brings suit, but while the action is pending, a vendor disables himself from performing his contract, damages may be awarded in lieu of specific performance, Busey v. McCurley, 61 Md. 436, 448 (1884); Powell v. Young , 45 Md. 494, 498 (1877); Green v. Drummond, 31 Md. 71, 84 (1869); Rider v. Gray , 10 Md. 282, 300 (1856); 1 Pomeroy, Equity Jurisprudence § 237f, at 443 (5th ed. 1941); Miller, Equity Procedure § 672 (1897); Pomeroy, Specific Performance of Contracts § 294, at 372 (2d ed. 1897).  See Kappelman v. Bowie, 201 Md. 86, 90, 93 A. 2d 266, 268 (1952) ('equity may refuse . . . to . . . enforce a hard bargain').

   "If a complainant files a bill for specific performance at a time when he knows specific performance is impossible, and the sole remaining prayer for relief is for damages, his bill will be dismissed, Davis v. Winter, 168 Md. 613, 618-19, [*602] 178 A. 604, 605-06 (1935). Although specific performance cannot be decreed once performance has been impossible, Powichrowski v. Sicinski , 139 Md. 376, 383, 114 A. 899, 901-02 (1921), damages[***10] may be awarded in the same equitable proceeding, Restatement of Contracts, supra, § 363 and illustration 1 at 657, provided that at the time the action was commenced in equity, specific performance was in fact obtainable, Harris v. Harris, 213 Md. 592, 597, 132 A. 2d 597, 600 (1957). Compare Prucha v. Weiss, 233 Md. 479, 485, 197 A. 2d 253, 256, cert. denied, 377 U.S. 992 (1964), where an equity court was held to be without jurisdiction to grant money damages when no independent grounds of equitable jurisdiction were present.

   "If the object of the bill is to compel specific performance and there is a prayer for general relief, damages traditionally could be awarded under that prayer, Powell v. Young, supra, 45 Md. at 496-97; Miller, supra, § 673.

   "The rule as to measure of damages is articulated in Hartsock v. Mort, 76 Md. 281, 288-89, 25 A. 303, 304 (1892), quoting, with minor editing, from Hammond v. Hannin, 21 Mich. 374, 387 (1870):
 
'If the vendor acts in bad faith, -- as, if having title he refuses to convey, or disables himself from conveying, -- the [**1052] proper measure of damages is the value of the land at the time of the breach; [***11] the rule, in such case, being the same in relation to real as to personal property. But, on the other hand, if the contract of sale was made in good faith, and the vendor for any reason is unable to perform it, and is guilty of no fraud, the clear weight of authority is that the vendee is limited in his recovery to the consideration money (paid) and interest, with perhaps in [*603] addition, the costs of investigating the title.'
 
This is essentially the English rule, adopted by Flureau v. Thornhill, 96 Eng. Rep. 635 (1776). See generally McCormick, Law of Damages § 179 (1935).

   "Under Hartsock v. Mort, supra, we conceive good faith to be that ordinarily exhibited by a seller who is unable to perform through no fault or fraud of his own, while bad faith is that shown by a seller who refuses to perform when able to do so, Horner v. Beasley, 105 Md. 193, 198, 65 A. 820, 822 (1907)."

   We are here called upon to construe a contract provision which may be analogized to an option, where specific performance might have been decreed against the optionor but not necessarily against the optionee, Simpers v. Clark, 239 Md. 395, 400-01, 211 A. 2d 753, 756 (1965);[***12] Trotter v. Lewis, 185 Md. 528, 534, 45 A. 2d 329, 332 (1946). n4 What makes this case unusual is that the purchaser can be likened to the optionor, and the seller, to the optionee. As a consequence, Rembold might have sought specific performance against the Hupps, had he fully performed, assuming that the first sentence of paragraph 7 of the contract is not to be regarded as a provision for liquidated damages in lieu of specific performance, n5 see Armstrong v. Stiffler, 189 Md. 630, 634-35, 56 A. 2d 808, 810 (1948); Rogers v. Dorrance, 140 Md. 419, 423-24, 117 A. 564, 566 (1922); 71 Am. Jur. 2d Specific Performance § 57, at 83-85 (1973).

n4 In cases involving options, the test of mutuality is usually met by regarding the parties as mutually bound once the option is exercised, or by regarding the undertaking as a conditional one which becomes mutual when the condition is met, see E. Miller, Equity Procedure §§ 685-86, at 791-94 (1897).

n5 This surely must have been apparent to Mr. Hupp, who is a member of the Maryland bar.

[***13]

   When, as here, the parties enter into a contract which gave the seller the right to rescind for any reason, or perhaps even for no reason, specific performance cannot be [*604] decreed unless the seller against whom specific performance is sought fails to meet any condition precedent which must be complied with before his right to rescind can be invoked. Here, the condition was that ". . . all monies paid by Buyers shall be returned by Seller . . . ."

   Because there is no evidence that Rembold made a timely proffer of the return of the sums advanced by the Hupps when he attempted to rescind the agreement by his letter of 3 July, the case must be remanded for an evidentiary hearing to determine whether Rembold made a timely proffer of the Hupps' deposit, together with all monies expended by them on the house.  Should it be found that he did not, the Hupps should have been granted the relief which they sought.

   Case remanded, without affirmance or reversal for further proceedings conformable to the views herein expressed; costs to abide the result. 

SUPERVISOR OF ASSESSMENTS OF ANNE ARUNDEL COUNTY v.SOUTHGATE HARBOR et al. 
No. 126, September Term, 1976
 
Court of Appeals of Maryland
 
279 Md. 586; 369 A.2d 1053; 1977 Md. LEXIS 923

 March  3, 1977, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Wray, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment reversed; case remanded to the Circuit Court for Anne Arundel County for passage of an order affirming the decision of the Maryland Tax Court; appellees to pay the costs.

CORE TERMS:  condominium, per square foot, waterfront, front foot, full cash value, collected, Horizontal Property Act, same manner, valuation, proportion, supervisor, assessor, evaluated, assessing, taxation, levied, water, administrative power, fair market value, service station, exact science, subclassification, discriminatory, invalid, matter of law, assessed value, real estate, uniformity, horizontal, overvalued

COUNSEL: Ward B. Coe, III, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellant.

   Ronald A. Baradel, with whom were Hartman & Crain on the brief, for appellees.

JUDGES: Singley, Smith, Digges, Levine and Orth, JJ., and Robert F. Sweeney, Chief Judge of the District Court of Maryland, specially assigned.  Smith, J., delivered the opinion[***3] of the Court.

OPINIONBY: SMITH

OPINION: [*587] [**1054] We are here concerned for the first time with the proper method of assessment for condominiums. We shall reverse a determination by the Circuit Court for Anne Arundel County that appellant, Supervisor of Assessments of Anne Arundel County (the Supervisor), improperly assessed the condominiums in question.  The basic contention is that it was discriminatory error for the assessor to use a square foot basis of valuation of the land of the condominiums when a front foot basis was used for certain other land in the Annapolis area.  The Maryland Tax Court found no error. Appellees here, Southgate Harbor et al. (the Taxpayers), then entered an appeal to this Court.  After our decision in [*588] Shell Oil Co. v. Supervisor, 276 Md. 36, 343 A. 2d 521 (1975), we transferred the case to the Circuit Court for Anne Arundel County for its consideration.  The Supervisor appealed the unfavorable decision of that court to the Court of Special Appeals. n1 We granted the writ of certiorari prior to consideration of the case by that court. 

n1 We shall not address ourselves to the propriety of the circuit court judge's action in remanding the case to the tax court for a consideration of the propriety of taxing a service easement, a point not presented by the Taxpayers in their appeal to the circuit court nor previously litigated by them before the tax court, since at oral argument before us the Taxpayers conceded this was error.

[***4]

   We are here involved with two condominiums in Annapolis.  The date of finality for the assessments in question is January 1, 1973.  The tax court said in its opinion:

   "The [Taxpayers] called . . . an attorney . . . who testified that from the tax record rolls of Anne Arundel County he had compiled approximately 235 waterfront properties and their assessed value for land, that he furnished this data to Mr. Harry Keith (a professional mechanical engineer and a Professor at the United States Naval Academy) who was the owner of Unit No. 9, Southgate Harbor.  Mr. Keith testified that he took the information furnished him by Mr. Scott and programmed this information into a computer, from which he established the following: The average per square foot land assessment was 83 cents and the average mean assessment per square foot was 59 cents.  From this data he also established the average front foot assessment at $129.57 and the average mean front foot at $99.05.  His testimony was supported by computer print outs and charts.

   "The [Taxpayers] then called Mr. George Lewis, Field Supervisor of Assessments for Anne Arundel County, as an adverse witness to determine from him the method[***5] used by the Department to establish land values, and the resulting assessments [*589] thereon, for waterfront properties in Annapolis.  The[y] . . . elicited from Mr. Lewis that residential waterfront property was assessed by the Department uniformly on a front foot basis and that waterfront condominium property was uniformly assessed on a square foot basis because of its density.

   "The Court is of the opinion that the basis upon which the Department assessed the land is not arbitrary, discriminatory, [**1055] capricious or illegal.  Furthermore, the Court feels that there was a complete absence of any affirmative evidence on behalf of the [Taxpayers] to justify granting the relief sought by the[m] . . . and accordingly the assessment appealed from must be affirmed as to the land."
 
   Lewis took issue with any implication that the waterfront properties mentioned were comparable to those of the Taxpayers, pointing to differences in accessibility by water and in the depth of the water. In fact, with reference to one group he said that there was "nothing but . . . mud in front of them; no water at all." As a consequence, he said that when these assessments were used in[***6] computing an average there were "indications of a mean that doesn't mean very much."

   The Taxpayers have presented no evidence of any kind as to the value of their property.  Thus, there is no contention that their land is assessed at more than its full cash value. The requirement of Maryland Code (1957, 1969 Repl. Vol.) Art. 81, § 14 (b) (1) is that real property "shall be assessed at the full cash value thereof on the date of finality," a term defined as meaning "current value less an allowance for inflation, if in fact inflation exists."

   The Taxpayers seize upon the language in the original Horizontal Property Act, Code (1957, 1973 Repl. Vol.) Art. 21 § 11-122 (b) at the time here applicable, stating that condominium units shall be assessed "in the same manner and to the same extent as such assessments are levied and [*590] collected in the case of individual land parcels." From this they argue, and the circuit court judge agreed, that if other waterfront land in the Annapolis area was assessed on a front foot basis then their land must also be so assessed.

   We have said on many occasions that a hornbook rule of statutory construction is that in ascertaining the intention[***7] of the General Assembly all parts of a statute are to be read together to find the intention as to any one part and that all parts are to be reconciled and harmonized if possible.  We have further said that a corollary to that rule is that if there is no clear indication to the contrary and it is reasonably possible, a statute is to be read so that no word, clause, sentence or phrase shall be rendered surplusage, superfluous, meaningless, or nugatory.  See, e.g., Thomas v. State, 277 Md. 314, 317, 353 A. 2d 256 (1976), and the cases there cited.  Therefore, we turn to the whole of the statute dealing with the manner of assessment of condominiums. Code (1957, 1973 Repl. Vol.) Art. 21, § 11-122 provides in pertinent part:

   "(a) Each property hereafter declared into a horizontal housing regime in the manner hereinabove set forth shall continue its original identity and unity for the purpose of evaluating the whole for assessment purposes in the manner now prescribed by law.  The total evaluation thus produced shall be distributed among the condominium units into which the property was divided and the assessment of each unit shall be in direct proportion to the share and interest [***8]of each unit as established in the master deed and the declaration of the property into the regime and an individual assessment thereby placed on each condominium unit in accordance with such proportion that such unit bears to the whole property covered by the original declaration.

   "(b) Each of said condominium units shall be carried on the tax records of the county or City of [*591] Baltimore in which it is located as a separate and distinct entity and all real estate taxes, including general and special assessments, shall be assessed, levied, and collected against each of the said several, separate and distinct units in conformity with the percentages of ownership established by the declaration in the same manner and to the same extent as such assessments are levied and collected in the case of individual land parcels."
 
[**1056] The term "property" as used in § 11-122 is defined in § 11-101 (m) as "mean[ing] and includ[ing] the land, whether leasehold or in fee simple, the building or buildings, all improvements and structures thereon, and all easements, rights and appurtenances thereunto belonging."

   We have also said that we consider the language of a statute[***9] in its natural and ordinary signification.  Bartell v. Bartell, 278 Md. 12, 17, 357 A. 2d 343 (1976), and St. Paul Fire & Mar. v. Ins. Comm'r, 275 Md. 130, 139, 339 A. 2d 291 (1975). Thus, we read the command here as one that a property brought "into a horizontal housing regime" shall first be evaluated as a whole in the same manner in which it would be evaluated were it not under the Horizontal Property Act. After this has been done the value thus established is to be divided among the various units in the proportion established by the deed.  Then under subsection (b) the assessed value for each of those units is to be carried on the tax records and taxes are to be collected from their owners based on those assessments in the same way in which taxes would be collected from the owner of a property not under the Horizontal Property Act based on the existing assessment for that property.  Accordingly, the phrase "in the same manner and to the same extent" in subsection (b) does not mandate that any given method of valuing a property must be used for all land in a given area.

   If we were to read the statute in the manner in which the Taxpayers read it, then other principles[***10] would come into play.  The General Assembly when it enacted this statute is presumed to have been acquainted with our decisions and to [*592] have acted accordingly.  See Bd. of Ex. of Land. Arch. v. McWilliams, 270 Md. 383, 387, 311 A. 2d 792 (1973), and the numerous cases there cited.  In Baltimore City v. The State, 105 Md. 1, 7, 65 A. 369 (1906), our predecessors observed, "The nature, location and other characteristics of the various kinds of property and interests subject to taxation render inevitable some diversity of method in their assessment." We echoed that statement in Weil v. Supervisor of Assess., 266 Md. 238, 254, 292 A. 2d 68 (1972), when we said that "[v]aluation of land is not an exact science," a statement we repeated in Fairchild Hiller v. Supervisor, 267 Md. 519, 521, 298 A. 2d 148 (1973). In Bornstein v. State Tax Comm., 227 Md. 331, 338, 176 A. 2d 859 (1962), Judge Henderson for the Court said that "[t]he mere fact that other classes of property may be assessed by a different method does not present a valid constitutional objection." This was after having observed:
 
"It is firmly established in this State that the relative[***11] weight to be accorded to any relevant factor in a particular case is for the assessing authorities and not for the courts.  Seaboard Commercial Corp. v. Tax Comm., 181 Md. 234, 243-244 [(1942)]; State Tax Comm. v. C. & P. Tel. Co., 193 Md. 222, 231-233 [(1949)]; Tax Comm. v. Brandt Cabinet Works, 202 Md. 533, 543 [(1953)]." Id. at 337.
 
In Bornstein the State Tax Commission used a capitalization of gross income in arriving at its valuation but it also considered net income and both original and reproduction cost.

   In Tax Comm. v. Brandt Cabinet Works, 202 Md. 533, 97 A. 2d 290 (1953), the taxpayer owned a manufacturing plant.  It was assessed on the basis of the actual construction cost for new buildings it erected in 1947 and 1948, while the assessment for old buildings was based upon cubic foot rates from a manual used by assessors. The Court said that "current cost appear[ed] to be a practical guide in arriving at 'full cash value.'" It pointed out [**1057] that it had not been shown [*593] that either method resulted in an assessment of more than full cash value.

   Because valuation is not an exact science many, many methods have[***12] been used in attempting to determine fair market value. In State Tax Comm. v. C. & P. Tel. Co., 193 Md. 222, 66 A. 2d 477 (1949), Judge Collins observed for the Court:
 
"Valuation of property for taxation is one of the oldest forms of administrative power and the courts should not interfere with the exercise of this administrative power unless it is unlawful, unreasonable, or against the substantial weight of the evidence.  Perfect equality is unattainable.  If assessments could be upset by comparison of a few widely different properties, on the basis of a selected few of the many elements or evidences of value, no assessment could stand." Id. at 235.

   In Weil we rejected a contention that all land in a given area must carry the same assessment per square foot, saying:
 
"It is apparent that the appellants are under the impression that all land in a given area will carry the same assessment per square foot. We do not understand a subclassification as being created when the highest and best use of a property is taken into consideration in determining its present cash value.  Physical characteristics of land will vary from lot to lot.  The very size[***13] of a lot might well militate against its being used for certain purposes and suggest its use for other purposes.  Good economics and good planning would dictate that there be some variation of use from lot to lot in a given area." Id. 266 Md. at 254.

   More recently in Shell Oil Co. v. Supervisor, 278 Md. 659, 366 A. 2d 369 (1976), we rejected a contention that land was improperly valued at $3.00 per square foot for service station use when other commercial property in the area, [*594] regarded by the taxpayers' expert as equally adaptable for service station use, was only assessed at $1.80 per square foot. We held that the tax assessor did not err when he took into consideration the type of buildings on those comparables, their zoning, and the need for service stations in the area in making his evaluation of the land.  We there quoted from Rogan v. Commrs. of Calvert County, 194 Md. 299, 71 A. 2d 47 (1950), where the Court said:

   "The purpose of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States is to protect every person within the State's jurisdiction against intentional and arbitrary discrimination, whether [***14]occasioned by the provisions of a statute or by improper enforcement of a statute.  Intentional and systematic undervaluation by assessors of other taxable property in the same class violates the constitutional right of a person taxed upon the full value of his property.  However, mere errors of judgment on the part of State or County officials in making assessments will not support a claim of such discrimination.  There must be something which in effect amounts to an intentional violation of the essential principle of practical uniformity. The good faith of such officials and the validity of their actions will be presumed.  When their actions are assailed, the burden of proof is upon the complaining party.  Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 38 S. Ct. 495, 62 L. Ed. 1154 [(1918)]; Sioux City Bridge Co. v. Dakota County, Nebraska, 260 U.S. 441, 43 S. Ct. 190, 67 L. Ed. 340, 28 A. L. R. 979 [(1924)]." Id. at 309-10.
 
We referred also to Charleston Assn. v. Alderson, 324 U.S. 182, 190-91, 65 S. Ct. 624, 89 L. Ed. 857 (1945), and the numerous cases cited by Mr. Chief Justice Stone for the Court as being to like effect.  We [**1058] [***15] also quoted from that portion of Rogan in which it was said that this Court [*595]"accept[ed] the rule, as adopted in other States, that the assessment of the property of others at a lower proportion of its value than that of a complaining taxpayer, which is not assessed at more than its fair cash value, does not make the tax on the latter invalid, unless the assessment was fraudulently made."

   Allegations similar to those made by the Taxpayers here that in assessing their property there has been a subclassification of land in violation of Maryland Declaration of Rights Art. 15 and Code (1957, 1969 Repl. Vol., 1973 Cum. Supp.) Art. 81, § 14 (a) were considered and rejected in Shell Oil Company and Weil, which cases are controlling here.  Moreover, in Weil we said:
 
"So long as the end result of the assessment process is conscientiously, fairly and honestly to bring the assessment of all land to the same percentage of fair market value, a taxpayer is hardly in a position to contend that there is discrimination.  This gives reason to the rule enunciated in Rogan that the fact an adjoining property owner might be assessed at a lower proportion of its [***16]value would not make the assessment invalid unless it was improperly made.  Such a situation would contrast with that in Sears, Roebuck v. State Tax Comm., 214 Md. 550, 136 A. 2d 567 (1957), where, without statutory authority for differentiation, personal property and real estate were assessed at different percentages of their 'full cash value.'" Id. 266 Md. at 254-55.

   As Judge Singley recently pointed out for the Court in Comptroller of the Treasury v. Diebold, Inc., 279 Md. 401, 369 A. 2d 77 (1977), "judicial review of decisions of the Maryland Tax Court is severely limited," since Code (1957, 1969 Repl. Vol.) Art. 81, § 229 (l) provided:
 
"The circuit court . . . shall determine the case upon the record of the Maryland Tax Court . . .; provided, that, unless such order is erroneous as a matter of law or unsupported by substantial [*596] evidence appearing in the record, it shall be affirmed." n2

n2 The present provision, substantially similar in form, is found in Code (1957, 1975 Repl. Vol., 1976 Cum. Supp.) Art. 81, § 229 (o).

[***17]

   There is no suggestion that the land of the Taxpayers is overvalued. There is no evidence of any lack of good faith on the part of the assessing authorities.  No discrimination such as was shown in Sears, Roebuck v. State Tax Comm., 214 Md. 550, 136 A. 2d 567 (1957), has been shown.  No intentional violation of the essential principle of practical uniformity has been shown. Accordingly, we do not find the determination of the tax court erroneous as a matter of law. It follows, therefore, that the decision of the circuit court must be reversed.

   Judgment reversed; case remanded to the Circuit Court for Anne Arundel County for passage of an order affirming the decision of the Maryland Tax Court; appellees to pay the costs. 

GOVERNOR OF THE STATE OF MARYLAND et al. v. EXXONCORPORATION et al. 
No. 10, September Term, 1976
 
Court of Appeals of Maryland
 
279 Md. 410; 370 A.2d 1102; 1977 Md. LEXIS 912; 1977-1 TradeCas. (CCH) P61,297

 February  18, 1977, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Stay of Mandate Filed March 17, 3 Motions for Reconsideration Filed March 18 and 1 March 21, 1977; All Motions Denied April 13, 1977, See Opinion by Eldridge, J., at 456.  Notice of Appeal to Supreme Court of United States Filed June 23, 1977.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County reversed, and case remanded to that court for entry of a judgment in accordance with this opinion.  Appellees to pay costs.

CORE TERMS:  dealer, retail, station, oil, producer, refiner, gasoline, petroleum, service station, supplier, allowance, regulation, divestiture, marketing, interstate commerce, competitor, seller, reduction, commerce clause, Fourteenth Amendment, uniformly, discriminatory, temporary, equitable, milk, Constitutional Law, marketer, competitive, shortage, brand

COUNSEL: Jon F. Oster, Deputy Attorney General, and John A. Woodstock, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Stephen M. Cordi, Glenn E. Bushel, Steven P. Resnick and Thomas M. Wilson, III, Assistant Attorneys General, on the brief, for appellants.

   Amici curiae brief filed by Day Enterprises, Inc., etc., Booth's, Inc., Dolan Enterprises, Inc. and PLB Industries, Inc., Robert G. Levy, George W. Liebmann and Frank, Bernstein, Conaway & Goldman on the brief.

   Lewis A. Noonberg, with whom were William L. Marbury, David F. Tufaro, Piper & Marbury and Richard P. Delaney on the brief, for appellee Exxon Corporation. William Simon, with whom were Robert G. Abrams, Howrey & Simon, George W. Shadoan, Shadoan & Mack and A. M. Minotti on the brief, for appellee Shell Oil Company.  Lawrence S. Greenwald, with whom were Gordon, Feinblatt, Rothman, Hoffberger & Hollander on the brief, for appellee[***9] Gulf Oil Corporation.  Wilbur D. Preston, Jr., with whom were Stanley B. Rohd and Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellees Continental Oil Company and Kayo Oil Company.  Richard A. Reid, with whom were Royston, Mueller & McLean on the brief, for appellees Petroleum Marketing Corporation and Commonwealth Oil Refining Company, Inc. Fred W. Drogula, with whom were David Ginsburg, James E. Wesner, Ginsburg, Feldman & Bress, David F. Albright, Semmes, Bowen & Semmes and Arloe W. Mayne, General Counsel, on the brief, for appellee Ashland Oil, Inc. Submitted on brief by J. Edward Davis, Daniel T. Doherty and Weinberg & Green for appellee Phillips Petroleum Company.

JUDGES: Murphy, C. J., and Smith, Digges, Levine and Eldridge, JJ., and James C. Morton, Jr., and Ridgely P. Melvin, Jr., Associate Judges of the Court of Special Appeals, specially assigned.  Eldridge, J., delivered the opinion of the Court.

OPINIONBY: ELDRIDGE

OPINION: [*414] [**1105] In this case we are presented with several questions concerning the constitutionality of Chapter 854 of the Laws of Maryland of 1974, as amended by Chapter[***10] 608 of the Laws of 1975, and codified in Maryland Code (1957, 1972 Repl. Vol., 1976 Cum. Supp.), Art. 56, § 157E.  These chapters added the following provisions to the Motor Fuel Inspection Law (italicized portions are [**1106] those added by Chapter 608 of the Laws of 1975):

   "(B) After July 1, 1974, no producer or refiner of petroleum products shall open a major brand, secondary brand or unbranded retail service station in the State of Maryland, and operate it with [*415] company personnel, a subsidiary company, commissioned agent, or under a contract with any person, firm, or corporation, managing a service station on a fee arrangement with the producer or refiner. The station must be operated by a retail service station dealer.

   "(C) After July 1, 1975, no producer or refiner of petroleum products shall operate a major brand, secondary brand, or unbranded retail service station in the State of Maryland, with company personnel, a subsidiary company, commissioned agent, or under a contract with any person, firm, or corporation managing a service station on a fee arrangement with the producer or refiner. The station must be operated by a retail service station [***11]  dealer.

   "(D) Every producer, refiner, or wholesaler of petroleum products supplying gasoline and special fuels to retail service station dealers shall extend all voluntary allowances uniformly to all retail service station dealers supplied.

   "(E) Every producer, refiner, or wholesaler of petroleum products supplying gasoline and special fuels to retail service station dealers shall apply all equipment rentals uniformly to all retail service station dealers supplied.

   "(F) Every producer, refiner or wholesaler of petroleum products shall apportion uniformly all gasoline and special fuels to all retail service station dealers during periods of shortages on an equitable basis, and shall not discriminate among the dealers in their allotments.

   "(G) The Comptroller may adopt rules or regulations defining the circumstances in which a producer or refiner temporarily may operate a previously dealer-operated station.

   "(H) The Comptroller may permit reasonable exceptions to the divestiture dates specified by this [*416] section after considering all of the relevant facts and reaching reasonable conclusions based upon those facts."

   In addition to the authority granted in Paragraphs[***12] G and H to promulgate rules and regulations for the temporary operation of retail service stations by producers and refiners, and to permit reasonable exceptions to the specified divestiture dates, see 2 Maryland Register 228, the Comptroller has the power generally to promulgate rules and regulations for the administration of the Motor Fuel Inspection Law, Art. 56, § 157B (a).  Additionally, the Comptroller may direct those marketing petroleum products in violation of the Motor Fuel Inspection Law or regulations adopted pursuant thereto to cease such violations.  If the violations should continue, the Comptroller shall refer the matter to the Attorney General who is authorized to apply to the circuit courts for an injunction against the continuance of the violations, Art. 56, § 157B (b).  There are also criminal penalties for violation of the Motor Fuel Inspection Law, Art. 56, § 157K.

   Chapter 854 was signed into law on May 31, 1974, effective July 1, 1974.  On June 17, 1974, Exxon Corporation instituted an action in the Circuit Court for Anne Arundel County seeking a declaratory judgment pursuant to the Maryland Uniform Declaratory Judgments Act, Code (1974), § 3-401 [***13] et seq. of the Courts and Judicial Proceedings Article, that Chapter 854 be declared unconstitutional and invalid.  Additionally, Exxon sought injunctive relief prohibiting enforcement of Ch. 854.  Defendants in the action were the Governor of Maryland, the Attorney General of Maryland, and the Comptroller of the Treasury of Maryland.

   Thereafter Continental Oil Company and its subsidiary Kayo Oil Company, Shell Oil Company, Gulf Oil Corporation, Phillips Petroleum Company, Commonwealth Oil Refining Company, Inc. and its subsidiary Petroleum Marketing Corporation, and Ashland Oil, Inc., filed substantially similar actions, [**1107] and all actions were consolidated for trial.  The plaintiffs either directly or [*417]through their subsidiaries are all engaged in the direct retail marketing of petroleum products in the state of Maryland.  All, with the exception of Commonwealth and Ashland, are large multi-national, fully integrated oil companies engaged in the production, refining, transportation and marketing of petroleum products.  Commonwealth is a refiner dependent solely upon foreign crude oil supplies, and markets gasoline through its wholly owned subsidiary, Petroleum[***14] Marketing Corporation.  Ashland is primarily a refiner and marketer of petroleum products, but does engage in some limited production of crude oil. n1 Additionally, four independent retail dealers of Crown Central Petroleum Corporation were permitted to appear in support of the Act as amici curiae.

 n1 The plaintiffs are hereafter sometimes referred to as "the oil companies."

   The substance of the oil companies' attack on the validity of Chapter 854 is fairly represented by the allegations in Exxon's complaint.  The Act was challenged on several grounds.  Exxon alleged that the Act did not bear a real and substantial relationship to the health, safety, morals or welfare of the people of Maryland and thus denied it due process of law in violation of Art. 23 of the Maryland Declaration of Rights and the Fourteenth Amendment to the United States Constitution; that the Act discriminates against and unduly burdens interstate commerce and is invalid under the Commerce Clause, Art. 1, § 8 of the United States Constitution; [***15] that the Act Constituted a taking of its investment in retail service stations without just compensation in violation of Art. III, § 40 of the Maryland Constitution and the just compensation clause of the Fifth Amendment to the United States Constitution; that the Act, in prohibiting only producers and refiners of petroleum products from engaging in the retail sale of gasoline, denied them the equal protection of the laws in violation of Art. 23 and the Fourteenth Amendment; and that the provisions of the Act authorizing the Comptroller to issue rules and regulations permitting exceptions to the divestiture dates and allowing temporary operation of retail service stations [*418] by producers and refiners failed to set forth any standards to guide the Comptroller, and thus constituted an unlawful delegation of legislative authority in violation of Art. 8 of the Maryland Declaration of Rights.  Additionally, it was alleged that the provision of the Act providing for equitable allocation of petroleum products was in conflict with the Federal Emergency Petroleum Allocation Act of 1975, 15 U.S.C. 751 et seq., that the provision of the Act requiring uniform "voluntary allowances" [***16] was in conflict with the Robinson-Patman Act, 15 U.S.C. 13, and that, therefore, both provisions were invalid under the Supremacy Clause of Art. VI of the United States Constitution.  Finally, it was alleged that certain provisions of the Act are void for vagueness.

   On May 5, 1975, the circuit court, after a pre-trial conference, entered an order prohibiting the defendants from enforcing the provisions of Chapter 854 against the plaintiffs while the cases were pending.  Plaintiffs were ordered not to open any new retail service stations operated with company personnel nor to convert existing retail service stations to direct company operation without first notifying defendants of their intention to do so and reasons therefor. Motions for partial summary judgment were then filed by Exxon, Shell and Gulf with respect to those provisions of the Act requiring uniform "voluntary allowances" (Paragraph D) and uniform allocation of products during periods of shortages (Paragraph F) on the ground that both were in conflict with federal law.  The motion was granted with respect to Paragraph D on October 14, 1975. The case then proceeded to trial on the remaining issues.

   Extensive evidence[***17] was presented at trial relating to the nature of the retail marketing of gasoline and petroleum products in Maryland and the alleged effect that the Act would have on the industry.  Oil company officials, either by live testimony or by affidavits, testified that the Act would have [**1108]an adverse effect insofar as the consumer is concerned.  They testified that by prohibiting producers and refiners from operating retail service stations, producers and [*419] refiners would lose the necessary control over operations to gauge accurately consumer preferences for such innovative features as self-service stations, car wash facilities, and total car care service facilities offering a national guarantee, thus allegedly depriving the consumers in Maryland of the wide variety of automotive services now available.  They also testified that company operated stations n2 serve as training centers for independent dealers, insuring that consumers will be served by efficient, courteous and knowledgeable personnel at non-company operated stations. Additionally, executives of the three companies who market solely through company operated stations asserted that their type of low price-high [***18]volume stations could not be economically run with non-company personnel, and that, in all probability, they would be forced to withdraw from the Maryland market if the Act were to become effective.  Four economists, qualified as expert witnesses, also testified on behalf of the oil companies in opposition to the Act.  In general, they believed the Act would reduce competition and would therefore be detrimental to the interests of the consumer. This reduction of competition would occur because, in their view, the Act would inhibit new competitors from entering the market, force existing, highly aggressive independent marketers such as Petroleum Marketing Corporation and Commonwealth out of the market, and would also limit the variety of auxiliary services available to consumers by discouraging tests of innovative marketing techniques.

n2 As used in this opinion, "company operated station" refers to a retail service station operated directly by employees of a refiner or producer of petroleum products, or a subsidiary of a refiner or producer. It does not refer to retail service stations operated by a company engaged only in the marketing of petroleum products.

[***19]

   The State presented as its expert witness Dr. James M. Patterson, a professor of Business Administration, who is the author of two books on gasoline marketing. He testified that in his opinion the Act would actually enhance competition in gasoline marketing. Elimination of company operated stations would preserve "intertype competition," [*420] which he described as competition among the various types of competitors in the marketplace such as private brand, non-integrated, and major brand marketers. On the other hand, increased company operation of service stations would, in his view, enable major integrated oil companies to use increased profits, resulting from the recent increases in crude oil prices, to drive various "price competitors" from the market as well as divert available gasoline supplies from independent, unbranded marketers. Such actions would, eventually, reduce overall competition in gasoline marketing. Evidence was also adduced by the State to show that several partially or fully integrated oil companies planned either to increase the number of company operated stations or to convert all stations to company operations.  This, the State argued, tended to[***20] support Dr. Patterson's opinion that the major oil companies would seek to reduce competition among gasoline marketers by reducing the number of competitors.

    Significant evidence concerning the history and purpose of Chapter 854 was also presented.  On June 13, 1973, the Governor requested that the Comptroller conduct a study of gasoline retailing in Maryland.  The purpose of the study was to determine if the then existing shortage of fuel was real or contrived, and also to determine whether company owned and operated service stations were receiving larger allocations of gasoline than dealer operated or independent stations. This request was motivated by the large number of complaints received by the Governor's office concerning the availability of gasoline, and the fact that some brands of gasoline appeared to be available in unlimited quantities while other brands were available only in limited quantities.  On June 29, 1973, questionnaires prepared by the Gasoline Tax Division [**1109] of the Comptroller's office were sent to registered gasoline service stations in the state.  The results of this survey were tabulated, and a written analysis of the survey entitled "Results[***21] and Analysis of Service Station Dealers Questionnaire" was submitted to the Governor on September 6, 1973.

   The results of the survey were tabulated according to the [*421] type of service station responding to the questionnaire.  Service stations were divided into four categories: retail service stations leased to a dealer by a major oil company; independently owned stations operated under a major brand; unbranded stations; and company operated stations. According to the survey, company operated stations were "either unrestricted in their purchases or were allocated 100% of their needs." Independently owned stations operated under a major brand name, however, were characterized as the "most abused" category, with a wide fluctuation in the percentage allocation based upon prior year purchases. According to the report, many were forced to close or restrict hours of operation because of decreased product availability.  Unbranded stations and major stations leased to dealers fared better than independently owned stations, but both categories experienced reduced allocations from suppliers. The report concluded that company operated stations "were virtually unaffected insofar as [***22]gasoline availability was concerned" while both branded and unbranded independents experienced "the greatest difficulty in obtaining gasoline" and the "greatest cost per gallon increase."

   Subsequent to submission of the report to the Governor, and after several discussions with the Governor, the Comptroller's office forwarded proposed legislation to the Governor on January 7, 1974, designed to correct the inequities in the distribution and pricing of gasoline reflected by the survey. Bills identical to the proposed legislation drafted by the Comptroller's office were introduced in both houses of the General Assembly.

   The bills were then referred to the Senate Economic Affairs Committee and the House Economic Matters Committee, and both committees held public hearings on the bills.  Representatives of the major oil companies appeared at both hearings in opposition to the proposed legislation.  They denied allegations that the shortage of gasoline was contrived and that company operation of service stations promoted inequitable product allocation, cancellation of dealer leases and control of retail prices.  The oil company [*422] representatives believed that implementation of[***23] the legislation would decrease competition and would therefore be detrimental to the interests of Maryland consumers.  Proponents of the bills also appeared at the hearings, including a representative of the Greater Washington/Maryland Service Station Association. He cited several recent examples of cancellations of dealer leases and conversions to company operation, as well as reduced allocation of products to dealers, to support his allegations that the major oil companies intended to control and monopolize retail marketing of gasoline by reducing and eliminating competition from independent dealers. Furthermore, he referred to a congressional report on the federal Petroleum Allocation Act expressing a similar concern over increased involvement of major oil companies in the retail marketing of gasoline. See Conference Report No. 93-628, 93d Cong., 1st Sess., reprinted in [1973] U. S. Code Cong. & Ad. News, 2688, 2707.  The Comptroller also appeared in support of the Act, and submitted copies of his report and analysis of the dealer questionnaires to both committees.

   The House and Senate Committees reported favorably on the bills.  Both bills were amended by the removal[***24] of a prohibition against wholesalers operating retail service stations and by the addition of the provisions authorizing the Comptroller to adopt rules and regulations permitting temporary operation of stations by producers and refiners. In addition, the Senate bill was amended so as to authorize the Comptroller to allow reasonable exceptions to the divestiture dates specified in the bill.  Both bills were then passed during the 1974 session of the General Assembly and submitted [**1110] to the Governor for his approval.  The Governor held a special veto hearing on the bills at which both proponents and opponents again testified.  Thereafter, the House bill was vetoed, Laws of Maryland of 1974, pp. 3137-3138, and the Senate bill was signed into law by the Governor, becoming Chapter 854 of the Laws of Maryland of 1974.

   At the conclusion of the trial, the circuit court filed a [*423] decree declaring that Chapter 854 of the Laws of 1974 and Chapter 608 of the Laws of 1975 were unconstitutional and void.  An injunction was also filed, enjoining the defendants from enforcing the statutes.  Although the circuit court's holding was based primarily on the ground that the Act violated[***25] the due process clauses, the court also indicated that the Act was invalid for several other reasons raised by the oil companies.  The defendants appealed from the judgment to the Court of Special Appeals, and we issued a writ of certiorari prior to a decision by the Court of Special Appeals.

   On this appeal, the oil companies reiterate their challenge to the Act on all of the constitutional grounds raised below.

   (1) Due Process

   The oil companies' main attack upon the statute is on so-called "substantive due process" grounds.  They contend, as the trial court held, that the divestiture provisions of the Act (Paragraphs B and C) are an invalid exercise of the State's police power in violation of the Due Process Clause of the Fourteenth Amendment and Art. 23 of the Maryland Declaration of Rights. n3

n3 Art. 23 of the Maryland Declaration of Rights provides that "[n]o man ought to be . . . deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land." As we pointed out last term in Westchester West No. 2 v. Mont. Co., 276 Md. 448, 465 n. 11, 348 A. 2d 856, 866 (1975),
 
 "This Court has long equated Art. 23 with the Due Process Clause of the Fourteenth Amendment. E.g., Bowie Inn v. City of Bowie, supra, 274 Md. at 235 n. 1; In re Easton, 214 Md. 176, 187, 133 A. 2d 441 (1957); Solvuca v. Ryan & Reilly Co., 131 Md. 265, 270, 101 A. 710 (1917); Pub. S. Com. v. N. C. Rwy Co., 122 Md. 355, 386, 90 A. 105 (1914); Baltimore Belt R.R. v. Baltzell, 75 Md. 94, 99, 23 A. 74 (1891)."

[***26]

   This Court has on numerous occasions in recent years discussed the standards applicable when the constitutionality of economic regulatory legislation is challenged on substantive due process grounds.  Westchester West No. 2 v. Mont. Co., 276 Md. 448, 348 A. 2d 856 (1975); Steuart Petroleum Co. v. Board, 276 Md. 435, 347 A. 2d 854 (1975); Bowie Inn v. City of Bowie, 274 Md. 230, 335 A. 2d 679 (1975); Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496, 312 A. 2d 216 (1973); Md. Bd. of Pharmacy v. Sav-A-Lot, 270 Md. 103, [*424] 311 A. 2d 242 (1973); Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 300 A. 2d 367 (1973); Potomac Sand & Gravel v. Governor, 266 Md. 358, 293 A. 2d 241, cert. denied, 409 U.S. 1040, 93 S. Ct. 525, 34 L.Ed.2d 490 (1972); Brooks v. State Board, 233 Md. 98, 195 A. 2d 728 (1963); Allied American Co. v. Comm'r, 219 Md. 607, 150 A. 2d 421 (1959). Recent Supreme Court decisions in this area are North Dakota Pharmacy Bd. v. Snyder's Stores, 414 U.S. 156, 94 S. Ct. 407, 38 L.Ed.2d 379 (1973); Ferguson v. Skrupa, 372 U.S. 726, 83 S. Ct. 1028, 10 L.Ed.2d 93, 95 A.L.R.2d 1347 (1963); and Williamson v. Lee Optical Co.[***27] , 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955).

   Last term, in Westchester West No. 2 v. Mont. Co., supra, 276 Md. at 454-455, in holding that a Montgomery County rent control law did not violate the Due Process Clause of the Fourteenth Amendment or Art. 23 of the Maryland Declaration of Rights, we discussed the function of the courts in reviewing regulatory legislation alleged to be violative of the due process clauses.  We emphasized that the function of the courts in this area is "very limited," and went on to say (276 Md. at 455):
 
"Unless the exercise of the police power by the Legislature is shown to be arbitrary, oppressive or unreasonable, the courts will not interfere with it. Bowie Inn v. City of Bowie, supra, 274 Md. at 236; Salisbury Beauty Schools v. St. Bd., supra, 268 Md. at 48. Moreover, the wisdom or expediency of a law adopted in the exercise of the police power of a state is not subject to judicial review, and such a statute will not be held void if there are any considerations relating to the public welfare by which it can be supported. Bowie Inn v. City of Bowie, supra, 274 Md. at 236; [**1111] Sav-A-Lot, supra , 270 Md. at 106;[***28] Salisbury Beauty Schools v. St. Bd., supra, 268 Md. at 48."
 
Judicial deference to legislative judgment is appropriate when reviewing legislation dealing with economic problems.  In Ferguson v. Skrupa, supra, in holding constitutional a [*425] statute permitting only attorneys to engage in the business of debt adjustment, the Supreme Court said (372 U.S. at 730-732, 83 S. Ct. at 1031-1032):
 
"We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.  As this Court stated in a unanimous opinion in 1941, 'We are not concerned . . . with the wisdom, need, or appropriateness of the legislation.' Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to 'subject the State to an intolerable supervision hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure.' It is now settled that States 'have power to legislate against what are found to be injurious practices in their internal commercial[***29] and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law.'

   * * *

   ". . . We refuse to sit as a 'superlegislature to weigh the wisdom of legislation,' and we emphatically refuse to go back to the time when courts used the Due Process Clause 'to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.'"
 
And as was said in Williamson v. Lee Optical Co., supra, 348 U.S. at 488, 75 S. Ct. at 464, quoted by us recently in Steuart Petroleum Co. v. Board, supra, 276 Md. at 447, the wisdom of the Act is not for us to judge as "[i]t is enough that there is [*426] an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it."

   A statute enacted by the Legislature in the exercise of the police power "is presumed to be valid and one attacking its validity has the burden of affirmatively and clearly establishing its invalidity." Salisbury Beauty Schools v. St. Bd., supra, 268 Md. at 48. While the oil[***30] companies have presented evidence questioning the wisdom of the Act and perhaps raising doubts as to the efficacy of the Act in achieving its purpose of preserving a highly competitive retail gasoline market, they have failed to meet their burden.  It has not been demonstrated that the Act is "arbitrary" or that there are no "considerations relating to the public welfare by which it can be supported." Quite to the contrary, the history of Chapter 854 establishes that it was the product of a careful and deliberate process involving a study of retail marketing of gasoline products in Maryland as well as three public hearings at which opponents of the Act, including some of those now challenging it, were able to present their objections to both the Legislature and the Governor.

   The oil companies do not contend that the Legislature may not under any circumstances limit the nature of business which they may conduct in the state. See, e.g., Daniel v. Family Ins. Co., 336 U.S. 220, 69 S. Ct. 550, 93 L. Ed. 632, 10 A.L.R.2d 945 (1949); Asbury Hospital v. Cass County, 326 U.S. 207, 66 S. Ct. 61, 90 L. Ed. 6 (1945); Brooks v. State Board, supra. Rather, the oil companies ask us[***31] to review the evidence [**1112] concerning the possible effect of the Act and to substitute our judgment for that of the Legislature.

   In Bowie Inn v. City of Bowie, supra, we were presented with a similar situation.  There, the city council of Bowie, in order to control a problem of roadside litter, enacted an ordinance, after a public hearing, requiring a deposit to be collected on all soft drink and malt beverage containers which would be refunded upon return of the container.  There, as here, those challenging the ordinance offered evidence that the ordinance would not be effective in [*427] achieving its stated goal, and asked the Court to decide from such evidence that the city council acted arbitrarily and unreasonably.  We rejected this contention in light of evidence presented to the city council that there was a need for litter control and in view of the fact that the means adopted by the city council could conceivably be effective in reducing the problem of litter.

   Here the Legislature was presented with evidence that refiners and producers were favoring company operated stations in the allocation of gasoline. The Comptroller's report showed that, because[***32] of the inability to obtain adequate supplies of gasoline, some service station dealers were forced to close.  Evidence was also presented that many dealer operated stations were being converted to company operation.  The Legislature could reasonably conclude that control of the retail gasoline market by producers and refiners would decrease competition and that the continued existence of independent retail dealers was necessary to preserve competition. n4 Exclusion of producers and refiners may conceivably be a reasonable means of preserving competition and preventing monopolistic control of gasoline marketing by a few large oil companies.  Divestiture of retail gasoline stations by producers and refiners as a means of preserving competition in retail gasoline marketing recently has been recommended by at least two congressional committees.  See H. R. Rep. No. 94-1762, 94th Cong., 2d Sess. (1976); S. Rep. No. 94-1005, 94th Cong., 2d Sess. (1976).  Indeed, in Federal Trade Comm'n v. Sun Oil Co., 371 U.S. 505, 528, 83 S. Ct. 358, 371, 9 L.Ed.2d 466 (1963), the Supreme Court recognized that elimination of retail service [*428] station dealers through forward vertical integration[***33] may be an "evil" requiring legislative action.

n4 The oil companies contend that the effect of the Act will be to reduce competition by excluding from the market certain aggressive competitors. The Legislature, however, has determined that competition from producers and refiners could ultimately result in the destruction of a competitive retail gasoline market.  In Blum v. Engelman, 190 Md. 109, 115, 57 A. 2d 421 (1948), in upholding the validity of the Maryland Unfair Sales Act, this Court noted that certain competitive practices may be harmful to the public welfare, and that the Legislature is "free to adopt whatever economic policy may reasonably be deemed to promote public welfare, whether by promoting free competition by statutes aimed at monopolies or by curbing harmful competition . . . ." See also Goldsmith v. Mead Johnson & Co., 176 Md. 682, 7 A. 2d 176 (1939), which upheld the Maryland Fair Trade Act.

   The oil companies have presented evidence which casts some doubt on the wisdom of the Act.  The[***34] State's expert witness conceded that the Act, by excluding certain partially integrated marketers, could in some respects be anti-competitive, although he believed that it would, on the whole, promote competition.  However, as discussed above, the courts may not substitute their judgment for that of the Legislature.  Especially where reviewing legislation dealing with a serious problem in a new and untried fashion, the courts are under a special duty to respect the legislative judgment as to the proper means of solving the problem.  Legislation prohibiting operation of retail service stations by producers and refiners of petroleum has been proposed in several states as well as in Congress but only recently has been enacted by several states.  See Note, Gasoline Marketing Divestiture Statutes: A Preliminary Constitutional and Economic Assessment, 28 Vand. L. Rev. 1277 (1975). As of now there has been no evidence by which to judge the effects of these statutes and predictions as to the effects of the Act are at best speculative.  In Bowie Inn v. City of Bowie, supra, we commented on the importance [**1113] of permitting new legislation to be tested, as follows (274 Md. [***35] at 237-238):
 
"Here, invalidation of the ordinance would deprive the City Council of Bowie and any other legislative body contemplating such a law of any opportunity to discover whether the ordinance will be good, bad or indifferent in its results. The words of Mr. Justice Frankfurter in American Federation of Labor v. American Sash and Door Co., 335 U.S. 538, 553, 69 S. Ct. 258, 265, 93 L. Ed. 222, 6 A.L.R.2d 481 (1949) (concurring opinion), are particularly appropriate:

   'Even where the social undesirability of a law may be convincingly urged, invalidation of the law by a court [*429] debilitates popular democratic government.  Most laws dealing with economic and social problems are matters of trial and error.  That which before trial appears to be demonstrably bad may belie prophesy in actual operation.  It may not prove good, but it may prove innocuous.  But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat.  Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests -- the people.'" [***36]

   For these reasons, we hold that the court below erred in holding that the Act was violative of the Due Process Clause of the Fourteenth Amendment or Art. 23 of the Maryland Declaration of Rights.

   (2) Commerce Clause

   The oil companies also contend that the divestiture provisions of the Act are invalid under the Commerce Clause, Art. I, § 8 of the United States Constitution.  The companies argue that the purpose of the Act is to protect local retail service station operators from competition by those engaged in interstate commerce. To accomplish this purpose, it is contended that the Act denies out-of-state competitors access to local retail gasoline markets and thus discriminates against interstate commerce. In support of this contention, the oil companies rely on H. P. Hood & Sons v. DuMond, 336 U.S. 525, 69 S. Ct. 657, 93 L. Ed. 865 (1949).

   The Supreme Court has on several occasions struck down state statutes regulating the production and sale of a commodity as violative of the Commerce Clause where it has found that the purpose and effect of the statute was solely to protect local economic interests by discriminating against interstate commerce. In Baldwin v. [***37]  G.A.F. Seelig, 294 U.S. 511, 55 S. Ct. 497, 79 L. Ed. 1032, 101 A.L.R. 55 (1935), a New [*430] York statute establishing a minimum price to be paid out-of-state producers of milk to be sold locally was held unconstitutional.  The Court found that the practical effect of the statute was to protect local producers from competition by excluding milk produced in other states from the New York market.  Another New York statute was held unconstitutional in H. P. Hood & Sons v. DuMond, supra. There the statute granted the State Commissioner of Agriculture the authority to deny milk processors a license to operate milk receiving and processing plants if it were found that such plants would lead to "destructive competition in a market already adequately served." The petitioner, a milk processor who operated several receiving and processing plants in New York for milk to be sold in Massachusetts, was denied a license to operate a new facility.  The Court determined that a license was denied to prevent exportation of milk from New York during a time when there was a temporary shortage of milk in the area in which the plant was to be located.  Relying on the principle that the states [***38]may not "advance their own commercial interests by curtailing the movement of articles of commerce," the Court held that the statute as applied violated the Commerce Clause and was therefore unconstitutional.  336 U.S. at 535.

   Similarly, in Dean Milk Co. v. Madison, 340 U.S. 349, 71 S. Ct. 295, 95 L. Ed. 329 (1951), the Court held unconstitutional a municipal ordinance which prohibited the [**1114] sale of pasteurized milk in the city of Madison, Wisconsin, unless processed and bottled within a five mile radius of the center of town and which required that the source of supply of all milk be inspected by city officials, but which imposed a twenty-five mile limit on the area in which inspectors would travel.  The petitioner was an Illinois corporation whose milk supply and processing plants were outside of the geographic limitations imposed by the ordinance.  While recognizing that the city had a legitimate interest in protecting the health of its citizens by insuring that only wholesome milk be sold within its boundaries, the Court found that the ordinance, as in Baldwin v. G.A.F. Seelig, supra, had the [*431] effect of excluding importation of wholesome milk produced[***39] out of state.  Thus, the ordinance discriminated against interstate commerce by "erecting an economic barrier protecting a major local industry against competition from without the state" in violation of the Commerce Clause. 340 U.S. at 354.

   A feature common to all three of these regulatory schemes was that they burdened the free flow of goods in commerce between the states by effectively hindering either the import or export of goods.  And whether this burden on the movement of goods be direct and apparent on the face of the statute as in Baldwin v. G.A.F. Seelig, supra, or indirect as in H. P. Hood & Sons v. DuMond, supra, and Dean Milk Co. v. Madison, supra, the Court could conclude that the purpose and effect of the statute was primarily to protect a local industry by discriminating against interstate commerce. The Maryland statute here under consideration, however, differs in several substantial ways.

   First, Chapter 854 would not in any way restrict the free flow of petroleum products into or out of the state.  The Act merely regulates a wholly intrastate activity, the retail marketing of gasoline within the state.  Producers and refiners would still remain[***40] free to import and sell petroleum products to wholesalers and to retail service station dealers. The only restriction is that producers and refiners may not operate retail service stations in Maryland with their own employees but must do so with retail service station dealers.

    Second, although the oil companies contend that the purpose of the Act was to protect local economic interests from the competition of oil companies engaged in interstate commerce, in view of the legislative history of the Act we cannot agree with this contention.  There is every indication that the purpose of the statute was to preserve competition within the retail gasoline marketing industry in Maryland.  As previously discussed, the Comptroller's report, as well as other evidence presented to the Legislature, indicated that company operated stations received greater allocations of gasoline during a period of shortage than did dealer operated stations, forcing many dealers out of business.  Moreover, [*432] there was evidence that the oil companies intended to increase the number of company operated stations. The General Assembly, after considering the activities of producers and refiners in the [***41]industry, concluded, as have several congressional committees, that the recent trend of increased direct operation of service stations by producers and refiners, if allowed to continue, could substantially decrease competition and lead to the control of that market by a few major oil companies.  See H. R. Rep. 94-1762, 94th Cong., 2d Sess. 28 (1976); H. R. Rep. No. 1423, 84th Cong., 1st Sess. 17 (1955).  Thus, the purpose was not to protect Maryland interests from out-of-state competition.

   Finally, the Act does not in effect discriminate against out-of-state economic interests as opposed to local interests.  The Act is equally applicable to all producers and refiners. While oil is not produced in Maryland, and is not presently being refined in Maryland, there are producers or refiners which are Maryland corporations, or are headquartered here, or have substantial facilities here, or do a significant portion of their business here.  All such "Maryland" businesses are prohibited by the Act from operating retail service stations. If a refiner were to build refineries in Maryland, [**1115] and were to engage in business solely within Maryland, it would be prohibited by the[***42] Act from marketing through a company operated station. On the other hand, out-of-state and Maryland retailers are treated the same.  An out-of-state marketer not engaged in producing or refining may continue to market in Maryland through retail service stations operated with company personnel.

   The only Supreme Court case of which we are aware which considers a challenge to a state divestiture statute on Commerce Clause grounds is Crescent Oil Co. v. Mississippi, 257 U.S. 129, 42 S. Ct. 42, 66 L. Ed. 166 (1921). n5 There, a [*433]Mississippi statute prohibited both out-of-state and Mississippi corporations engaged in the manufacture of cotton seed oil or cotton seed meal from owning or operating cotton gins.  It was argued that the statute was enacted because the legislature believed that manufacturers of cotton seed oil or meal, if also allowed to operate cotton gins, would depress the price charged for ginning in order to suppress competition in the ginning industry.  The petitioner contended that the statute imposed a direct and unconstitutional burden on interstate commerce. The Court rejected this contention, pointing out that the statute regulated only a manufacturing[***43] process conducted within the state.

n5 See also Paramount Pictures v. Langer, 23 F. Supp. 890, 895 (D. N.D. 1938), remanded with directions to dismiss on grounds of mootness, 306 U.S. 619, 59 S. Ct. 641, 83 L. Ed. 1025 (1939), where a statute prohibiting the operation of motion picture theaters in the state of North Dakota which were owned, controlled, or managed by producers or distributors of motion picture films was held not to violate either the due process clause or the equal protection clause of the Fourteenth Amendment or the Commerce Clause.

   In holding in Crescent Oil that the Mississippi statute did not violate the Commerce Clause, the Supreme Court noted that the activity to be regulated was intrastate manufacturing and not interstate commerce. While we recognize that the distinction between "manufacturing" and "commerce" is no longer the test of congressional power to regulate activities under the Commerce Clause, Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942),[***44] it may be of some significance in determining a state's authority.  The fact that Congress may regulate in this area does not necessarily result in the loss of the state's power to regulate an intrastate activity which may possibly have some effect on interstate commerce. The Supreme Court, in Cities Service Co. v. Peerless Co., 340 U.S. 179, 186-187, 71 S. Ct. 215, 219-220, 95 L. Ed. 190 (1950), stated:

   "The Commerce Clause gives to the Congress a power over interstate commerce which is both paramount and broad in scope.  But due regard for state legislative functions has long required that this power be treated as not exclusive.  Cooley v. Port Wardens, 12 How. 299 (1851). It is now well settled that a state may regulate matters of local concern over which federal authority has not been exercised, even though the regulation has some impact on interstate commerce. Parker v. Brown, [*434] 317 U.S. 341 (1943); Milk Control Board v. Eisenberg Farm Products, 306 U.S. 346 (1939); South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177 (1938). The only requirements consistently recognized have been that the regulation not discriminate against or place [***45]an embargo on interstate commerce, that it safeguard an obvious state interest, and that the local interest at stake outweigh whatever national interest there might be in the prevention of state restrictions.  Nor should we lightly translate the quiescence of federal power into an affirmation that the national interest lies in complete freedom from regulation. South Carolina Highway Dept. v. Barnwell Bros., supra."
 
See also Huron Cement Co. v. Detroit, 362 U.S. 440, 443-444, 80 S. Ct. 813, 4 L.Ed.2d 852, 78 A.L.R.2d 1294 (1960); Breard v. Alexandria, 341 U.S. 622, 634, 71 S. Ct. 920, 95 L. Ed. 1233, 35 A.L.R.2d 335 (1951); Panhandle [**1116] Co. v. Michigan Comm'n, 341 U.S. 329, 71 S. Ct. 777, 95 L. Ed. 993 (1951); Bowie Inn v. City of Bowie, supra, 274 Md. at 244-245.

   More recently, the Court has indicated that in determining the validity of a state statute affecting interstate commerce, a balancing of the state interest involved in relation to the burden imposed upon interstate commerce may sometimes be appropriate.  This "weighing test" was described in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L.Ed.2d 174 (1970), [***46]as follows:

   "Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. [*435] Detroit, 362 U.S. 440, 443. If a legitimate local purpose is found, then the question becomes one of degree.  And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.  Occasionally the Court has candidly undertaken a balancing approach in resolving these issues, Southern Pacific Co. v. Arizona, 325 U.S. 761, but more frequently it has spoken in terms of 'direct' and 'indirect' effects and burdens.  See, e.g., Shafer v. Farmers Grain Co., supra [268 U.S. 189]."

   Applying these principles, we conclude that the divestiture[***47] provisions of the Act do not violate the Commerce Clause. The Act does not discriminate against interstate commerce as all producers and refiners, whether in or out of the state, are affected equally.  The promotion of the economic welfare is a legitimate interest of a state, Pike v. Bruce Church, Inc., supra, 397 U.S. at 143; Parker v. Brown, 317 U.S. 341, 363, 63 S. Ct. 307, 87 L. Ed. 315 (1943), and it has long been recognized that the states have the power to pass legislation to promote competition by preventing monopolistic activity in restraint of trade, Watson v. Buck, 313 U.S. 387, 403-404, 61 S. Ct. 962, 85 L. Ed. 1416, 136 A.L.R. 1426 (1941); Waters-Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 107, 29 S. Ct. 220, 53 L. Ed. 417 (1909).

   The record, on the other hand, fails to establish that the Act will, to a significant degree, burden interstate commerce. The allegations of the oil companies that the restrictions placed on producers and refiners will limit the availability of products and services to those traveling in interstate commerce is, at best, highly speculative.  Bowie Inn v. City of Bowie, supra.  Most of the producers and refiners have in[***48] the past operated only a small percentage of the retail service stations which they supply.  The vast majority of retail service stations in Maryland, supplying [*436] both interstate and intrastate travelers, are operated by independent dealers. n6 It is true that three of the oil companies involved in this action do market exclusively through company operated stations, n7 and officials of these companies indicated at trial that they might be [**1117] forced to withdraw from the Maryland market if the Act were to become effective.  However, at least two of these company witnesses on cross-examination indicated that no firm decision had been made to withdraw if the Act were to become effective, and that it still might be possible to distribute products in Maryland both through dealer operations and on the wholesale market.  It therefore appears that there will be no significant disruption of the flow of petroleum products into the state nor in the distribution of those products to those in interstate commerce. We believe that the state's interest, as determined by the Legislature, outweighs any slight burden which the Act may impose on interstate commerce.

n6 For example, according to facts stipulated by the parties, as of July 1, 1974, of the 632 stations affiliated with Exxon Corporation in the state of Maryland, only 36 were company operated.  Similarly, only 1 of 219 stations affiliated with Gulf Oil Corporation was company operated.  Phillips Petroleum Company, with 131 Maryland stations, operated only 13 with company personnel. Shell Oil Company had 284 Maryland affiliated stations, but only 1 was company operated.  Texaco, Incorporated, which had 307 affiliated stations in Maryland as of July 1, 1974, had no station operated with company personnel.

[***49] 

n7 Ashland Oil, Inc.; Kayo Oil Company; Petroleum Marketing Corporation.  As of July 1, 1974, Ashland had 19 stations in Maryland; Kayo, 16 stations; and Petroleum Marketing Corporation, 21 stations.

   For all of the above reasons, the divestiture provisions of the Maryland Act are not unconstitutional under the Commerce Clause.

   (3) Unconstitutional Taking

   The trial court held that the divestiture provisions of the Act constitute a taking of private property without just compensation, in violation of Art. III, § 40 of the Maryland Constitution and the just compensation clause of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment.

   For government restriction upon the use of property to [*437] constitute a taking in the constitutional sense, so that compensation must be paid, the restriction must be such that it essentially deprives the owner of all beneficial uses of his property.  As this Court stated in Baltimore City v. Borinsky, 239 Md. 611, 622, 212 A. 2d 508 (1965):

   "The legal principles whose application determines[***50] whether or not the restrictions imposed . . . on the property involved are an unconstitutional taking are well established.  If the owner affirmatively demonstrates that the legislative or administrative determination deprives him of all beneficial use of the property, the action will be held unconstitutional.  But the restrictions imposed must be such that the property cannot be used for any reasonable purpose.  It is not enough for the property owners to show that the . . . action results in substantial loss or hardship."
 
Goldblatt v. Hempstead, 369 U.S. 590, 592, 82 S. Ct. 987, 8 L.Ed.2d 130 (1962); United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S. Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958); Bureau of Mines v. George's Creek, 272 Md. 143, 165, 321 A. 2d 748 (1974); Rockville v. Stone, 271 Md. 655, 663-664, 319 A. 2d 536 (1974).

   The Maryland Act, in prohibiting producers and refiners from directly operating retail service stations, clearly does not constitute a "taking" in the constitutional sense.  The divestiture provisions of the Act do not deprive producers and refiners owning retail service stations of all beneficial uses of their property, [***51] or even of the existing and presumably most profitable use of their property.  As previously discussed, the majority of retail service stations are now operated by dealers and not employees.  Thus the Act will have less impact, for example, than the zoning provisions upheld in Goldblatt v. Hempstead, supra, or Baltimore City v. Borinsky, supra, which deprived the owners of the most profitable use of the property.  The relatively few service stations directly operated by producers and refiners may continue to be used as service [*438] stations, as producers and refiners may lease the property to dealers. The Maryland Act does not prohibit an oil company from owning a retail service station or having the station operated as a retail outlet for that company's products.  It merely requires that the station be operated by a retail dealer rather than by company employees.

   Moreover, allowance for the temporary operation by refiners and producers, as well as reasonable exceptions to the divestiture dates, as provided by the Act in Paragraphs G and H, will also lessen the impact of the divestiture provisions on producers and refiners.

   In sum, the restrictions imposed by the[***52] divestiture provisions of the Act on the manner in which oil companies may continue [**1118] to use their property for retail service station purposes, i.e., using retail dealers instead of employees, does not amount to a "taking" of private property in violation of the federal or state constitutions.

   (4) Equal Protection

   The oil companies argue, and the trial court held, that the divestiture provisions of the Act constitute a denial of the equal protection of the laws in that they prohibit only producers and refiners of petroleum products from operating retail service stations while permitting "wholesalers, mass merchandisers, food retailers, and gasoline marketers" to operate retail service stations. It is claimed that the classification is arbitrary and without any rational basis. n8

n8 The oil companies, both at trial and on appeal, contend that the Act deprives them of the equal protection of the laws in violation of both the Fourteenth Amendment to the United States Constitution and the Due Process Clause, Art. 23, of the Maryland Declaration of Rights.  The Maryland Constitution does not contain an express equal protection clause as does the Fourteenth Amendment. The trial court's equal protection holding was apparently premised upon the Due Process Clause of the Maryland Declaration of Rights.  For the purposes of appeal, we shall assume that the Due Process Clause, Art. 23, embodies the concept of equal protection.  Bruce v. Dir., Chesapeake Bay Aff., 261 Md. 585, 600, 276 A. 2d 200 (1971); Celanese Corporation v. Davis, 186 Md. 463, 471-472, 47 A. 2d 379 (1946). Cf. Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954). We shall further assume that the standard of review under both the Maryland Constitution and the Equal Protection Clause of the Fourteenth Amendment is the same where economic regulation is challenged on equal protection grounds.

[***53]

   [*439] The proper standard of review when economic regulation is challenged as violating the Equal Protection Clause of the Fourteenth Amendment has been most recently discussed by the Supreme Court in City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 2516-2517, 49 L.Ed.2d 511 (1976):
 
"Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.  States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.  . . . In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines, see, e.g., Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S. Ct. 405, 407, 96 L.Ed. 469 (1952), in the local economic[***54] sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment."
 
If the classification is not purely arbitrary and has a rational basis, the statute does not violate the Equal Protection Clause.  McGowan v. State of Maryland, 366 U.S. 420, 425-428, 81 S. Ct. 1101, 1104-1106, 6 L.Ed.2d 393 (1961); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S. Ct. 337, 55 L. Ed. 369 (1911); Bowie Inn v. City of Bowie, supra, 274 Md. at 240-241; Adm'r, Motor Veh. Adm. v. Vogt, 267 Md. 660, 670-678, 229 A. 2d 1 (1973); Brooks v. State Board, supra, 233 Md. at 114-115. Moreover, a statutory classification will not be held to violate the equal protection clause if there exists any state of facts which reasonably can be conceived to sustain it.  Davidson v. Miller, 276 Md. 54, 69-70, [*440] 344 A. 2d 422 (1975); Matter of Trader, 272 Md. 364, 391-392, 325 A. 2d 398 (1974).

   The statutory distinction between producers and refiners on the one hand, and other sellers of petroleum products on the other, is not arbitrary.  As discussed previously, the Legislature determined that[***55] prohibiting producers and refiners from operating retail service stations was necessary to preserve competition.  Furthermore, the [**1119] Legislature may well have determined that discrimination against retail service station dealers and in favor of company operated stations, in the distribution of petroleum products, was an evil which could be cured by preventing producers and refiners from operating retail service stations. Thus, the classification bears a rational relationship to the objective of the Act of preserving competition and fairness within the Maryland retail gasoline marketing industry.  Consequently, there is no merit to the oil companies' argument that the Act denies them the equal protection of the laws.

   (5) Unlawful Delegation

   The contention that Paragraphs G and H of the Act constitute an unlawful delegation of legislative authority in violation of Art. 8 of the Maryland Declaration of Rights is also without merit.  Ordinarily when legislative authority is delegated to administrative officials, there must be sufficient standards for the guidance of the administrative officials.  However, it has been recognized that the complexity of modern economic conditions[***56] may make it impossible to tailor specific guidelines for every conceivable situation and that latitude in granting discretion is necessary.  As stated in Pressman v. Barnes, 209 Md. 544, 555, 121 A. 2d 816 (1956):
  
"It is recognized that it would not always be possible for Legislature or City Council to deal directly with the multitude of details in the complex situations upon which it operates.  . . . The modern tendency of the courts is toward greater [*441] liberality in permitting grants of discretion to administrative officials in order to facilitate the administration of the laws as the complexity of governmental and economic conditions increases."
 
See also Montgomery County v. Walsh, 274 Md. 502, 523-524, 336 A. 2d 97 (1975), appeal dismissed, 424 U.S. 901, 96 S. Ct. 1091, 47 L.Ed.2d 306 (1976). It would obviously be impractical for the Legislature to set specific guidelines to govern all situations where exceptions to the divestiture dates would be reasonable or where it would be necessary for a producer or refiner to operate a service station on a temporary basis.  This grant of authority to the Comptroller is necessary and is constitutional. [***57]

   (6) Conflict with the Federal Emergency Petroleum Allocation Act

   The trial court held that Paragraph F of the Maryland Act conflicts with and is therefore preempted by the Federal Emergency Petroleum Allocation Act of 1973.

   Paragraph F of the Act provides that during periods of shortages, producers, refiners and wholesalers shall "apportion uniformly" gasoline and special fuels (which, as defined in Art. 56, § 157A (2), includes diesel oils) to all retail service station dealers "on an equitable basis" and "shall not discriminate among the dealers in their allotments." In view of the history of the Act, it is clear that the Legislature by this provision intended to prevent the inequitable distribution of petroleum products, reflected by the Comptroller's study, which occurred during periods when a particular supplier had insufficient supplies to satisfy its dealers' requirements.  To prevent a supplier from favoring one dealer over another during a period when the supplier was experiencing a shortage, the Act requires that the available product be alloted to each dealer on the same basis.  In other words, when supplies are insufficient to meet dealer requirements, there must[***58] be a pro rata reduction to each dealer.

   [*442] In its fundamental purpose, Paragraph F of the Maryland Act is in harmony with the Emergency Petroleum Allocation Act, 15 U.S.C. 751 et seq. The federal act provides for the promulgation of regulations for the allocation of, inter alia, refined petroleum products.  15 U.S.C. 753. The federal act goes on to state that the regulations, to the "maximum extent practicable," shall provide for the "equitable distribution of . . . refined petroleum products . . . among all . . . sectors of the petroleum industry, including . . . non branded independent marketers, [and] branded independent marketers . . . ." 15 U.S.C. 753(b)(1)(F).  To achieve this [**1120] objective of equitable distribution, the federal act further states that regulations should provide, where practicable, for a pro rata reduction in allocation to each branded and unbranded independent marketer where there is insufficient product to supply each with the amounts supplied in a prior corresponding base period.  15 U.S.C. 753(c)(1)(A).  As originally enacted, the President's authority to promulgate regulations was to terminate on February 28, 1975.  This authority[***59] has been extended several times, and has been extended most recently to September 30, 1981, by Pub. L. No. 94-163, § 461 (1975).
 
   By its express terms, the federal Emergency Petroleum Allocation Act preempts only such state regulations of allocation of refined petroleum products which are in actual conflict with regulations promulgated pursuant to it.  Thus, 15 U.S.C. 755(b) provides that:
 
"The regulation under section 753 of this title and any order issued thereunder shall preempt any provision of any program for the allocation of crude oil, residual fuel oil, or any refined petroleum product established by any State or local government if such provision is in conflict with such regulation or any such order."
 
Therefore we need not determine whether the existence of a comprehensive system of federal regulation necessarily precludes state regulation, as Congress has specifically limited the type of state regulation which is preempted.  We [*443]need only determine whether Paragraph F of the Maryland statute conflicts with any regulation promulgated pursuant to the Emergency Petroleum Allocation Act.

   The federal regulations promulgated pursuant to the federal[***60] act establish a scheme of equitable petroleum allocation.  Each supplier must determine its "allocation fraction" which is "equal to its allocable supply . . . divided by its supply obligation . . . ." 10 C.F.R. § 211.10(b).  This fraction is then applied to each purchaser's "base period volume" to determine the purchaser's allocation.  In other words, each purchaser is allocated petroleum products based upon the seller's total supplies relative to the seller's total obligations.  Where the allocation fraction is less than one, that is, where a supplier's allocable supply is less than his supply obligation for a base period, the supplier must reduce on a pro rata basis the amounts sold to purchasers.  10 C.F.R. § 211.10(f).  This scheme is applicable to the allocation of motor gasoline, 10 C.F.R. § 211.107(b), as well as diesel fuel, 10 C.F.R. § 211.126(b), and as discussed above, is entirely consistent with Paragraph F of the state Act.

   The Maryland Act requires that gasoline and special fuels be apportioned "uniformly," on "an equitable basis" to all retail service station dealers during a period of shortage.

   The oil companies, in arguing that Paragraph F of the Maryland[***61] statute is in conflict with the federal regulatory scheme, point to several factors affecting allocations under the federal regulations which may allow allocation on other than a "uniform" basis which they contend is required by Paragraph F. See, e.g., 10 C.F.R. § 211.14(b), permitting a 5% reduction in monthly allocable supply to an area within a state to meet regional imbalances. We do not believe that the Legislature, in requiring that petroleum products be apportioned "uniformly," intended that the Comptroller could not take into account, as do the federal regulations, other factors affecting allocation and distribution of petroleum products which might result in varying allocations to certain dealers. Although petroleum products are to be apportioned "uniformly," allocation is also to be on an "equitable basis." By thus modifying "uniformly," it [*444] would appear that the Legislature contemplated that certain equitable factors might require variations in an otherwise uniform scheme of gasoline and special fuel allocation.

    Consequently, we do not find that Paragraph F of the Maryland statute inherently conflicts with any regulation pursuant to the Emergency Petroleum [***62]Allocation Act of 1973.  We find that Paragraph F is in [**1121] harmony with the Emergency Petroleum Allocation Act which expressly preserves the power of the states to regulate the allocation of refined petroleum products.  As the State concedes, the Comptroller may not order allocation of petroleum products in conflict with the federal regulations enacted pursuant to the Emergency Petroleum Allocation Act or promulgate regulations pursuant to Art. 56, § 157B (a) which would conflict with present or future federal regulations. Cf. Rice v. Board of Trade of City of Chicago, 331 U.S. 247, 67 S. Ct. 1160, 91 L. Ed. 1468 (1947). However, enforcement of the provisions in accordance with federal standards would be proper.

   (7) Conflict with the Robinson-Patman Act

   Before the trial in this case commenced, the circuit court granted a motion for partial summary judgment filed by Exxon, Shell and Gulf regarding Paragraph D of the Maryland Act which requires that suppliers extend "voluntary allowances" uniformly to all retail service station dealers supplied.  The trial court held that Paragraph D is in conflict with § 2 of the Clayton Act, as amended by the Robinson-Patman[***63] Act, 15 U.S.C. 13, and is therefore invalid under the Supremacy Clause, Art. VI of the United States Constitution.

   Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. 13(a), provides in part that "[i]t shall be unlawful for any person . . . to discriminate in price between different purchasers of commodities of like grade and quality . . . where the effect of such discrimination may be substantially to lessen competition . . . ." However, § 2(b) of the same Act, 15 U.S.C. 13(b), provides a seller with a defense to a charge of price [*445] discrimination "by showing that his lower price . . . to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor . . . ." The oil companies contend, and the court below held, that in requiring that voluntary allowances be extended to all retail service stations within the state, the state Act deprives sellers of a federal right to discriminate in price between purchasers where necessary to meet an equally low price of a competitor as provided by § 2(b) of the federal act.

   In determining whether a conflict exists between Paragraph D of Ch. 854 and § 2(b) of the Clayton[***64] Act, as amended by the Robinson-Patman Act, it is necessary both to determine the meaning of "voluntary allowances" as used in Paragraph D of the state statute and to ascertain the scope of the "meeting competition" defense in § 2(b) of the federal statute.

   Turning to the meaning of "voluntary allowances" in Paragraph D, where a term used in a statute relating to a particular trade or industry does not have a common usage, then the term is presumed to be used in the commercial sense.  As was said in Armco Steel v. State Tax Comm., 221 Md. 33, 41-42, 155 A. 2d 678 (1959):
 
"When terms in a statute are used relating to trade or commerce, absent legislative intent to the contrary, the terms are presumed to be used in their trade or commercial meaning.  2 Sutherland, Statutory Construction, § 4919 (3d ed. 1943).  . . . [I]t must be presumed that [the Legislature] possessed at least the common knowledge about that industry."
  
See also Perdue v. St. Dep't of Assess. & T., 264 Md. 228, 234-235, 286 A. 2d 165 (1972).

   The State asserts that a "'voluntary allowance' is oil industry jargon for a rebate of a portion of the otherwise uniform 'tank wagon (wholesale) [***65] price' paid by all dealers of a particular brand for their gasoline." (Appellants' brief, p. 40.) The Comptroller's report also defined voluntary allowances as discounts extended by suppliers to certain [*446] dealers to enable those dealers to meet competition.  The oil companies do not disagree with the State's definition of "voluntary allowances." n9 In fact, affidavits [**1122]filed by the oil companies in support of the motion for partial summary judgment, as well as stipulations of facts, support the State's position.  Thus, an affidavit filed by a Shell marketing manager states:

   "Under specified market conditions, Shell grants temporary price reductions, or 'competitive allowances,' to its branded retail dealers. Shell's purpose in granting competitive allowances is to provide competitive and equitable assistance in gasoline prices to Shell dealers who are injured by local competitive gasoline price reductions of competing retailers which are subsidized by their suppliers."
 
To similar effect are affidavits filed by Exxon and Gulf.

n9 The oil companies, however, do contend that the term "voluntary allowances" is unconstitutionally vague in that it may refer to other types of assistance extended to dealers such as rent relief in certain situations.  For the reasons to be discussed below, we do not find that "voluntary allowances" as used in Paragraph D encompasses such a broad spectrum of dealer assistance and is limited to certain price discounts.

[***66]

   This definition of "voluntary allowances" is supported by congressional reports dealing with the retail marketing of gasoline. The practice of granting temporary price reductions in the wholesale price to selected dealers to "meet competition" has long been in use and has been criticized in congressional reports as a means of controlling price competition in small, localized areas. In hearings before the Senate Select Committee on Small Business investigating a gasoline price war, one major oil company official described "voluntary allowances" as
 
"a method of extending price assistance to an individual dealer to assist him in meeting price competition with which he is faced, to aid him in maintaining volume, and to help him, as an independent businessman, stay in business and protect his investment.  At the same time, because [*447] of its application to dealers on an individual basis, the plan tends to help localize the price disturbance." S. Rep. No. 2810, 84th Cong., 2d Sess. 19 (1956).  (Emphasis supplied.)
 
 See also H. R. Rep. No. 1423, 84th Cong., 1st Sess. 12-17 (1955).  There, as here, the practice of granting voluntary allowances to dealers to[***67] enable those dealers to meet the price competition of other dealers was justified by the oil companies as being permissible price discrimination within the § 2(b) defense.  S. Rep. No. 2810, 84th Cong., 2d Sess. 20.

   Finally, in addition to the statements of the parties and the congressional reports, the legislative history of the Maryland statute confirms that the term "voluntary allowances" as used in Paragraph D refers to the pricing practices described by the oil companies.  The Comptroller's report refers to the practice of temporary, selective price reductions, and indicates that the amount of these reductions varied considerably.  The statement of an oil company executive at the hearings conducted by the Senate Economic Affairs Committee and the House Economic Matters Committee on the Act denies that price assistance is not offered on an equitable basis and takes the position that selective, localized price reductions are necessary and beneficial to dealers. Consequently, it appears that Paragraph D was intended to prevent the practice of localized price discounts, the Legislature believing that all retail service station dealers of the same brand should be treated equally. [***68] This is consistent with other provisions of the Act which are intended to eliminate discrimination against retail dealers by their suppliers.

   Therefore, in view of the principle of statutory construction that terms relating to a particular industry are presumed to be used in their commercial sense in the absence of any common meaning to the contrary, and in light of industry practices and legislative history, we construe "voluntary allowances" to mean temporary price reductions in the wholesale price to a retail dealer to enable the dealer to meet the lower price of a competing retail dealer.

   [*448] The oil companies do not argue that Paragraph D is in general conflict with the Robinson-Patman Act.  Rather their contention is based solely upon the availability of the § 2(b) defense where temporary price reductions are granted to a dealer to enable the dealer to meet the competition of another dealer. Such competition at the retail level would occur basically in two situations.  [**1123] Either a competing retail dealer would lower its price on its own or a competing retailer would lower its price after receiving a reduction in the wholesale price from its supplier. We[***69] must determine, then, whether the § 2(b) defense would be available if a voluntary allowance were granted to a retail dealer to meet either one of these competitive situations.

   It is settled that the § 2(b) defense is not available to a supplier where a discriminatory price cut is granted to a dealer to enable that dealer to respond to a competing dealer's price cut where the competing dealer does not receive a price cut from its supplier. In Federal Trade Comm'n v. Sun Oil Co., supra, 371 U.S. at 505, 83 S. Ct. at 358, Sun Oil Company granted a discriminatory price reduction to one of its retail dealers to enable that dealer to meet the lower price of a retail competitor. There was no showing that the lower price of the retail competitor was supported by an enabling price cut from its own supplier, and therefore the Court assumed that the retail competitor was unaided by its supplier. The Court held that the § 2(b) "good faith meeting competition" defense was not available to the supplier, as that defense applies only where the seller's reduction in price is made to meet "the lower price of his own competitor" and not the lower price of his customer's competitor. 371 U.S. [***70]at 529.

   However, the Supreme Court in Federal Trade Comm'n v. Sun Oil Co., supra, 371 U.S. at 512 n. 7, 83 S. Ct. at 363 n. 7, specifically reserved the question of whether the § 2(b) defense is available if the seller's discriminatory price cut to its dealer is in response to a price cut made by a competitor of the seller to the competitor's dealer. There is a conflict in the lower federal courts on this question.  In Enterprise Industries v. Texas Company, 136 F. Supp. 420, 421 (D. [*449] Conn. 1955), reversed on other grounds, 240 F. 2d 457 (2d Cir.), cert. denied, 353 U.S. 965, 77 S. Ct. 1049, 1 L.Ed.2d 914 (1957), the court held that the § 2(b) defense is available to a supplier only where the discriminatory price is offered to a buyer in response to an equally low price offered to that same buyer by a competitor of the supplier. In other words, the § 2(b) defense is available only where the discriminatory price reduction is offered to retain a customer in the face of a "price raid" on that customer by a competitor of the seller. In Bargain Car Wash, Inc. v. Standard Oil Co. (Indiana), 466 F. 2d 1163, 1175 (7th Cir. 1972), on the other hand, [***71] the court held that the defense is available if the supplier's lower price is offered to its dealer to meet the equally low price offered by a competitor of the supplier to its dealer. The court relied on the Federal Trade Commission's most recent interpretation of § 2(b) as announced in the Commission's Report on Anti-Competitive Practices in the Marketing of Gasoline, 3Trade Reg. Rep., para. 10,373 at 18,245 (1967), where the Commission reversed its position on § 2(b) and abandoned its support of the Enterprise holding on which it had relied in Federal Trade Comm'n v. Sun Oil Co., supra. See Note, Gasoline Marketing and the Robinson-Patman Act, 82 Yale L. J. 1706, 1713 n. 44 (1973).

   Although the question is not without doubt, based upon the limited nature of the § 2(b) defense and the purposes of the Robinson-Patman Act as discussed in Federal Trade Comm'n v. Sun Oil Co., supra, and Standard Oil Co. v. Trade Comm'n , 340 U.S. 231, 71 S. Ct. 240, 95 L. Ed. 239 (1951), we agree with the interpretation of § 2(b) set forth in Enterprise Industries v. Texas Company, supra. As the Court observed in Federal Trade Comm'n v. Sun Oil Co., supra, the purpose[***72] of the Robinson-Patman Act was "to obviate price discrimination practices threatening independent merchants and businessmen . . . ." 371 U.S. at 520, 83 S. Ct. at 367. To accomplish this goal, the Robinson-Patman Act amended the Clayton Act to limit the § 2(b) defense to only those situations where the discriminatory price was offered "to meet an equally low price of a competitor." Prior to the Robinson-Patman Act, a [*450] defense was available where the discriminatory price concession "was made in good faith to meet competition." The House Committee in its report on the Act, said of this revision [**1124] (H. R. Rep. No. 2287, 74 Cong., 2d Sess. 16 (1936)):

   "This proviso represents a contraction of an exemption now contained in section 2 of the Clayton Act which permits discriminations without limit where made in good faith to meet competition.  It should be noted that while the seller is permitted to meet local competition, it does not permit him to cut local prices until his competition has first offered lower prices, and then he can go no further than to meet those prices.  If he goes further, he must do so likewise with all his other customers, or make himself[***73] liable to all of the penalties of the act, including treble damages.  In other words, the proviso permits the seller to meet the price actually previously offered by a local competitor. It permits him to go no further." (Emphasis supplied.)
  
This, in combination with the qualified wording of the § 2(b) defense when compared with the more expansive prohibition against price discrimination contained in § 2(a), led the Supreme Court to conclude that the defense was available only where the grantor of the discriminatory price was responding to price competition at his own level and not that at the level of the buyer who receives the discriminatory price.  371 U.S. at 514-515, 83 S. Ct. at 364-365.

   Although the Court in Sun Oil Company did not decide if the § 2(b) defense is available only where two sellers are competing for the same customer, it did observe that this is the "more normal circumstance" where the § 2(b) defense is applicable.  371 U.S. at 526. See, e.g., Krieger v. Texaco, Inc., 373 F. Supp. 108 (W.D. N.Y. 1973). The purpose of the § 2(b) defense was discussed in these terms in Standard Oil Co. v. Trade Comm'n, supra, 340 U.S. at 249-250, where the [***74] Court stated that the § 2(b) defense is available to a seller to prevent a "price raid" by permitting a seller "to retain a customer by realistically [*451] meeting in good faith the price offered to that customer, without necessarily changing the seller's price to its other customers." To expand the § 2(b) defense beyond this situation, allowing a supplier selectively to reduce its price to a dealer where that dealer faces competitive pressures from another retail dealer aided by lawful reductions from its supplier, would frustrate the overall purpose of antitrust laws to promote competition.  Selective price discounts allow sellers to suppress competition, especially from independent, non-branded dealers, in a relatively small area without offering lower prices on a more generalized basis.  The use of voluntary allowances to enable petroleum suppliers to inhibit rather than foster competition has been recognized in studies on the retail marketing industry.  H. R. Rep. No. 1423, 84th Cong., 1st Sess. 12017; S. Rep. No. 2810, 84th Cong., 2d Sess. 19023.  As the Supreme Court said in Federal Trade Comm'n v. Sun Oil Co., supra, 371 U.S. at 523, 83 S. Ct. at 369, "[s]o long[***75] as the wholesaler can meet challenges to his pricing structure by wholly local and individualized responses, it has no incentive to alter its overall pricing policy." n10 Commentators have also concluded that to expand the § 2(b) defense to permit petroleum suppliers to extend localized, discriminatory price cuts to a retail dealer to enable that dealer to meet the lower price of a competing retail dealer, which is subsidized by a price cut by the supplier's competitor, would be inconsistent with the purpose and legislative history of the Robinson-Patman Act.  Note, Gasoline Marketing and the Robinson-Patman Act, supra; The Supreme Court, 1962 Term, 77 Harv. L. Rev. 81, 173-176 (1963).

n10 As the Court suggested in Federal Trade Comm'n v. Sun Oil Co., supra, 371 U.S. at 526, 83 S. Ct. at 370, sellers may, as an alternative to selective, discriminatory price cuts, reduce wholesale prices over a wider competitive area "so as to preclude the probable incidence of the substantial anticompetitive effects upon which [a] violation of § 2(a) is . . . grounded."

[***76]

   Consequently, we believe that the § 2(b) defense is available only where the discriminatory price reduction is to meet the equally low price offered to the same buyer by a [*452] competing seller. The oil companies, by relying on Cadigan v. Texaco, [**1125] Inc., 492 F. 2d 383 (9th Cir. 1974), seem to suggest that even in this situation, where a discriminatory price reduction is offered to a dealer to meet an equally low price offered to that same dealer by a competing supplier, Paragraph D of the Maryland Act would require that the discount be offered to all retail service station dealers supplied.  However, we have construed "voluntary allowances" in the state Act to mean only those price reductions offered to retail dealers to enable the dealer to meet the lower price of a competing retail dealer.  Thus, there is no conflict between Paragraph D and § 2(b) of the Clayton Act as amended by the Robinson-Patman Act. Paragraph D of the state Act encompasses only the situation where temporary price reductions are given to a dealer to meet the lower price of a competing dealer, and, in our view, § 2(b) of the federal Act does not extend to that situation. [***77]

   Moreover, even if the Legislature were to extend the concept of "voluntary allowances" to include the situation where a price reduction is offered to a retail dealer to meet the equally low price offered to that same dealer by a competing supplier, there has been no suggestion that such a situation occurs with any frequency in the oil industry.  Consequently, in most situations where temporary price reductions are extended, there would be no conflict between the Maryland statute and the federal statute.  If, however, a conflict did arise, the Maryland statute would be preempted only to the extent necessary to avoid the conflict and not in its entirety as the oil companies suggest.  DeCanas v. Bica, 424 U.S. 351, 96 S. Ct. 933, 937 n. 5, 47 L.Ed.2d 43 (1976); Kewanee Oil Company v. Bicron Corp., 416 U.S. 470, 491-492, 94 S. Ct. 1879, 1891, 40 L.Ed.2d 315 (1974); State v. Texaco, Inc., 14 Wis. 2d 625, 111 N.W.2d 918, 923 (1961) (concurring opinion).

   As previously indicated, the contention of the oil companies on appeal that Paragraph D is in conflict with the Robinson-Patman Act is premised solely upon the availability of the § 2(b) defense where voluntary allowances[***78] are granted.  Nevertheless, the trial court in its opinion had [*453] also found that Paragraph D would obstruct the accomplishment and execution of the purposes of the Robinson-Patman Act.  Where a state law "'stands as an obstacle to the accomplishment and execution of the full purposes and objective of Congress,'" it is void under the Supremacy Clause, Kewanee Oil Company v. Bicron Corp., supra, 416 U.S. at 479, 94 S. Ct. at 1885, quoting Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399, 85 L. Ed. 581 (1941). However, the objectives of both laws must be examined, Kewanee Oil Company v. Bicron Corp., supra, 416 U.S. at 480, 94 S. Ct. at 1885, and, where possible, the operation of both should be reconciled so as to avoid preemption, Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127, 94 S. Ct. 383, 389-390, 38 L.Ed.2d 348 (1973). But it is not necessary to attempt to reconcile Paragraph D and the Robinson-Patman Act as the purpose and objectives of both are the same.  The purpose of the Robinson-Patman Act was "'the preservation of equality of opportunity'" by assuring "that businessmen at the same functional level would start on equal competitive[***79] footing so far as price is concerned." Federal Trade Comm'n v. Sun Oil Co., supra, 371 U.S. at 520, 83 S. Ct. at 367. This is precisely the purpose of Paragraph D: to insure that all retail service station dealers are afforded equal treatment and to prevent discrimination among dealers of the same supplier. Therefore, Paragraph D is not an obstacle to the accomplishment of the same objective.

    Consequently, we hold that Paragraph D of the Maryland Act is not invalid under the Supremacy Clause of the United States Constitution.

   (8) Void for Vagueness

   The oil companies contend that several terms in the Act, which imposes criminal sanctions for violations, are so vague as to constitute a denial of due process of law in violation of Art. 23 of the Maryland Declaration of Rights and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  The terms which [**1126] are allegedly vague are: "producer or refiner"; "voluntary [*454] allowances" and "uniformly" as used in Paragraph D; "equipment rentals" and "uniformly" as used in Paragraph E; and "periods of shortage" and "uniformly . . . on an equitable basis" as used in Paragraph F.

   The standard[***80] for determining whether a criminal statute is void for vagueness was set forth in United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L. Ed. 989 (1954):

   "The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.  The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed."
 
Connally v. General Const. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926); Bowie Inn v. City of Bowie, supra, 274 Md. at 239-240; Giant of Md. v. State's Attorney, 267 Md. 501, 514-515, 298 A. 2d 427, appeal dismissed, 412 U.S. 915, 93 S. Ct. 2733, 37 L.Ed.2d 141 (1973). Where a statute regulates commercial activity, the standard of ordinary intelligence is one of "ordinary commercial knowledge." In other words, the statute must be sufficiently definite so as to inform one possessing "ordinary commercial knowledge" of what conduct is prohibited.  McGowan v. State of Maryland, supra, 366 U.S. at 428, 81 S. Ct. at 1106[***81] (holding that an exception to the Maryland Sunday closing laws permitting the retail sale of "'merchandise essential to, or customarily sold at, or incidental to, the operation of' bathing beaches, amusement parks et cetera" was not unconstitutionally vague); Potomac Sand & Gravel v. Governor, supra, 266 Md. at 379 (holding that a statute prohibiting the dredging of sand or gravel in "marshlands" was not unconstitutionally vague).  Where necessary, the constitutional requirement of definiteness may be satisfied by a reasonable construction of the statute by the courts.  United States v. Harriss, supra, 347 U.S. at 618, 74 S. Ct. at [*455] 812; Potomac Sand & Gravel v. Governor, supra, 266 Md. at 379.

   Most of the allegedly vague provisions of the Act, such as "voluntary allowances uniformly," as used in Paragraph D, and "periods of shortage," "uniformly" and "on an equitable basis" as used in Paragraph F, have already been discussed.  These provisions are, in our view, sufficiently definite so as not to constitute a denial of due process of law.  Likewise, we find, as did the trial court, that the term "producer or refiner" is not unconstitutionally vague. [***82] A producer, as used in the Act, is a person, firm or corporation engaged in the production of crude oil, i.e., extracting crude oil from the earth.  A refiner is one engaged in refining crude oil.

    Nor do we find that Paragraph E, which requires that all equipment rentals be applied uniformly to all retail service station dealers supplied, is unconstitutionally vague.  Affidavits filed by the oil companies indicated that certain equipment supplied to retail service station dealers is customarily included in the lease of the station. However, certain other items such as "identification signs and credit card imprinters" are not included in the lease but are rented separately to each dealer. We think that the term "equipment rentals" refers to that equipment which, according to industry practice, is supplied to the dealer separate from the lease of the service station. And consistent with the policy of the Maryland Act that all retail service station dealers be treated equally by their supplier, Paragraph E mandates that all dealers be charged the same rental for like equipment.

   (9) Severability

   The oil companies' final argument is that the various provisions of Ch. 854 [***83]are not severable.  Recognizing that their substantive due process, commerce clause, unconstitutional taking and equal protection arguments are directed solely at the Act's divestiture provisions (Paragraphs B and C), whereas Paragraphs D and F are challenged only on Supremacy Clause grounds, [**1127]the oil companies contend that if any of these challenges is accepted [*456] by this Court, then the entire Act should be held invalid. (Appellees' brief, p. 66.) They maintain that the Legislature intended the Act to be "an integrated whole." (Ibid.) With respect to the issue of severability, see Maryland Code (1957, 1976 Repl. Vol.), Art. 1, § 23; Blackwell v. State, 278 Md. 466, 473-474, 365 A. 2d 545 (1976); Shell Oil Co. v. Supervisor, 276 Md. 36, 48-49, 343 A. 2d 521 (1975), and cases therein cited.  However, since we have rejected all of the challenges to the Act's provisions made by the oil companies in this Court, the issue of severability is not now presented for decision.

   Judgment of the Circuit Court for Anne Arundel County reversed, and case remanded to that court for entry of a judgment in accordance with this opinion.

   Appellees to pay costs[***84] . 

NICHOLAS GOLDSBOROUGH v. DEPARTMENT OF TRANSPORTATION et al. 
No. 105, September Term, 1976
 
Court of Appeals of Maryland
 
279 Md. 36; 367 A.2d 522; 1977 Md. LEXIS 880

 January  4, 1977, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment affirmed with costs.

CORE TERMS:  works of internal improvement, internal improvement, publicly owned, work of internal improvement, constitutional provision, public road, involvement, railroad, canal, transit system, wisdom, self-supporting, regional, privately owned, constructed, stockholder, predecessors, disastrous, fiscal, proposed project, financing, doubtful, railway, framers, rail

COUNSEL: Thomas M. Downs, with whom were C. Fred Delavan and Harry C. Blumenthal on the brief, for appellant.

   J. Michael McWilliams, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Kaye T. Brooks, Assistant Attorney General, on the brief for Department of Transportation, Joseph S. Kaufman, General Counsel, on the brief for Mass Transit Administration, appellees.

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

OPINIONBY: MURPHY

OPINION: [*37] [**523] We granted certiorari in this case to decide whether the proposed publicly owned Baltimore Area Rapid Transit System constitutes an "internal improvement" within the meaning of the Maryland Constitution, Art. III, § 34 which prohibits the State's participation[***3] "in the construction of works of internal improvement which shall involve the faith or credit of the State . . . ." n1

n1 Prior to its recent amendment, ratified by the voters on November 2, 1976, the relevant parts of § 34 read as follows:
 
". . . nor shall the General Assembly have the power in any mode to involve the State in the construction of works of internal improvement, nor in granting any aid thereto which shall involve the faith or credit of the State; nor make any appropriation therefor . . . ."

   [*38] Appellant Goldsborough filed a taxpayer's suit against the State Department of Transportation, the Mass Transit Administration, the Secretary of Transportation, and the Mass Transit Administrator.  He alleged that the Rapid Transit System, if constructed, will constitute an "internal improvement" constitutionally prohibited by § 34 and that the action of the General Assembly in authorizing and appropriating expenditures to assist in the financing of the project n2 was therefore illegal[***4] and unconstitutional.  The Circuit Court for Anne Arundel County (Childs, J.), relying primarily on Bonsal v. Yellott, 100 Md. 481, 60 A. 593 (1905), held that the proposed project was not a work of internal improvement within the contemplation of § 34.  Because of the importance of the issue, certiorari was granted prior to the appeal being heard in the Court of Special Appeals.

n2 See Chapter 237 of the Acts of 1976.

   [**524] The history underlying and giving rise to the inclusion of § 34 in the Maryland Constitution is well documented.  The constitutional provision prohibiting the State's involvement in works of internal improvement which implicate its faith or credit was intended to prevent any repetition of the State's fiscal crises in the second quarter of the 19th century.  The State had invested millions of dollars in privately owned and operated railroad and canal companies which had been organized primarily for profit to their stockholders; the State had transferred long-term State bonds[***5] to the companies in exchange for subscriptions to their securities.  The companies sold the bonds, thereby pledging the State's credit, in order to raise capital.  It was their responsibility to pay the interest on the bonds and ultimately to redeem the principal.  The projects failed to generate sufficient income to do so, however, and the State was fiscally unable to meet the interest payments on the bonds. Bankruptcy threatened, and it was only by imposing additional taxes that the State survived the financial crisis.  The State's purpose to realize a profitable investment while at the same time assisting in the development of the State thus ended in fiscal disaster.  See Secretary of [*39] Transportation v. Mancuso, 278 Md. 81, 359 A. 2d 79 (1976); Johns Hopkins University v. Williams, 199 Md. 382, 86 A. 2d 892 (1952); Bonsal v. Yellott, supra; Report of the Constitutional Convention Commission, Maryland, 1967, at 214, et seq.
 
   The seminal case construing the constitutional provision in question was Bonsal v. Yellott, supra. Our predecessors there held that State involvement in the construction of a public road did not violate the provisions of § 34. [***6]While recognizing that a public road was an internal improvement, the Court said that the term "works of internal improvement," as used in § 34, was not intended to encompass such a public project.  It held that in view of the history of the constitutional provision, "the people had in mind the character of 'internal improvements,' which had been so disastrous to the State," 100 Md. at 499, 60 A. at 594; that the works of internal improvement contemplated by § 34 "were such as the State had been connected with or interested in as 'stockholder," or 'creditor' -- such as had driven it to the very verge of bankruptcy and repudiation -- and not such as every State government must have, either in its own name or in the names of its 'political agencies, created for the better government of the affairs of the State,' . . ." 100 Md. at 505, 60 A. at 596.

   For reasons identical to those set forth in Bonsal, we held in Lerch v. Maryland Port Authority, 240 Md. 438, 214 A. 2d 761 (1965), that a publicly owned international trade center was not a prohibited work of internal improvement under § 34.  The same result was reached in connection with a public sewerage or drainage system, [***7] Welch v. Coglan, 126 Md. 1, 94 A. 384 (1915).

   Appellant argues that unlike any of these facilities, the Rapid Transit System is the very type of internal improvement contemplated by the framers of § 34.  He says that the system is a railroad or railway and that it is fated for the same kind of financial disaster as befell the rail and canal companies of the 19th century, with the same disastrous results for the State.  Describing the proposed system as "a project of doubtful wisdom," one which can [*40] never be self-supporting, he urges that we declare the State's involvement with it violative of § 34.

   Assuming without deciding that the Rapid Transit System is a railroad or railway, it is plain to us, as it was to our predecessors in Bonsal, that the question is not whether such a publicly owned project can be considered as an internal improvement; rather it is whether such a project was intended by the framers of § 34 and the people who adopted it to constitute a constitutionally prohibited work of internal improvement. Bonsal and its progeny make [**525] clear that it was not.  The Mass Transit Administration, the public body responsible for the planning, [***8] construction, and management of the project, bears no resemblance to the privately owned rail and canal companies of the last century.  Its purpose is purely public; n3 their purpose was the enhancement of private profit.  In other words, the Rapid Transit System will be a publicly owned facility built in response to a legislative determination of a public need for mass transportation and not for some envisioned profit or investment purpose.  Under the legislative mandate, the system will be constructed and maintained as a primary function of government; in reality, it is a facility which, like the public road in Bonsal, "public authorities alone construct." 100 Md. at 499, 60 A. at 594.

 n3 The legislative policy of the act establishing the Metropolitan Transit District and the Mass Transit Administration is stated as follows:

   "The development of improved and expanded transit facilities, consisting of rapid transit and bus service operating as a unified and coordinated regional transit system, is essential for the satisfactory movement of people and goods, the alleviation of present and future traffic congestion, the economic welfare and vitality and the development of the metropolitan area of Baltimore . . . . Such a regional transit system cannot be achieved by the unilateral action of any one of Baltimore City, Baltimore County and Anne Arundel County but requires action by the State of Maryland, through a State authority which is politically responsive to local needs and which will assure that the development of the regional transit system fosters general development plans for the State, the region and the local development plans of the participating political subdivisions." Maryland Code (1957, 1972 Repl. Vol.) Art. 64B, § 1.

[***9]

   That the Rapid Transit System may be "a project of doubtful wisdom" because of its alleged inability to become [*41] self-supporting, as appellant suggests, is not the concern of the courts.  The wisdom or expediency of a valid law adopted in the exercise of the State's police power is not subject to judicial review.  Steuart Petroleum Co. v. Board of County Commissioners, 276 Md. 435, 347 A. 2d 854 (1975). "[T]he validity of the means chosen to carry out a public purpose does not depend upon proof that the means will be successful." Lerch v. Maryland Port Authority, 240 Md. at 449, 214 A. 2d at 767. We judge only the project's constitutionality and hold that it does not violate the prohibition of § 34 against State participation in works of internal improvement which involve the faith or credit of the State.  In so concluding we have carefully considered, but find inapposite, Attorney General v. Pingree, 120 Mich. 550, 79 N. W. 814 (1899), upon which appellant places his principal reliance.

   Judgment affirmed with costs. 

BLUMENTHAL et ux. v. CLERK OF THE CIRCUIT COURT FOR ANNEARUNDEL COUNTY et al. 
No. 15, September Term, 1976
 
Court of Appeals of Maryland
 
278 Md. 398; 365 A.2d 279; 1976 Md. LEXIS 640

 October  22, 1976, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment affirmed; appellants to pay costs.

CORE TERMS:  recordation, ordinance, tax rate, mandatory, enumerated, legislative history, effective date, securing, session, enabling legislation, conveying title, joint committee, fractional part, effective, recommendations, clerk, local ordinance, ambiguity, consideration paid, principal amount, debt secured, subtitle, resort, governing bodies, statutory scheme, recent decision, dictum, fixing, elect, motion to dismiss

COUNSEL: John J. Ghingher, Jr., and Ronald J. Kwoka, with whom was Jerome T. May on the brief, for appellants.

   Gerald I. Langbaum, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief; Frederick C. Sussman, Assistant County Solicitor for Anne Arundel County, with whom was Michael Roblyer, County Solicitor, on the brief; H. Christopher Malone, Assistant County Attorney for Montgomery County, with whom were Richard S. McKernon, County Attorney, and Robert G. Tobin, Jr., Deputy County Attorney, on the brief; Peter Max Zimmerman, Assistant County Solicitor for Baltimore County, with whom were J. Carroll Holzer, County Solicitor, and Harry S. Shapiro, Chief Assistant County Solicitor , on the brief; and submitted on brief by E. Thomas Merryweather, County Solicitor for Dorchester County, Joseph Ernest Bell, II, County Attorney for St. Mary's County, Thomas C. Hayden, Jr., County Attorney for Charles County, Benjamin L. Brown, City Solicitor, Ambrose T. Hartman, Deputy City Solicitor, and Richard K. Jacobsen, Chief Solicitor, for Mayor and City Council of Baltimore, [***5] appellees.

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

 OPINIONBY: LEVINE

OPINION: [*400] [**281] The primary question presented by this appeal is whether the General Assembly has granted statutory authority to certain counties and the City of Baltimore to fix by local resolution or ordinance the rate of tax to be charged in their respective jurisdictions for the recordation of instruments conveying title and securing debts.  In the mandamus and declaratory judgment action from which this appeal arises, the Circuit Court for Anne Arundel County (Evans, J.) held that such authority had been granted.  We issued a writ of certiorari prior to consideration of the case by the Court of Special Appeals and, for reasons that follow, we affirm.

   At the heart of this case is the effect of Chapter 452, Laws of 1968 upon Maryland Code (1957, 1975 Repl. Vol.) Art. 81, § 277, dealing with the recordation tax, and the impact upon those statutory provisions of a recent decision of this Court. n1 [*401] Chapter 452, in relevant part, added to § 277 a new subsection q which provided:

   "Every county and Baltimore[***6] City may, by resolution or ordinance duly enacted by its governing body, fix the rate of tax imposed by this subtitle. In the absence of such resolution or ordinance, the rates specified in this subtitle shall continue to apply."

n1 The following subsections of Code (1957, 1975 Repl. Vol.) Art. 81, § 277, as they provided following the 1968 session of the General Assembly, are relevant to this case:

   "(b) Instruments conveying title or securing debts.  -- In the case of instruments conveying title to property, the tax shall be at the rate of 55 cents for each $500.00 or fractional part thereof of the actual consideration paid or to be paid; in the case of instruments securing a debt, the tax shall be at the rate of 55 cents for each $500.00 of the principal amount of the debt secured.

   * * * *

   "(m) Allegany, Anne Arundel, Baltimore, Dorchester, Garrett, Montgomery, St. Mary's and Wicomico counties.  -- The rate of tax applicable to instruments recorded with the clerk of the circuit court for Baltimore, Montgomery, St. Mary's, Wicomico, Allegany, Garrett, Dorchester, and Anne Arundel counties shall be as follows:

   "In the case of instruments conveying title to property, the tax shall be at the rate of $1.10 for each $500 or fractional part thereof of the actual consideration paid or to be paid; in the case of instruments securing a debt, the tax shall be at the rate of $1.10 for each $500 of the principal amount of the debt secured.

   "(n) Baltimore City and Calvert, Charles and Worcester counties.  -- The rate of tax applicable to instruments recorded with the clerk of the Superior Court of Baltimore City and with the clerk of the circuit court for Charles, Calvert and Worcester counties shall be as follows:

   "In the case of instruments conveying title to property, the tax shall be at the rate of $1.65 for each $500 or fractional part thereof of the actual consideration paid or to be paid; in the case of instruments securing a debt, the tax shall be at the rate of $1.65 for each $500 of the principal amount of the debt secured."

   * * *

[***7]

   Prior to 1957, § 277 (b), which provided that the recordation tax rate generally "shall be at the rate of 55 cents for each $500.00 or fractional part thereof," applied to the 23 counties and the City of Baltimore.  Subsection m was initially enacted by Chapter 778 of the Laws of 1957 so as to provide that the rate in Montgomery County "shall be at the rate of $1.10 for each $500 or fractional part thereof." By the close of the 1968 legislative session, seven other counties had been added to (m) by a series of amendments.  Subsection n, added in 1961, applied to the City of Baltimore and three counties at the conclusion of the 1968 session. The City of Baltimore and six of the eleven counties named in (m) and (n) are among the appellees here.

   [**282] Pursuant to the enactment of Chapter 452 in 1968, each of [*402]the political subdivisions appearing here as an appellee, the City of Baltimore and the counties of Anne Arundel, Baltimore, Charles, Dorchester, Montgomery and St. Mary's, enacted local measures establishing the rate of the recordation tax in their respective jurisdictions.  The rates thus established ranged from $1.65 to $3.50, thereby exceeding in each[***8] instance the amounts fixed by either (m) or (n) of § 277 for those six counties and the City of Baltimore.

   A challenge to the recording tax rate set by Anne Arundel County precipitated the litigation which culminates in this appeal.  When the Clerk of the Circuit Court for Anne Arundel County refused to accept a deed offered for recordation by appellants, who were the grantors therein, because they had tendered a recording tax computed at the $1.10 rate specified in § 277 (m) rather than the $3.50 rate enacted by the county council, appellants filed a suit in the circuit court which was ultimately amended to include as defendants the Comptroller, the City of Baltimore and the Clerk of the Superior Court of Baltimore City, as well as Baltimore, Charles, Dorchester, Montgomery and St. Mary's Counties and the clerks of their respective circuit courts.  After the defendants moved for summary judgment, Judge Evans filed a thoroughly considered opinion and an order granting the motion, in which he ruled that § 277 (q) was applicable to the six counties and Baltimore City, and that the local enactments in each of those political subdivisions "setting the rate for the recordation tax[***9] in excess of that provided for in Article 81 Section 277 (m) and (n) are valid and have been valid since their enactment." The appeal followed.

   (1)

   Appellants advance several grounds for their contention that § 277 (q) does not authorize the political subdivisions enumerated in § 277 (m) and (n) to increase the recordation tax rate by local ordinance or resolution.  We shall address these arguments, not all of which need be treated separately, in the course of dealing with the issues as we perceive them in this appeal.

   [*403] Since all the subsections of § 277, constituting with § 278 the subtitle "Recordation Tax." represent a general statutory scheme or system, they must be read and considered together to ascertain the true intention of the Legislature.  Thomas v. State, 277 Md. 314, 317, 353 A. 2d 256 (1976); County Council v. Supervisor, 274 Md. 116, 120, 332 A. 2d 897 (1975); Parker v. Junior Press Printing, 266 Md. 721, 725, 296 A. 2d 377 (1972). It is this rule, which we are bound to apply, that contributes to the dilemma in this case.

   Confronted by the apparent contradiction between subsections m and n, on the one hand, each of which purports to mandate[***10] fixed rates for the political subdivisions enumerated therein, and (q), on the other, permitting "[e]very county and Baltimore City" to fix the tax rate, the circuit court concluded, correctly in our view, that an ambiguity existed requiring for its resolution a resort to the available legislative history of Chapter 452. Appellants do not attack this conclusion, but challenge instead both the rules of statutory construction and the particular legislative history relied upon in the court below.  That resort may be had to the legislative history of a statute when an ambiguity exists is a cardinal rule of construction.  Mackie v. Town of Elkton, 265 Md. 410, 415, 290 A. 2d 500 (1972); Pressman v. Barnes, 209 Md. 544, 558-59, 121 A. 2d 816 (1956); see Crim. Inj. Comp. Bd. v. Gould, 273 Md. 486, 495, 331 A. 2d 55 (1975).

   As the record in this case reveals, House Joint Resolution 24 of the 1967 session of the General Assembly provided for creation of a commission to conduct studies and prepare corrective legislation for various state and local taxation and fiscal [**283] problems.  This action led to formation of the Joint Legislative-Executive Committee to Study Taxation[***11] and Fiscal Problems which submitted its report to the General Assembly on January 1, 1968. n2 Noting that the federal recordation tax, which theretofore had been imposed at the rate of 55 cents per $500, was to be discontinued as of January 1, 1968, as part of an overall federal program of excise tax [*404] reduction, the joint committee recommended "that the counties and Baltimore City be authorized to impose a recordation tax, upon 'instruments of writing' presently taxed in Maryland, at such rate as each shall elect." (emphasis added).  A footnote to one of the exhibits attached to the report, summarizing the fiscal effects of the various recommendations, stated:
 
"Although local governments would be authorized to elect any level of increase, this estimate assumes a 55 cents for $500 increase for all -- the level of the Federal tax being removed." (emphasis added).
 
House Bill 410 of the 1968 session, implementing the committee recommendations, was introduced by the house members of the joint committee, and Senate Bill 209, ultimately enacted as Chapter 452, was introduced by the senate members of the joint committee. A comparison of the various[***12] recommendations of the joint committee with Chapter 452, which dealt with a number of tax matters in addition to the recordation tax, erases any doubt that the enactment is the very embodiment of those recommendations.

 n2 The report of the Joint Legislative-Executive Committee was entitled "Next Steps in Tax Reform in Maryland."

   While conceding that the report and recommendations accurately reflect the intention of the joint committee that every county and Baltimore City be authorized to impose a recordation tax at such rate as each should elect, appellants maintain that this was nevertheless not the intention of the General Assembly itself.  Unquestionably, the report of the joint committee may be considered in ascertaining the legislative intent:

   "The history of the legislation, committee reports, other statutes in pari materia, and all related provisions of the same act must be considered in the construction of revenue laws." 3 Sutherland, Statutory Construction, § 66.03 (4th ed. Sands 1974) (emphasis[***13] added, footnotes omitted).
 
In short, as we have said, "the courts are not shut off from [*405] any discussion or sources of information available to the Legislature in order to ascertain the legislative intent." Public Service Comm. v. Sun Cab Co., 160 Md. 476, 481, [West v. Sun Cab Co.] 154 A. 100 (1931). Accord, Allers v. Tittsworth, 269 Md. 677, 683, 309 A. 2d 476 (1973) (revision commission reports considered by court).

   Appellants urge, however, that there is a more accurate means of ascertaining the intention of the General Assembly.  They point to the plethora of bills introduced and enacted at the 1968 session -- no less than eight in number -- effecting changes in § 277. n3 They argue that the unanimity displayed in regard to the eight bills by the committee in each house to which they were referred, and by the General Assembly itself, reflects an intention that (q) should not be operative with respect to the political subdivisions enumerated in (m) and (n). They reason that had the Legislature intended by its enactment of (q) to permit literally "every" county in the state and Baltimore City to fix its own rate, the six bills simultaneously amending[***14] (m), (n), (o) and (p), which set specific rates for many of the state's political subdivisions, would have been unnecessary, that is, mere surplusage.

n3 Apart from the enactment of subsections q and r, six amendments were made to (m), (n), (o) and (p).

   The argument advanced by appellants overlooks the very nature of subsection q.  [**284] It is, in effect, enabling legislation, which merely permits the governing body of "[e]very county and Baltimore City" to fix the recordation tax rate. Neither the committees of each house nor the General Assembly itself, while considering the eight bills, could have prophesied what might subsequently occur in some, let alone all, of those political subdivisions.  The Legislature clearly recognized that the governing bodies of the political subdivisions enumerated in (m) and (n) might delay local implementation of (q) or, indeed, might not opt at all for different rates under authority of the enabling legislation reflected in (q).  The purpose of the amendments to (m) [***15] and (n), therefore, was to ensure that absent a local resolution or ordinance fixing the tax rates in any of the political [*406] subdivisions covered by (m) and (n), provision would have been made by the General Assembly for specific rates to be charged in those subdivisions.  That the Legislature was cognizant of these various possibilities while enacting Chapter 452 is evident from the second sentence of (q):
 
". . . In the absence of such resolution or ordinance, the rates specified in this subtitle shall continue to apply."
 
An additional reason for the precaution taken by the General Assembly could have been its recognition that Chapter 452 might ultimately fail of passage at the 1968 session.

   In sum, then, the General Assembly clearly intended that subsection q should apply to Baltimore City and to the counties enumerated in (m) and (n). n4

n4 As further evidence of the legislative intention that (q) should apply to the political subdivisions enumerated in (m) and (n), appellees point to the enactment of Chapter 129, Laws of 1976, which they also say, by motion to dismiss, renders this appeal moot.  Chapter 129 and Chapter 142, a companion measure, were enacted as emergency legislation in obvious response to our recent decision in Prince George's Co. v. White, 275 Md. 314, 340 A. 2d 236 (1975). In a word, they appear designed to establish once and for all that (q) applies literally to the City of Baltimore and the 23 counties and to ratify and confirm retroactively the recordation rate fixed by any local resolution or ordinance of Baltimore City or the 23 counties becoming effective on or after July 1, 1968, notwithstanding a different rate specified for such political subdivision in any subsection of § 277.  Because we have found, for the reasons given above, what the legislative intention was respecting Chapter 452, we need not rely on Chapters 129 and 142 for that purpose.

[***16]

   Stripped of its rhetoric, the thrust of appellants' argument is that our recent decision in Prince George's Co. v. White, 275 Md. 314, 340 A. 2d 236 (1975), fully supports their contention that (q) does not apply to Baltimore City and the counties enumerated in (m) and (n).  That case is distinguishable. There, we were confronted by the interaction between (q) and subsection r, which was enacted by Chapter 301 of the Laws of 1968.  Chapter 301, the title of which states that (r) is "to follow immediately after Section 277 (q)," provides:

   "Notwithstanding the other provisions of this section the County Commissioners of Prince [*407] George's County in lieu of the rate of tax provided in subsection (b) above, are authorized by resolution to adopt a rate of tax as follows: In the case of instruments conveying title to property, the tax shall be at the rate of $1.10 for each $500.00 or fractional part thereof of the actual consideration paid or to be paid; and in the case of instruments securing a debt, the tax shall be at the rate of $1.10 for each $500.00 of the principal amount of the debt secured. . . ." (emphasis added).

   Subsequent to the enactment of Chapters[***17] 301 and 452 at the 1968 session, the County Commissioners for Prince George's County adopted a resolution pursuant to (r) setting the tax rate at $1.10, but then, acting under the authority of (q), replaced it with a second resolution fixing the rate at $1.65.  In the face of conflicting claims regarding the interplay between (q) and (r), we said in White that those subsections could be [**285] harmonized so as to render (r) neither superfluous nor repealed by implication. We found additional support for this result in the Legislature's express anticipation of Chapter 452 in Chapter 301, evidenced not only by the provision that (r) should obviously follow (q), but also by the opening words of (r), "Notwithstanding the other provisions of this section . . . ." We held, accordingly, that (r), not (q), was controlling in Prince George's County.

   In our decision in Prince George's Co. v. White, supra, however, we included the following dicta:
 
". . . As we see it, the basic rates are set at $0.55 in subsection (b).  By subsections (m), (n), (o), (p), and (r), the rates in the City of Baltimore and in 16 of the 23 counties, including Prince George's, are fixed in[***18] some other specific amount.  Subsection (q), which merely allows '[e]very county and Baltimore City' to fix the rate by resolution or ordinance, is presently not operative in any of those counties and the City of Baltimore." Id. at 318.
 
Appellants seize upon the last sentence to support their [*408] position in this case.  Unfortunately for them, we do not agree.

   It should be clear from a glance that (q) does not bear to (m) and (n) the same relationship which it does to (r).  Neither (m) nor (n), though repealed and re-enacted at the very same 1968 legislative session, includes the words found in (r), "Notwithstanding the other provisions of this section," or otherwise refers to any other subsection of § 277.  As we have demonstrated, (q) and (r) can be reconciled with each other while (q) vis-a-vis (m) and (n) produces an ambiguity. The statement in White upon which appellants rely here, however incorrect it may have been, was a mere dictum, not being necessary to a determination of the question there presented, Kardy v. Shook, 237 Md. 524, 544, 207 A. 2d 83 (1965), and is not controlling authority for their position. n5

n5 It might be well to note that unlike here, the record in White included neither the committee recommendations nor the report to which we have referred, undoubtedly because it was recognized that (q) vis-a-vis (r) did not present an ambiguity. The position of Prince George's County in White, as we there indicated, was simply that (r) was intended to apply only if (q) never became law.  As noted above, we rejected this argument because we determined that there had been no implied repeal of (r).  Although Prince George's County, in White, referred to the committee report for the first time in its motion for reargument, inclusion of the report in the record itself would not have produced a different result in that case because, as we have said here, it was inappropriate to resort there to the legislative history of Chapter 452.

[***19]

   What we have said disposes in large measure of appellants' further contention that subsections m and n, each containing the word "shall," are mandatory in character.  Although it is true that the word "shall" ordinarily imports a mandatory result, Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165, 169-70, 338 A. 2d 248 (1975); Maryland St. Bar Ass'n v. Frank, 272 Md. 528, 533, 325 A. 2d 718 (1974); Ginnavan v. Silverstone, 246 Md. 500, 505, 229 A. 2d 124 (1967), this rule is not absolute.  Whether a statute is to be treated as mandatory or directory must be ascertained from the provisions of the statute itself, and the word "shall" is not treated as signifying a mandatory intent if the context in which it is used indicates otherwise, Bright v. Unsat. C. & J. Fund Bd., Maryland St. Bar Ass'n v. Frank, [*409] Ginnavan v. Silverstone, all supra. Whatever may be the mandatory tenor of (m) and (n) standing alone, they must be read, as we said earlier, together with (q).  The result is that (q), by its own terms, qualifies the mandatory effect of those prior subsections.  We recognized in White, moreover, that subsection b, which also contains the word[***20] "shall," initially prescribed the basic recordation tax rate for the entire state.  Since 1957, the General Assembly has established by the addition of further subsections, including [**286] (m) and (n), a different rate for Baltimore City and some but not all of the 23 counties.  At no time since 1957 does it appear to have been suggested that (b) was of mandatory effect because of the word "shall." Were we to treat the word "shall" as having a mandatory import in (m) and (n), while not doing so in regard to (b), we would be according contrary meanings to the identical word within the very same statute, a consequence which, in the absence of legislative expression, we should strive to avoid.  The word "shall," therefore, no more produces in (m) and (n) a mandatory effect than it does in (b).

   We hold that Chapter 452, enacting subsection q of § 277, authorizes the governing bodies of Baltimore City and the counties enumerated in subsections m and n to fix by local ordinance or resolution the rate of recordation tax to be paid within their respective jurisdictions.

   (2)

   Appellants also urge that even if § 277 (q) permits Baltimore City and the counties to fix the recordation[***21] tax rate, the ordinances enacted by Baltimore City and by Baltimore and Charles Counties, though adopted after Chapter 452 was signed and though not themselves to become effective until July 1, are void because they were promulgated prior to the effective date of subsection q, July 1, 1968.  Appellants argue that when political subdivisions implement legislation prior to its effective date, they act beyond their authority.  They rely primarily upon an opinion of the Attorney General, 46 Opinions of the Attorney General 199 (1961), to support their contention. There, he [*410] took the position that the action of the Queen Anne's County Commissioners on May 29, 1961, purporting to put into effect an increase in the recordation tax rate, was unlawful because the act of the General Assembly authorizing them to do so did not become effective until June 1, 1961. The Attorney General there narrowly construed the rights and powers of the counties.  We have said, on the other hand, that a county may exercise "the authority with which [it has] been expressly, or as a reasonable implication, invested by law." Montgomery Co. v. Met. District, 202 Md. 293, 304, 96 A. 2d 353 (1953).[***22] We think that by reasonable implication Chapter 452 conferred upon the political subdivisions the power to adopt, prior to the effective date of the statute, implementing legislation which itself was not to become operative until that very same effective date.

   Appellants contend, however, that to prevent ultra vires action by a county, ordinances are required to conform precisely to the enabling legislation upon which they are based.  For this proposition, they cite Scrivner v. Baltimore, 191 Md. 165, 169, 60 A. 2d 190 (1948), Consolidated Diesel Elec. Corp. v. City of Stamford, 156 Conn. 33, 238 A. 2d 410, 411-12 (1968), Mastrangelo v. Buckley, 433 Pa. 352, 250 A. 2d 447, 452-53 (1969), and Taylor v. Abernathy, 422 Pa. 629, 222 A. 2d 863, 865 (1966). Those cases, however, involved discrepancies between the substantive aspects of the enabling and implementing legislation and are thus readily distinguishable.

   One of the recognized purposes in providing that a statute become effective on some future date, rather than upon the signing of the bill, is "to allow the government time to establish machinery" for enforcement of the act.  2 Sutherland, Statutory Construction[***23] § 33.07 (4th ed. Sands 1973). Here, the counties properly utilized the time before July 1 to establish appropriate tax rates.  They did not, however, collect the recordation tax at the increased rates until July 1, which by law, Code (1957, 1973 Repl. Vol.) Art. 19, § 35, is the beginning of their fiscal year.  Appellants maintain also that to enact an implementing ordinance prior to the effective date of the enabling legislation defeats [*411] another objective, "to inform persons of the provisions of a statute . . . in order that they may take steps to protect their rights [**287] and discharge their obligations." 2 Sutherland, Statutory Construction § 33.07 (4th ed. Sands 1973).  They claim that as a result of the action by the local units prior to July 1, the citizens of those subdivisions were unable to make their views on the ordinances known to their local governing bodies. We are not persuaded by this argument.  Appellants conceivably had more notice of the ordinances prior to the effective date than they might have been afforded had the counties and the City of Baltimore waited until July 1 before acting.  Nor did the local ordinances in any manner curtail appellants' [***24] right to petition Chapter 452 to referendum pursuant to Art. XVI, §§ 1 and 2 of the Maryland Constitution.

   The Supreme Court, under circumstances perhaps more compelling than those present here, rejected in Druggan v. Anderson, 269 U.S. 36, 46 S. Ct. 14, 70 L. Ed. 151 (1925), a contention that parallels appellants' position in this case. Contesting a refusal to issue a writ of habeas corpus, Druggan argued that the National Prohibition Act was void because it was enacted before the prohibition was placed in effect, although after the Eighteenth Amendment had been ratified. The Court, speaking through Mr. Justice Holmes, perceived the ratification as a present grant of power and held that the Constitution may give Congress "a present power to enact laws intended to carry out constitutional provisions for the future when the time comes for them to take effect." 269 U.S. at 39. See also Annot., 171 A.L.R. 1070, 1075-78 (1947). We hold that the enactment of Chapter 452 on May 7, 1968, the date on which it was signed by the governor, granted to the local authorities a present power to enact ordinances in preparation for increasing the tax rate on July 1, 1968.

   The result we[***25] reach here makes it unnecessary for us to pass on appellees' motion to dismiss the appeal.

   Judgment affirmed; appellants to pay costs. 

SECRETARY OF TRANSPORTATION OF MARYLAND v. MANCUSO et ux. 
No. 7 (Adv.), September Term, 1976
 
Court of Appeals of Maryland
 
278 Md. 81; 359 A.2d 79; 1976 Md. LEXIS 610

 June  24, 1976, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J., pursuant to certiorari to the Court of Special Appeals.

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

CORE TERMS:  pledge, debt service, pledged, railroad, redeemable, excise, special fund, issuance, non-tax, bonds secured, long-term, canal, levy, dormitory, stock, Constitutional Law, taxing authority, taxing power, maturity, fiscal, decree, express purpose, voter approval, financed, borrower, dollars, ad valorem property tax, tax revenues, property tax, ad valorem

COUNSEL: J. Michael McWilliams, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Thomas G. Peter, Assistant Attorney General, on[***3] the brief, for appellant.

   Thomas E. Plank and Roger D. Redden, with whom was W. Gar Richlin on the brief, for appellees.

JUDGES: Murphy, C. J., and Singley, Smith, Digges and Levine, JJ., and Charles E. Orth, Jr., Chief Judge of the Court of Special Appeals and James C. Morton, Jr., Associate Judge of the Court of Special Appeals, specially assigned. Murphy, C. J., delivered the opinion of the Court.

OPINIONBY: MURPHY

OPINION: [*83] [**79] The Secretary of the Maryland Department of Transportation (the Secretary) has appealed from a decree of the Circuit Court for Anne Arundel County which declared that the Department's Consolidated Transportation Bonds, Series 1976 (the Bonds), whose last serial principal maturity under the Secretary's resolution authorizing issuance of the Bonds was later than 15 years from the date of issue, constituted "debt" within the meaning of § 34 of Article III of the Constitution of Maryland.  Since § 34 requires that any "debt" contracted by the General Assembly must be discharged within 15 years from the time it was incurred, the decree declared that the Secretary's resolution authorizing issuance of the Bonds was illegal, and it enjoined[***4] him from seeking approval for their sale.

   Maryland Code (1957 Ed., 1967 Repl. Vol., 1975 Cum. Supp.), Article 94A, §§ 1 to 11A, inclusive, authorizes issuance of the Bonds for the purpose of financing transportation facilities.  Section 9 (a) levies and imposes an "annual tax" for the [**80] payment of the principal of and interest on the Bonds, consisting of existing excise taxes on motor vehicle fuel and certificates of title, and certain corporate taxes.  A sinking fund is established by § 9 (b) into which the proceeds of these taxes are required to be deposited; § 9 (c) provides that the taxes imposed and the proceeds thereof are "irrevocably pledged to the payment of the principal of and interest on the bonds . . . and no portion of the tax . . . shall be repealed, diminished or applied to any other purpose until such bonds and the interest thereon shall have become due and fully paid, or until adequate and complete provision for such payment shall have been made." Section 9 (d) provides that the Bonds do not constitute a debt or pledge of the State's faith and credit, "but shall be payable as to both principal and interest solely from the proceeds of the tax and other[***5] revenues levied, imposed, pledged or made available for such purpose."

   In the Secretary's resolution authorizing issuance of the Bonds, the department covenanted that should the monies in [*84] the sinking fund be insufficient to meet debt service requirements, it would "make appropriate requests through the executive budget process and before the General Assembly for such amount as may be necessary to make up such deficiency . . . ."

   In concluding that the Bonds, if issued with maturities in excess of 15 years, would violate the provisions of § 34 of Article III of the Maryland Constitution, the lower court held that "the imposition, levy and irrevocable pledge of tax revenues make these bonds 'debt' . . . [in the constitutional sense contemplated by § 34] notwithstanding the statement in . . . [§ 9 (d)] of the Act that Consolidated Transportation Bonds 'are not and shall not be deemed to constitute a debt or pledge of the faith and credit of the State . . . .'"

   Whether State bonds secured by a fund to which the State pursuant to statute has irrevocably pledged specific tax revenues constitutes a constitutional debt within the contemplation of § 34 is a question not[***6] heretofore considered by this Court.  The Secretary points to the origin and history of § 34 and contends that the "debt" with which that constitutional provision is concerned is only that which the State is unconditionally obligated to repay. He maintains that if the source of debt service payment is expressly limited and not backed by the State's faith and credit, it is not a constitutional debt. The nature of the fund from which debt service on the Bonds is to be paid is not relevant, he claims, as long as it is specifically limited.  The Secretary points out that the State has not promised to make payment on the Bonds from whatever source necessary, nor has it pledged its unlimited taxing power to the payment of the principal of and interest on the Bonds; rather it has pledged payment from a limited source only which includes specific, fixed rate taxes -- the bondholders not being entitled to the proceeds from any increase in those taxes, and the State being under no legal obligation to increase the taxes, or to provide other funds, in the event that the pledged tax revenues prove insufficient to pay debt service. From this the Secretary reasons that there is no difference[***7] between the Consolidated Transportation Bonds and State revenue bonds [*85] payable solely from non-tax revenues and not backed by the State's faith and credit, which the courts have held not to constitute "debt" under § 34.

   Section 34 provides, in pertinent part:

   "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 repealed or applied to any other object until the said debt and interest thereon shall be fully discharged . . . .  [**81] The credit of the State shall not in any manner be given, or loaned to, or in aid of any individual association or corporation . . . ."
 
The wording of § 34 is virtually unchanged from its formulation in Article III, Section 22 of the Constitution of 1851.  See Constitutional Convention Commission of Maryland, Constitutional Revision Study Documents 798-99 (1968). The debates of the Constitutional Convention[***8] of 1850 abound with references to the difficulty of marketing State bonds due to the State's poor credit condition at that time.  This situation resulted from the State's extension of long-term credit to railroad and canal companies from 1820 to 1840, generally by means of the State's subscription to the securities of the companies.  Payment of the subscriptions was often made by the transfer of long-term State bonds, issued upon the State's faith and credit.  The companies usually sold the bonds at substantial discounts, thus in effect raising capital by pledging the State's credit.  Constitutional Convention Commission, Report 214-15 (1967).  Examples of long-term extensions of credit include Ch. 175 of the Laws of 1832 ($500,000 to railroad companies, with interest of 4 1/2%, redeemable after 25 years); Ch. 241 of the Laws of 1834 ($3,000,000 to canal and railroad companies, with interest of 6%, redeemable after 35 years); [*86]Ch. 395 of the Laws of 1835 ($8,000,000 to fund various railroad and canal projects, with interest of 6%, redeemable after 50 years); Ch. 302 of the Laws of 1837 ($500,000 to a railroad, with interest of 3%, redeemable after 52 years); Ch. 416[***9] of the Laws of 1838 ($1,000,000 to canal companies, redeemable after 26 years); Ch. 20 of the Laws of 1839 ($663,000 to a railroad, with 6% interest, redeemable after 50 years).

   By 1841 the State's financial security was threatened by the failure of the foregoing investments (or general revenues) to produce funds sufficient to pay the State's debt service requirements.  Consequently the General Assembly imposed a series of taxes; their express purpose was to reduce the State debt. Chapter 23 of the Laws of 1841 (March Extra Session) provided for the first permanent statewide valuation of all real and personal property, and for the annual levying of a State property tax. This was followed eleven months later by an income tax (Ch. 325 of Laws of 1841).  However, these proved insufficient, and consequently various excise taxes were imposed (Chs. 184, 187, 237, 280 of Laws of 1844).  By 1848 these measures enabled the State to resume payment of current interest on the State debt; the State had been in arrears since 1842. See generally Hanna, A Financial History Of Maryland (1789-1848), 70-125 in 25 Johns Hopkins University Historical Studies (1907).  See also Johns Hopkins [***10] Univ. v. Williams, 199 Md. 382, 86 A. 2d 892 (1952); Bonsal v. Yellott, 100 Md. 481, 60 A. 593 (1905).

    This history illustrates the fiscal concerns which resulted in the placement of the debt provision in the Constitution of 1851.  It is a history replete with indiscriminate long-term financing, which resulted in the imposition of taxes whose express purpose was to ameliorate the prior abuses of the State's credit. It is thus clear that one of the purposes of the constitutional debt provision was to guard against future credit abuses by including within its purview any evidence of State indebtedness which is secured by its taxing power.

   We are not persuaded by the Secretary's principal argument that the limitation of source of debt service [*87] payment to exclude a pledge of the State's faith and credit removes the Bonds from the ambit of § 34.  In Mayor and City Council of Baltimore v. Gill, 31 Md. 375 (1869), our predecessors held that the pledging of city-owned stock to secure a loan of one million dollars to the city, which in turn loaned the funds to a railroad, created a municipal debt within the meaning of then Article 11, § 7 of the Maryland Constitution, [***11]despite a stipulation that the lenders should look to the [**82] pledged stock alone for repayment, and that the city was not responsible even if the stock was insufficient.

   Subsequent to Gill, there developed in Maryland the special fund doctrine, whereby revenue bonds secured by a limited source (usually the revenues of the project to be financed) and accompanied by a disclaimer that they constitute a State debt or obligate the State to levy or pledge taxes for their payment were held not to constitute "debt" within the meaning of § 34.  The first such case, Wyatt v. State Roads Comm., 175 Md. 258, 1 A. 2d 619 (1938) concerned bridge and tunnel construction bonds which were payable solely by tolls from the new facilities.  In holding that these bonds did not constitute debt, Chief Judge Bond said for the Court (175 Md. at 265):
 
". . . Whatever elements of contract by the State, or debt, might be thought to exist in the arrangement, clearly, so far as the cost of construction is concerned, there is no contract to add to the burden of the taxpayers of the State present or future, none to pay anything out of taxes, and no debt incurred for which taxes could be[***12] levied.  And that is the one kind of debt with which the constitutional clause deals.  There is no novelty in the arrangement for self-paying construction.  And it has long been settled that by use of the device no public debt within the meaning of constitutional safeguards and restrictions is incurred . . . ."
 
That the use of taxing authority could interfere with the vitality of this new doctrine was further indicated by the [*88] Court in determining that the State's covenant to maintain and operate the facilities was not a constitutional "debt":
 
". . . [A]n undertaking to pay undetermined, undeterminable, amounts of the cost of maintenance, repair, and operation in the future . . . if it can be classed as containing an element of debt at all, is not one for which taxes to pay interest and principal, and to pay the principal completely in fifteen years, might be provided in a tax law.  There can be no principal and interest in such a contract obligation.  . . . However heavy the burden might possibly become, the contract to carry it is not such a debt with principal and interest as is dealt with by the Constitution . . . ." Id. at 268.
 
Thus Wyatt[***13] recognized inferentially that a present obligation of the State to levy taxes to pay principal and interest would constitute debt.

   Later cases have expanded the special fund doctrine regarding revenue bonds, but none has applied the doctrine where the State's taxing authority was involved.  See Castle Farms, Etc. v. Lex. Mkt. Auth., 193 Md. 472, 67 A. 2d 490 (1949) (bonds not debt where secured by revenues from the facility to be funded); Lerch v. Md. Port Authority, 240 Md. 438, 214 A. 2d 761 (1965) (construction bonds not debt where payable solely from revenues of a proposed international trade center and secured by a mortgage thereon, despite appropriation of general funds to its construction).  Indeed, in Lacher v. Board of Trustees, 243 Md. 500, 221 A. 2d 625 (1966), which held that dormitory construction bonds, payable solely from non-tax revenues from the new dormitories themselves and from increased charges for the use of existing dormitories, did not constitute debt, we said:
 
". . . Maryland, in company with almost all jurisdictions that have considered the matter, holds that a State debt is not created by the issuance of bonds that are to be repaid from[***14] funds, not taxes, flowing solely from the facility to be created by the [*89] proceeds of the bonds, as long as there is no pledge of existing State property and no pledge of income from existing State property . . . ." (citations omitted).  Id. at 506-07. (emphasis added).
 
[**83] In limiting Gill, supra, to its holding that the creation of a lien on existing property to secure a borrower of money creates a debt by the borrower, we concluded:
 
". . . [T]he pledge of non-tax revenues from an existing facility towards the payment of revenue bonds issued by an agency of the State is not in itself the creation of a debt by the State." Id. at 508.  (emphasis added).
 
The repeated emphasis on the non-tax nature of these special funds is a clear admonition against the use of the taxing power of the State in conjunction with this special fund exception to the constitutional debt limitation.

   The cases from other jurisdictions cited by the parties in support of their respective positions generally depend upon the wording and scope of the debt restrictions contained in particular state constitutions.  See generally 64 Am. Jur. 2d Public [***15]  Securities and Obligations, §§ 6, 37 et seq. (1972). However, we find the experience of the State of Washington to be particularly relevant.  Article 8 of the Washington Constitution requires voter approval of any law authorizing "debt" in excess of a certain amount.  In 1949 the Washington Supreme Court held that limited obligation bonds secured by excise taxes on cigarettes were not debt, and therefore not subject to voter approval. See Gruen v. Tax Commission, 35 Wash. 2d 1, 211 P. 2d 651 (1949). However in 1963 the Washington court prospectively overruled Gruen by holding that bonds secured by the retail sales tax were "debt" in the constitutional sense.  See State ex rel.  Washington State Finance Committee v. Martin, 62 Wash. 2d 645, 384 P. 2d 833 (1963). Of the 522 million dollars in bonds issued between the two decisions, only 85 million were submitted to the voters for approval.  384 P. 2d at 837. The Martin court was [*90] apologetically aware of Gruen's effect on the fiscal procedures of the state:
 
". . . [A] single excise on a lone commodity, limited and precise, placed in a special fund for the redemption of bonus bonds, could[***16] understandably appeal to the majority of the judges as not constituting a general obligation of the state and hence not violative of the state's debt limit; but the very logic of the holding authorized preemption of portions of the state's general revenues by each succeeding session of the legislature in the form of segregating future sales tax revenues into special funds.  So it is that the reasoning of the minority in Gruen, clarified by time and events on the question of debt limitation, now seems more cogent and persuasive." 384 P. 2d at 837.
 
The Washington court recognized the utility of the special fund doctrine, but found that the true test of its application is
 
"not what comes out of the fund, but what goes into it.  If the revenues in it derive exclusively from the operation of the device or organ of government financed by the fund, as in the case of a toll bridge . . . any securities issued solely upon the credit of the fund are not debts of the state, but debts of the fund only.  But if the state undertakes or agrees to provide any part of the fund from any general tax, be it excise or ad valorem, then securities issued upon the credit of the fund are likewise[***17] issued upon the credit of the state and are in truth debts of the state.  Hence, we must take care that the employment of peripheral doctrines do not lead us away from the main point of the case.  What is a debt of the State of Washington?  Any obligation which must in law be paid from any taxes levied generally is, we think, a debt of the state.  It matters little whether the tax be ad valorem or an excise." 384 P. 2d at 842-43.
 
[*91] In like manner, the use of the taxing authority for debt service payment for the Maryland Consolidated Transportation [**84] Bonds creates a constitutional "debt" of the State.

   Finally, the Secretary's contention that § 34 reaches only those debts secured by the ad valorem property tax is plainly without merit.  The Constitution does not contain any such limitation.  Moreover, in light of the imposition of the other taxes of the 1840's to supplement the property tax and erase the State's fiscal embarrassment heretofore outlined, it is clear that the absence of this limitation was intentional.

   Decree affirmed; costs to be paid by appellant. 

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al. v.MARYLAND AUTOMOBILE INSURANCE FUND 
No. 122, September Term, 1975
 
Court of Appeals of Maryland
 
277 Md. 602; 356 A.2d 560; 1976 Md. LEXIS 989

 May  5, 1976, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Biener, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment affirmed; costs to be paid by appellant. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant insurer filed an appeal from the judgment of the Circuit Court for Anne Arundel County (Maryland), which held that insurer's uninsured motorist endorsement that required physical contact between the insured and unidentified vehicles was contrary to Md. Code Ann. § 541 (c) and therefore was void and unenforceable.

OVERVIEW:  Plaintiff, a driver injured when he took evasive action to avoid an unidentified motor vehicle, sued defendant, a state automobile insurance fund, after his insurer denied coverage on the ground that its policy's uninsured motorist endorsement required that there be physical contact between the insured and unidentified vehicles. Defendant thereafter sought a declaration that plaintiff was entitled to coverage under insurer's policy. Insurer appealed from the trial court's judgment that plaintiff was entitled to coverage under the endorsement because the provision requiring physical contact between the vehicles was contrary to Md. Code Ann. § 541 (c) and therefore was void and unenforceable. The court affirmed the judgment against the insurer. Md. Code Ann. § 243H, which permitted plaintiff to make a claim against the state automobile insurance fund to the extent that the claim was not covered by plaintiff's liability insurance, did not require physical contact between the vehicles. Therefore, insurer's limitation of coverage to instances of physical impact between the insured and the phantom vehicles violated the legislative mandate of Md. Code Ann. § 541 (c) and was void.

OUTCOME:  The court affirmed the judgment declaring insurer's uninsured motorist endorsement void. The endorsement provided less coverage than that provided by the state statute, which authorized claims against the state automobile insurance fund in cases involving unidentified motor vehicles, but which did not require physical contact between the vehicles.

CORE TERMS:  coverage, motor vehicle, endorsement, physical contact, insured, void, uninsured motorist endorsement, aggregate, phantom, insure, limitation of coverage, qualified person, uninsured motorist coverage, uninsured motor vehicle, entitled to coverage, liability insurance, unidentified, uninsured, unenforceable, ascertained, ownership, subtitle, innocent

CORE CONCEPTS -  

Insurance Law: Automobile Insurance: Uninsured Motorists
See Md. Code Ann. § 541(c).

Insurance Law: Automobile Insurance: Uninsured Motorists
See Md. Code Ann. § 243H.

Insurance Law: Automobile Insurance: Indemnity
"Coverage" is a common insurance term; it is defined as the "aggregate of risks covered by the terms of a contract of insurance."

Governments: Legislation: Construction & Interpretation
While it is true that the construction placed upon a statute by administrative officials soon after its enactment should not be disregarded except for the strongest and most cogent reasons, it is also true that an administrative interpretation contrary to the clear and unambiguous meaning of the statute will not be given effect.

COUNSEL: James K. Carmody, with whom were Serio, Carmody & Nichols on the brief, for appellants.

   L. Dale Burgmeier and William A. Franch, with whom were Goldsborough, Franch [***2]& Collett and John J. Corbley on the brief, for appellee.

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

OPINIONBY: MURPHY

OPINION: [*602] [**561] On May 6, 1973, Daniel Saxon was injured while driving an automobile with the permission of its owner Kathleen [*603] Koegel.  He claimed the accident occurred when he was forced to take evasive action to avoid an unidentified motor vehicle which fled the scene.  There was no physical contact between the two vehicles.

   At the time of the accident, Saxon was an additional insured under a policy issued to Koegel by State Farm Mutual Automobile Insurance Company (State Farm); the policy contained an uninsured motorist endorsement known as "Coverage U" which had been approved by the Maryland Insurance Commissioner and which required, as a prerequisite to coverage, that there be physical contact between the insured and unidentified vehicles.  State Farm denied coverage under the endorsement because of the absence of physical contact.

    Saxon filed suit in the Circuit Court for Anne Arundel County against the Maryland Automobile Insurance Fund (MAIF); MAIF thereafter[***3] sought a declaration that Saxon was entitled to coverage under State Farm's policy because its uninsured motorist endorsement was contrary to the provisions of Maryland Code (1975 Cum. Supp.) Art. 48A, § 541 (c), and was therefore void, unenforceable, and contrary to the public policy of the State. n1 The court (Biener, J.) held that Saxon was entitled to coverage under the endorsement because the provision requiring physical contact between the vehicles was contrary to § 541 (c) and therefore was void and unenforceable. We granted MAIF's petition for a writ of certiorari to the Court of Special Appeals prior to argument in that court.  See Code (1974), Courts and Judicial Proceedings Article § 12-201.

n1 MAIF was created by chapter 73 of the Acts of 1972; it succeeded the Unsatisfied Claim and Judgment Fund in its role of protecting innocent persons injured by uninsured or improperly insured motorists.  See Article 48A, §§ 243G through 243L.

   At the time of the accident, § 541 (c) provided:

   "Uninsured [***4]  motorist coverage.  -- In addition to any other coverage required by this subtitle, every policy of motor vehicle liability insurance issued, sold, or delivered in this State after January 1, 1973 [*604]may contain coverage, in at least the amounts required under § 7-101 of Article 66 1/2 of the Annotated Code of Maryland (1970 Replacement Volume and 1972 Supplement), for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle. The coverage required under this subsection (c) shall be in such form and subject to such conditions as may be approved by the Commissioner of Insurance.  In no case shall the uninsured motorist coverage be less than the coverage afforded a qualified person under Article 48A, §§ 243H and 243-I." (Emphasis added.) n2
 
Article 48A, § 243H provides, in pertinent part:

   "(a) Types of claims which may be made against [the Maryland Automobile Insurance] Fund.  -- The following types of claims arising after January 1, 1973, may be made against the Fund[***5] under this section subject to the provisions of this subtitle, and to the extent that [**562] the claim is not covered by a policy of motor vehicle liability insurance:

   "(1) Claims for the death of or personal injury to a qualified person or for damage to property in excess of $100, arising out of the ownership, maintenance or use of a motor vehicle in this State where the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained or it is established that the motor vehicle, at the time the accident occurred, was in the possession of some person other than the owner without the owner's consent and that the identity of the person cannot be ascertained; . . . ."
 
That neither § 243H nor any of the cases construing the [*605] statute require physical contact between the vehicles is conceded by State Farm.  See, e.g., Kres v. Maryland Auto. Ins. Fund, 273 Md. 289, 329 A. 2d 44 (1974); Weber v. Unsat. C. & J. Fund Bd., 261 Md. 457, 276 A. 2d 86 (1971). It contends, however, that the terms and conditions of its uninsured motorist endorsement, though different from, are not necessarily less than those of Art. 48A, § 243H and I. [***6] We find no merit in the argument.

n2 The uninsured motorist coverage was made mandatory by chapter 562 of the Acts of 1975.

   Mindful of the remedial nature of the statutory plan, which dictates a liberal construction in order to effectuate its purpose of assuring recovery for innocent victims of motor vehicle accidents, Unsatisfied C. & J. Fund v. Hamilton, 256 Md. 56, 60, 259 A. 2d 303 (1969); Allied American Co. v. Comm'r, 219 Md. 607, 611, 150 A. 2d 421 (1959), we conclude that the "coverage" provided in the State Farm endorsement was clearly less than the "coverage" provided in § 243H.  "Coverage" is a common insurance term; it has been defined as the "aggregate of risks covered by the terms of a contract of insurance." Webster's Third New International Dictionary 525 (1961).  See, e.g., Traders State Bank v. Continental Insurance Co., 448 F. 2d 280, 283 (10th Cir. 1971); Ryan v. Cuna Mutual Insurance Society, 84 Wash. 2d 612, 529 P. 2d 7, 9 (1974); D'Angelo v. Cornell Paperboard Products [***7]  Co., 59 Wisc. 2d 46, 207 N.W.2d 846, 849 (1973). The aggregate of risks against which the State Farm endorsement insures is "less than" the aggregate against which MAIF provides protection under § 243H, since the former does not insure against the non-impact phantom driver who causes an accident, while the latter does.  Therefore, State Farm's limitation of coverage to instances of physical impact between the insured and the phantom vehicle plainly violates the legislative mandate of § 541 (c) and is void.

   State Farm contends that approval of the endorsement by the Insurance Commissioner, who is charged with enforcing the insurance statutes, indicates that it does not violate § 541 (c).  While it is true that the construction placed upon a statute by administrative officials soon after its enactment should not be disregarded except for the strongest and most [*606] cogent reasons, it is also true that an administrative interpretation contrary to the clear and unambiguous meaning of the statute will not be given effect.  Scoville Serv., Inc. v. Comptroller, 269 Md. 390, 396, 306 A. 2d 534 (1973); Comptroller v. Rockhill, Inc., 205 Md. 226, 233, 107 A. 2d 93 (1954).[***8] The approval of the State Farm endorsement by the Insurance Commissioner is hardly persuasive where, as here, the endorsement so clearly limits coverage in violation of a statute.

   Judgment affirmed; costs to be paid by appellant. 

ANNE ARUNDEL COUNTY, MARYLAND et al. v. McDONOUGH et al. 
No. 4, September Term, 1975
 
Court of Appeals of Maryland
 
277 Md. 271; 354 A.2d 788; 1976 Md. LEXIS 967

 March  9, 1976, Decided

   PRIOR HISTORY: [***1]  
Three appeals in one record from the Circuit Court for  Anne Arundel  County; Wray, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Decree affirmed; costs to be paid by the appellant, cross-appellee, Anne Arundel County, Maryland.

CORE TERMS:  ballot, referendum, election, voter, zoning, ordinance, classification, newspaper, median, electorate, notice, voting, county council, rezoning, parcel, publicity, charter, lane, pre-election, advertisement, referenda, residential, west side, petitioned, undertook, highway, intelligent, machines, comprehensive zoning, supervisors

COUNSEL: Jay I. Morstein and Stephen H. Sachs, with whom were Elizabeth Logan Nilson, Michael R. Roblyer, John M. Court and Emile J. Henault, Jr., on the brief, for appellants.

   Amicus Curiae brief filed by State of Maryland, Francis B. Burch, Attorney General, and George A. Nilson, Assistant Attorney [***4]  General, on the brief.

   Wilson K. Barnes and Marvin H. Anderson for appellees.

JUDGES: Murphy, C. J., and Singley, Smith, Digges, Levine and O'Donnell, JJ. O'Donnell, J., delivered the opinion of the Court.  Singley, J., concurs in the result.  Murphy, C. J., and Levine, J., dissent and Levine, J., filed a dissenting opinion in which Murphy, C. J., concurs at page 308 infra.

OPINIONBY: O'DONNELL

OPINION: [*272] [**789] The issues before us in this case pertain to the legality and regularity of a referendum, submitted to the electorate of Anne Arundel County on 41 amendments, adopted by the [*273] County Council, when it enacted a comprehensive zoning ordinance for the County's Fourth Tax Assessment District, affecting in particular acreage located within the median of Maryland Route [**790] 3, and properties abutting each side of that highway.

   Maryland Route 3, running through the County from north to south, traverses portions of the Second, Third and Fourth Tax Assessment Districts.  In the early 1950's, the State Roads Commission converted what was originally a two-lane road to a four-lane separated thoroughfare.  In this dualizing process the present southbound[***5] lanes were constructed some distance westward of the original highway, thus creating a median area, ranging in width from 50 to 500 feet -- with a fairly typical width of 300 feet -- which extends from property occupied by a Howard Johnson's Restaurant (on the north), in the vicinity of New Cut Road, near Glen Burnie, to the county line (on the south), at the Patuxent River.

   Since the highway construction, older residences within the median have continued to be occupied; although several "sample" homes, used to advertise and sell prefabricated dwellings have been therein erected, no new residential construction has taken place in the median. From the very nature of this enclave, there had been substantial commercial development within the median up until 1973, and the properties therein came to enjoy commercial zoning classifications.

   On May 24, 1973, Bill No. 59-73 was submitted to the County Council, proposing a comprehensive rezoning for the Fourth Tax Assessment District and the adoption and application of new zoning maps to the Alternate Zoning Regulations contained in the Anne Arundel County Code.  The import of the Bill, as submitted, basically "down-zoned" the commercial[***6] properties located within the median to R1 (Residential) classifications; it proposed as well the down-grading of the commercial properties, along the eastern and western boundaries of Route 3 to R1 and RA (Residential Agricultural) classifications. n1

n1 One property, along the west side of the southbound lanes of Route 3, was proposed for a W1B (Industrial Development) classification.

   [*274] Prior to the submission of the Bill, and prior to the release of the proposed legislation to the public on April 3, 1973, the County's Office of Planning and Zoning, the sponsor of the legislation and the originators of the map revisions, conducted three public hearings within the affected district. Announcements of such meetings were placed in three local newspapers, the Villager, the Maryland Gazette and the Anne Arundel Times, all having a general circulation within the county.  Mrs. Marian J. McCoy, the County Planning and Zoning officer, in the lower court, gave testimony that a general announcement [***7]had as well been sent out
 
"[t]o as many people that we could find from the tax records [so] that, if their property was affected, . . . they would basically know, at least as far as the suggested maps were concerned that they should take some interest in the process.  . . . Basically, a notice went out advising [that] the property was being suggested from such-and-such a classification to such-and-such a classification, and that information was available at our office, including, if they wished, a list of what the permitted uses were in that particular classification." (emphasis added).

   The reason for the proposed "down-zoning" of the properties, within the median, and along the Route 3 corridor, from commercial to residential, according to the testimony of Mrs. McCoy, was because "in the light of dangerous traffic conditions along Route 3, it would be in the best interests of the health, safety and general welfare of the County." She further testified that the Planning Board "wanted to certainly not see any further commercialization along the Highway until something was done in order to correct what they considered to be a very dangerous condition due to[***8] the traffic and the accident rates that [**791] they became familiar with." (emphasis added).

   After the public hearings conducted by the Office of Planning and Zoning, the comprehensive zoning ordinance, with accompanying maps -- apparently unchanged as a result of the hearings -- was submitted to the County [*275] Council. The Council conducted eight public hearings on the proposed legislation.  As a result of those hearings, various councilmen proposed a total of 145 amendments to the Bill and its accompanying maps.  Four additional public hearings were held by the Council on the proposed amendments, and on August 6, 1973, those 145 amendments to the comprehensive zoning plan and accompanying maps were adopted. As amended, Bill No. 59-73 was passed by the Anne Arundel County Council on August 20, 1973 and submitted to the then County Executive Joseph Alton.

   Pursuant to § 405 (h) of the Anne Arundel County Charter, granting the county executive the right "to veto, in his discretion, ordinances of the County Council . . . and to return the same to the Council . . .," Mr. Alton, on August 30, exercised his veto prerogative as to 87 of the proposed 145 amendments, concurred[***9] in the remaining 58, and on August 31, 1973, returned Bill No. 59-73 to the Council.  The Council sustained the executive's veto as to 31 of the amendments it had adopted, and overrode the veto of the remaining 56. Thus, the proposed comprehensive zoning ordinance, as proposed in Bill No. 59-73, was finally enacted by the County Council on September 4, 1973, with 114 amendments and map changes.

   Disagreeing with the Council's legislative wisdom, certain citizen groups and civic associations, undertaking to act pursuant to Section 308 of Article III of the Anne Arundel County Charter and Article XVI of the Constitution of Maryland, circulated petitions in the form required by Maryland Code (1957, 1971 Repl. Vol.) Art. 33, § 23-3, and obtained the signatures of the requisite number of registered voters to bring to referendum 41 specifically selected amendments of the 114 adopted by the Council. n2

n2 Although the circulated petitions contained a verbatim account of each of the 41 amendments petitioned to referendum (Nos. 34, 39, 40, 41, 42, 43, 44, 45, 46, 49, 55, 56, 58, 59, 68, 72, 73, 75, 77, 79, 80, 85, 86, 87, 88, 90, 91, 92, 96, 97, 100, 105, 106, 113, 136, 137, 140, 141, 143, 144 and 145), including a metes and bounds description of each affected property, a description of the zoning proposed in the ordinance as submitted, and that resulting by virtue of the amendment adopted, the printing was so condensed on the petition forms that it could not be read by the signatories, except with the assistance of a magnifying glass.  The record confirms this want of readability.

[***10]

   [*276] The 41 amendments petitioned to referendum affected the zoning on 42 tracts of land.  Twenty-six of the amendments (Nos. 39, 40, 41, 43, 44, 45, 46, 58, 80, 85, 86, 87, 88, 90, 91, 92, 96, 97, 100, 113, 136, 137, 140, 141, 143 and 145) related to properties wholly within the median strip between the roadways of Route 3; one amendment (No. 86) involved two properties, with the same ownership, one lying within the median strip and the other, opposite thereto, fronting on the westernmost side of the highway's southbound lanes; nine amendments (Nos. 34, 42, 56, 59, 68, 72, 105, 106 and 144) pertained to properties fronting entirely on the westernmost right-of-way line of the southbound lanes and five of the amendments (Nos. 49, 55, 75, 77 and 79) had to do with properties fronting entirely on the easternmost right-of-way line of the highway's northbound lanes. The last amendment on referendum (No. 73) involved the zoning of two contiguous properties -- 10 miles distant from Route 3 -- located on Brockridge Road, near Maryland City, in Laurel, but within the Fourth Tax Assessment District of Anne Arundel County.

   As introduced, the ordinance undertook to "down-zone" every[***11] commercially used property within the median to that of R1 [**792] (Residential).  Amendment No. 44 changed that proposed residential use to C2 (Commercial, office); amendments Nos. 46 and 140 changed such proposed use to a classification of C3 (General Commercial), as did amendment No. 80, for a portion of the tract covered by it.  All the remainder of the amendments, as to properties within the median, changed the proposed residential classification to C4 (Highway Commercial).  Thus, the amendments, as affecting the properties within the median, retained the zoning uses in effect prior to the introduction of the legislation.

   Pursuant to amendment No. 56, property on the west side of the highway, proposed for an RA (Residential Agricultural) classification, was changed to a W1-B (Industrial Development) use; a W1-B classification, proposed for another of the parcels on the west side of the highway, by amendment No. 144, was changed to C2 [*277] (General Commercial).  Under amendments Nos. 34 and 72, a proposed R1 (Residential) classification was changed to R5 (Residential), for other lands abutting the westernmost side of the southbound highway lanes. The five properties[***12] fronting on the easternmost northbound lane of Route 3, proposed for RA (Residential Agricultural) classifications, by amendments Nos. 49, 55, 75, 77 and 79, were changed to that of C4 (Highway Commercial). The property in Laurel -- 10 miles distant from Route 3 -- classified as R5 (Residential) in the original ordinance, was changed by amendment No. 73 to that of C1-A (Neighborhood Commercial).  These amendments, as to properties outside the median, undertook as well to retain substantially the same zoning uses to which they had theretofore been entitled.

   It must here be observed that both amendments Nos. 96 and 36 undertook to classify as C4 the property of the J. F. Johnson Lumber Co., located within the median. While amendment No. 96, which was petitioned to referendum, embraced as well four or five properties contiguous to the lumber company, amendment No. 36, not on referendum, related solely to that company's property. Notwithstanding the results of the referendum as to amendment No. 96, the J. F. Johnson Lumber Co. obtained a judicial determination, unopposed by the County, that, pursuant to amendment No. 36, its property had acquired a C4 classification. n3

n3 On November 27, 1974, the J. F. Johnson Lumber Co. (one of the original complainants in these proceedings), after having filed an amended bill of complaint, was granted summary judgment, unopposed by the County, which declared that its property, pursuant to amendment No. 36, was classified as C4 (Highway Commercial) and that it was unaffected by amendment No. 96 or the results of the referendum as to that amendment.

[***13]

   It was with this factual background that the County Council formulated the question to be submitted on referendum and certified it to the Board of Supervisors of Elections as "Question D." The Supervisors adopted the wording of the question, as submitted, for inclusion as a ballot item on the voting machines for the general election to be held on November 5, 1974.  The ballot question, [*278] undertaking to submit to the voters all 41 amendments to the ordinance enacted by the Council was to read as follows:

   "QUESTION NO. D

   REFERENDUM

   To rezone certain parcels of land in the median strip, the west side of the southbound lane and the east side of the northbound lane of Route 3; and to rezone one parcel of land on the west side of Brockridge Road near Ellen Street; all parcels of which are in the Fourth Assessment District and which were rezoned by virtue of amendments to Bill No. 59-73.

   FOR THE AMENDMENTS TO THE BILL

   AGAINST THE AMENDMENTS TO THE BILL

   [**793] As "Question D" however was actually placed on the voting machines, as a ballot label, the question, as worded, is followed by only the two words "FOR" and "AGAINST," rather than giving the electorate[***14] the option to vote "FOR THE AMENDMENTS TO THE BILL" or "AGAINST THE AMENDMENTS TO THE BILL."

   On October 4, 1974 -- 32 days before the election -- Thomas J. McDonough and his wife, the owners of property within the median to which amendment No. 113 related, together with 20 other owners of properties, both within and without the median, affected by 20 of the other amendments n4 (the appellees and cross-appellants here), filed a bill of complaint in the Circuit Court for Anne Arundel County against the Board of Supervisors of Elections (Supervisors), subsequently amended to include Anne Arundel County, Maryland, (the County), (the [*279] appellants and cross-appellees here), which sought injunctive and declaratory relief.  The complainants sought an injunction restraining the Supervisors from placing the 41 amendments and "Question D" on the ballot; they also sought a judgment declaring: (a) that Section 308, Article III of the Charter of Anne Arundel County was unconstitutional, as contrary to the provisions of Articles XVI and XI-A of the Constitution of Maryland, as well as the Express Powers Act, Code (1957, 1973 Repl. Vol.) Art. 25A; (b) that none of the provisions contained[***15] in Code (1957, 1971 Repl. Vol.) Art. 33, §§ 23-1 through 23-11, purported to delegate or to permit the filing of a referendum petition with respect to an ordinance of the County Council of Anne Arundel County; (c) that the purported description of the amendments as proposed in "Question D" was "inapplicable, deceptive, and will result in an unfair and defective election upon the purported referendum;" (d) that all 41 of said amendments "may not be lumped together under one heading and subject to one vote for all 41 . . . zoning amendments as a group;" (e) that since the legislation purported to establish a comprehensive zoning map for the Fourth Assessment District and pertained to only a portion of the County, such referendum was being improperly addressed to the voters of the whole County, and (f) that the effect of such referendum would violate the complainants' rights under § 40 of Article III of the Constitution of Maryland, Art. 23 of the Declaration of Rights, and the Fifth and Fourteenth Amendments to the Constitution of the United States.

n4 The complainants owned properties covered by amendments Nos. 39, 43, 44, 49, 58, 59, 68, 72, 73, 75, 77, 79, 80, 86, 88, 90, 91, 96, 100, 113 and 137.

[***16]

   Because of the proximity of the scheduled general election, at the time the County was impleaded, and the mechanical and logistical problems attending the preparation of the voting machines (called to the court's attention by the Attorney General), the lower court (Childs, J.), passed an order on October 17, 1974 postponing the trial until November 13, 1974, but providing therein that all issues were: "preserved for the court's consideration and upon decision are to have the same force and effect as if heard and decided prior to . . . the election of November 5, 1974." This [*280] action by the trial court was in accord with our holdings in Tyler v. Secretary of State, 230 Md. 18, 185 A. 2d 385 (1962) and in recognition of the complainants' apprehension that their rights might be prejudiced by a post-election trial, since in Dutton v. Tawes, 225 Md. 484, 491, 171 A. 2d 688, 690 (1961) this Court had "clearly recognized [the] difference between the effect given to modal provisions of the election laws before [an] election and the effect of the same provisions [when viewed] after election."

   Though forewarned of the complainants' objections, both legal and factual, [***17]no steps were taken to restate the content of "Question [**794] D." During the calendar week prior to the election, the Supervisors published in four newspapers of general circulation within the County, a specimen ballot as it would appear on the voting machines, including the text of "Question D." n5 The Anne Arundel County League of Women Voters published a sample ballot in its official newspaper, undertaking to give an account of all candidates and referendum issues.  Twenty-three thousand copies of the League's newspaper were distributed to various post offices, banks, libraries and stores within the County.

n5 "Question D," as it was to appear on the voting machines, was published in the Anne Arundel Observer on October 30, 1974, in the Anne Arundel Times on October 31, 1974, in the Maryland Gazette on October 31, 1974 and in the Evening Capital on November 1, 1974.

   On October 15, 1974, Mr. Alton, as the out-going County Executive, upon his official stationery, mailed a personal letter[***18] to each taxpayer within the County, at addresses taken from County tax assessment records, and enclosed therein an "explanation" of the local questions.  In the letter he outlined the accomplishments of his administration, thanked the voters "for their support and thoughtful expressions of confidence in [him]," urged their support for Questions Nos. 1, E and F, n6 and exhorted the defeat of "Question D." Enclosed with the letter was a card containing the Executive's recommendations as to how to vote on the [*281] respective questions.  The card, as to "Question D," was as follows:

   [SEE ILLUSTRATION IN ORIGINAL]

n6 These local questions related to the acquisition of land for public projects and for the revitalization of a blighted area in Glen Burnie, none of which are here relevant.

   Although the proponents of the referendum, in their circulated petitions, had set forth verbatim each of the 41 amendments -- though illegible except with the use of a magnifying glass -- neither the newspaper of the League[***19] of Women Voters, nor the Board of Supervisors of Elections, nor the County Executive undertook in any way to apprise the electorate of either the specific content or the nature of any one of the amendments.

   When the voters throughout Anne Arundel County went to the polls on November 5, 1974, they cast 36,656 votes "against" Question D, while 11,314 voters cast ballots "for" the question.  The practical result of the voters' choice was to negate the effect of the 41 amendments, which had rejected the zoning recommended by the Office of Zoning and Planning, as submitted in the original ordinance.

    [**795] When the matter came before the Circuit Court for hearing, the chancellor (Wray, J.) pointed out that "[p]ursuant to Article XI-A of the Maryland Constitution, the voters of Anne Arundel County adopted a Charter . . . Sec. 308 (a) provides that 'The people of Anne Arundel County reserve to themselves the power known as "The Referendum", by petition to have submitted to the registered voters . . . any ordinance or part of any ordinance . . . .'" Declining to hold Sec. 308 unconstitutional, the lower court expressed the view: 
 
"Nowhere in this section, in the Charter, in[***20] an ordinance, in the Maryland Code, or in the Maryland Constitution is there set out any [*282] requirement of publication or other notice of the County's local laws to the electorate so that the electorate may know that there is to be a referendum and have a reasonable chance to find what it is about.  This is a fatal flaw.  . . . Due process of law 'is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty, or property, whether the proceeding be judicial, administrative or executive in its nature,' Ulman v. Baltimore, 72 Md. 587 (1890), at page 593.  The essence of due process is notice. The due process rights of the Complainants are not protected where there is no publication or other reasonable notice provision with respect to a referendum, so that reasonably well-informed voters may be assured.  The procedural requirements of a law providing a referendum are mandatory where the attack upon it is made before an election, Dutton v. Tawes, 225 Md. 484 (1961). The Respondents can not be made to comply with mandatory procedural requirements with respect to publication and notice when the law affords no procedural requirements. [***21] (Even if the rule were substantial compliance, there is no law against which to measure the Respondents' acts to determine substantial compliance.) It follows that the result of the vote of the people of Anne Arundel County on 5 November 1974 on Question D is a nullity." (footnotes omitted).

   A decree was entered on December 12, 1974 declaring the result of the vote on "Question D" to be "a nullity and of no effect" and ordering Anne Arundel County to "proceed administratively in accordance with ordinance [No.] 59-73 as enacted."

   The County and the Supervisors filed an appeal; the complainant property-owners filed a cross-appeal.  While the case was pending in the Court of Special Appeals, we granted certiorari pursuant to Code (1974), Courts and Judicial Proceedings Article, § 12-201.

   [*283] In support of their contention that the chancellor was in error, the appellants assert that the provisions in Sections 16-6 (a) and (b), 23-1 (a), 8-5 (a) and 2-10 (a) in Art. 33 pertain to the publication and notice of local questions petitioned to referendum by county voters and that those provisions were gratified with respect to "Question D." Alternatively, they argue, should[***22] such sections in Article 33 be inapplicable, that actual notice given to the electorate fully satisfied the rights of the complainants to "due process" of law.  Collaterally, in urging us "to decide all of the legal issues raised below by the appellees," they argue that the 41 amendments were properly submitted as a single ballot question, that the question as placed on the ballot "was sufficiently fair and informative," that the issue was "properly submissible to the entire county," and that even if the results of the election "down-zoned the complainants' properties," the appellees were not deprived of their property in violation of their constitutional rights.  The property owners, in their cross-appeal, point out that the chancellor "did not grant every part of [their] request for declaratory and other relief" and here reassert each of the contentions raised in the trial court.

   [**796] At the threshold of these questions, we point out that "[t]he Referendum, broadly speaking, is the reservation by the people of a State, or local subdivision thereof, of the right to have submitted for their approval or rejection, under certain prescribed conditions, any law or part of a[***23] law passed by the law making body.  . . ." See Beall v. State, 131 Md. 669, 678, 103 A. 99, 102 (1917), where the history of the right of referendum and the abuses it was designed to abolish were discussed.  See also Board of Education of Frederick County v. Mayor & Aldermen of Frederick, 194 Md. 170, 177, 69 A. 2d 912, 915 (1949). Ordinarily, a referendum is limited to legislative matters, although the adoption of a charter, charter amendments and local laws authorizing the issuance of bonds or other evidences of indebtedness clearly come within its ambit.  Rezoning, pursuant to a comprehensive plan, has been held to be a legislative function.  Board of County Commissioners for [*284] Prince George's County v. Edmonds, 240 Md. 680, 684, 215 A. 2d 209, 211 (1965); Board of County Commissioners of Prince George's County v. Levitt & Sons, Inc., 235 Md. 151, 158, 200 A. 2d 670, 674 (1964). Thus, it would appear -- other considerations aside -- that legislation, adopting a comprehensive zoning, generically should come within the scope of the right of referendum, to the extent that it might be legally invoked.

   In support of the chancellor's reasoning, the property[***24] owners basically contend that Section 308 (a) of Article III of the Anne Arundel County Charter, whereby "the people of Anne Arundel County reserve[d] to themselves the power [of] 'The Referendum'" transcends the power authorized by Article XI-A of the Constitution, as well as that contained within the Express Powers Act (Code, (1957, 1973 Repl. Vol.) Article 25A) and is in conflict with Article XVI of the Maryland Constitution, limiting referenda by petition to "any Act, or part of any Act of the General Assembly." From these premises, they argue that the provisions within Article 33, are limited in their application, as they relate to referenda, to those specifically provided for in Article XVI of the Constitution, to charter board questions or proposed charter amendments, both under Article XI-A of the Constitution, and to the borrowing of money or issuing of bonds or other evidences of indebtedness, within the provisions of the Express Powers Act, Article 25A, § 5 (P).  Conceding, arguendo, the validity of Section 308 (a) of Article III of the County Charter, they further assert that there are no provisions within Article 33 which contain any requirement concerning the[***25] publication and notice to be given local ordinances petitioned to referendum. Lastly, they urge that should the provisions of Article 33 be applicable, they were not complied with as to the pre-election publication of notice required for a valid referendum, nor as to the wording of "Question D."

   The appellants point out that the chancellor recognized the constitutionality of Section 308 (a) of Article III of the County Charter; that although Article XI-A "neither expressly requires nor prohibits the inclusion of a [*285] referendum provision in the charter of a home rule county, a charter may nevertheless include such a provision," and that upon the adoption of a charter, the right of referendum is implicitly retained in the people with respect to county local laws.  From this premise, the appellants contend that the several references within Article 33 to "local questions" and "questions of local concern," clearly demonstrate a legislative intent that the provisions of Article 33 are applicable to the referenda of all local questions, and that these procedural requirements concerning publication and notice were effective in connection with "Question D."

   In Reeder v. Board [***26]  of Supervisors of Elections, 269 Md. 261, 305 A. 2d 132 (1973), a case involving the applicability of the residency requirements of Article 33 to an individual, who sought to register to vote [**797]in Queen Anne's County on local issues, this Court held that county elections were within the scope of Article 33, and expressly noted that §§ 16-6 (a) and 23-1 (a) were applicable to county certification of questions for the ballot.

   Judge Barnes, there writing for the Court, stated:

   "The term 'election' is defined by Maryland Code (1957, 1971 Repl. Vol.) Art. 33, § 1-1(a)(6), as follows:

   '"Election" means the process by which voters of the State, or any county or city thereof, vote for any party or public officer pursuant to the laws of this State or the United States, any constitution or constitutional amendment, public law, public act or proposition and unless otherwise indicated shall include all elections, primary, general, special, local, congressional, presidential, or State-wide.  It does not mean any municipal election other than in Baltimore City unless otherwise specifically provided for in this article.' (Emphasis added)

   "This definition includes[***27] voters of 'any county' voting for any 'public office' as well as 'local' [*286] elections. The argument of the appellant that county elections are excluded from the scope of Article 33 because they are 'municipalities,' and the only municipality included is Baltimore City, is clearly unsound in view of the definition and the references in other sections of Article 33 to county elections and local elections. See, e.g., Sections 4A-6 (a) (filing fees); 9-4 (filling local vacancies including county offices); 16-6(a) and 23-1(a) (county certification of questions for the ballot)." (emphasis in original) 269 Md. at 263-64, 305 A. 2d at 134.

   See also County Council v. Montgomery Ass'n, 274 Md. 52, 333 A. 2d 596 (1975) where Article 33 was characterized as "a comprehensive State Election Code," containing "detailed provisions covering every aspect of the electoral processes in Maryland," and providing for the "administrative supervision of election procedures" and "the administrative supervision of elections on both a state-wide and a local level." 274 Md. at 60-61, 333 A. 2d at 601.

   In resolving the question of the applicability of the provisions set forth in Article[***28] 33 as they affect a local referendum, it is not necessary for us here to pass upon the efficacy of § 308 (a) of Article III of the Anne Arundel County Charter, and we do not do so.  We point out however that in Levering v. Board of Supervisors of Elections of Baltimore City, 129 Md. 335, 337, 99 A. 360 (1916), our predecessors implicitly recognized that a provision in the City Charter could provide for the submission of referenda to the local voters, without specific authorization therefor contained in the State Constitution, or an act by the legislature.  In Levering, the Court, when faced with the validity of the inclusion of a referendum question involving the repeal of a Baltimore City ordinance, which had previously prohibited athletic events on Sundays, decided "that no authority existed, on the part of the Mayor and City Council [of Baltimore], or of the Supervisors of Election, to provide for the submission of the question . . . at the general election of" 1916, because the Mayor and City Council had not received permission from the legislature to submit such [*287] a question to the public, and also, in the alternative to not receiving such legislative permission, [***29] that there was "[n]o specific grant of power . . . to refer questions of that nature to the popular vote . . . in the Baltimore City Charter." (emphasis added).

   The reasoning in Levering was acknowledged in Scull v. Montgomery Citizens League, 249 Md. 271, 239 A. 2d 92 (1968), where this Court recognized that by a county charter provision, the people may reserve the right of referendum on public local laws enacted by its local legislative [**798] body, created pursuant to Article XI-A of the Constitution.  Chief Judge Hammond, there writing for the Court, stated:
 
"Section 6 of Art. II of the [Montgomery County] Charter gave a right of referendum, something Art. XI-A does not require in a charter. The people reserved the right to vote on public local laws on specified matters and on '(3) Any other public local law or any part of any other public local law not included under subsections (1) and (2) above.'" 249 Md. at 279, 239 A. 2d at 96. 

   See also Harford County v. Board of Supervisors of Elections, 272 Md. 33, 321 A. 2d 151 (1974), where we noted that "[i]t is not uncommon for people to write into their basic charter a restriction upon the powers[***30] of their legislative body." 272 Md. at 39, 321 A. 2d at 154.

   Section 16-6 (a) of Article 33 provides "[t]he ballots shall contain a condensed statement in understandable language of every constitutional amendment or other question to be submitted to the vote of the people at any election. It shall be sufficient in any case to print the legislative title, [or] a brief summary of the contents or purpose of the proposed amendment or referendum unless the act proposing the constitutional amendment or other question specifically provides the title to be used." The subsection further provides, in pertinent part, that the Secretary of State "shall prepare and certify the form in which a constitutional amendment or question shall appear . . .," and that "[t]he county commissioners, county council, or treasurer of [*288] Baltimore City, as the case may be, shall prepare and certify to the boards [of election supervisors] the form in which local questions shall appear on the ballot . . ." (emphasis added).  The subsection additionally provides that "[i]n the event [that] the title of the bill, ordinance or resolution, as the case may be, is one hundred words[***31] or less, the title shall be sufficient.  In the event the title exceeds one hundred words, a summary of the title containing not in excess of one hundred words shall be prepared and certified [by the county commissioners, county council or treasurer of Baltimore City] to the boards." (emphasis added).

   Section 16-6 (b), as amended by Chapter 328 of the Laws of 1974, provides, in pertinent part, that "[l]ocal questions or referenda shall be designated by successive letters of the alphabet, rather than numerically.  The county council, county commissioners or the treasurer of the City of Baltimore shall designate the alphabetical order of local questions or referenda." n7

n7 The Title of Chapter 328 of the Laws of 1974, which amended Article 33 § 16-6 (b) reads: "For the purpose of requiring that the order of local questions or referenda be designated on ballots by letters of the alphabet rather than numerical." (emphasis added).

   Section 23-1 (a) of the Article, as it pertains to the certification of questions, [***32] provides in pertinent part, that . . . "[i]f questions of local concern are to be submitted for approval to the vote of the people of a county or a municipality the same shall be certified to the boards [pursuant to Section 16-6] within said period [on or before the fourth Monday in July] by the county commissioners, county councils or treasurer of the City of Baltimore, as the case may be, and shall be advertised as herein provided [by Section 8-5] in the case of nominees for county or city offices." (emphasis added).

   Section 8-5 (a) of Article 33, relating to the advertisement or publication of nominees provides that "[a]t the time of giving the notice of election required by § 2-10 [(a)] of this Article, each board shall cause to be published by one insertion in two [**799] or more newspapers published within each county, . . . the nominations to office which have been filed [*289] with or certified to them under the provisions of this article.  . . ."

   Section 2-10 (a), as amended by Chapter 190 of the Laws of 1974, provides that "[i]n the counties, each board shall give notice during the calendar week preceding any election of the time[***33] and place of the election by advertisements, . . . in at least two newspapers of general circulation published in the county . . . ." (emphasis added).

   Section 23-9 of Article 33, expressly applicable to those elections "at which laws are to be submitted to the voters under the provisions of Article XVI of the State Constitution," requires the publication in newspapers of general circulation of the text of such measures.

   Since county and local elections have been held to come within the purview of Article 33, and that Article has been held to cover "every aspect of the electoral processes in Maryland" and election procedures, on both a state-wide and local level, we think it clear -- assuming the validity of § 308 of Article III of the Anne Arundel County Charter -- that referenda questions, including the approval or rejection of legislation enacted by county councils, in charter counties, come within the embrace of the procedures specified in that Article. Even though the Article contains no express reference to such a referendum, such a conclusion emanates from a reading of §§ 16-6 (a), 23-1, 23-2 and §§ 23-3 through 23-10.

   In § 16-6 (a), mandating that ballots "contain[***34] a condensed statement in understandable language" of every question "to be submitted to the vote of the people at any election," the legislature clearly recognized that local officials, as distinguished from the Secretary of State, "shall prepare and certify" the form in which such local questions shall appear on the ballot. The section also significantly refers to "bill[s], ordinance[s] or resolution[s]," terms not customarily used in describing enactments of the General Assembly.  Whereas § 23-1 (b) and § 23-2 each expressly refers to "[q]uestions arising under Article XIA of the Constitution of Maryland" (pertaining to charters), and §§ 23-3 through 23-10 expressly refer to petitions filed pursuant [*290] to Article XVI of the Constitution, there is no such restriction in the language used in § 23-1 (a), where reference is freely made by the General Assembly to "questions of local concern . . . to be submitted for approval to the vote of the people of a county, [etc.,]" without in any way modifying the nature of those "questions of local concern." We think that by such delineation and the express language used, the General Assembly clearly undertook to separately[***35] identify those referenda, arising pursuant to Articles XI-A and XVI of the Constitution, from those arising upon "local questions," "questions of local concern" and "ordinances," and thereby clearly showed an intent, to bring within the embrace of the procedures specified in Article 33, the submission of such local questions as may be properly subject to a referendum.

   Contrary to the views expressed by the chancellor, we conclude that the "requirement of publication or other notice of the County's local laws to the electorate so that the electorate may know that there is to be a referendum and have a reasonable chance to find what it is about," is supplied by the provisions in §§ 23-1 (a), and 16-6 (a) of Article 33, and the interplay of those sections with § 8-5 (a), as the latter relates to the advertisement of "questions of local concern," as in the case of nominees for county offices. Though we disagree with the chancellor's ratio decidendi, we shall, upon reasons to be herein set forth, concur in the conclusion reached by the lower court when it declared the results of the referendum on "Question D" to be "a nullity and of no effect."

   [**800] The County Council purportedly[***36] acted pursuant to §§ 16-6 (a) and 23-1 (a), when it prepared the form and contents of the referendum question and certified it to the Supervisors; in accordance with § 16-6 (b) the Council designated the question alphabetically as "Question D;" the Supervisors accepted the question, as certified, as a ballot item on the voting machines, after deleting the words "THE AMENDMENTS TO THE BILL," as submitted with the Question.  The Supervisors then undertook to act pursuant to § 23-1 (a), as "in the case of nominees for county offices," as [*291] provided in §§ 8-5 (a) and 2-10 (a) when, during the calendar week preceding the election, they caused advertisements to be published in the four newspapers within the county.  Such advertisements however did no more than publish the "make-up" of the question, as certified by the Council, and as it was to appear on the voting machines as "Question D." It was conceded that at no time, nor in any manner, was either the text of ordinance No. 59-73, or the text of its 41 amendments, ever published. n8 (See Article 33, § 23-9, requiring the publication of the text of those enactments by the General Assembly brought to referendum under[***37] the provisions of Article XVI of the Constitution).  The critical issues however, as we see them, concern a compliance with the provisions of § 16-6 (a) as to the wordage of "Question D" and whether the advertisements, limited to the verbiage of the question, gratified the requirement of sufficient notice by publication to the electorate as contemplated by § 23-1 (a).

 n8 Assuming that the provisions in § 308 (a) of Article III of the Anne Arundel County Charter, whereby the people reserved to themselves the power of referendum, and the provisions of Article XVI, Sec. 1 (a) of the Constitution, wherein the people reserved to themselves the same power as to State legislative enactments, are analogous.

   Presupposing, without deciding, (a) that a comprehensive zoning ordinance, or a portion thereof, may be the proper subject of a petition for referendum, (b) that such a referendum may be limited to the amendments to such an ordinance, without recitation of the provisions in the ordinance to which the amendments [***38]apply, (c) that 41 separate amendments, affecting property in different locations, may be combined to form a "single question" on referendum, and (d) that a referendum may be submitted to the voters of the entire county though its subject-matter is limited to properties within one tax assessment district, we shall limit our decision to an appraisal of the wording of "Question D" as it was submitted to the voters on the ballot, and whether or not its publication, by advertisements, prior to the election, permitted, in a meaningful manner, an intelligent decision, by an average voter, when he exercised [*292] his choice, in voting either "FOR" or "AGAINST" "Question D."

   In its appraisal of compliance with the notice requirements contained in Article 33, this Court has clearly recognized the distinction between the effects of the failure to conform with such provisions when raised in pre-election litigation, as compared with the effect to be given those same provisions, when not strictly followed, and when challenged by litigation attacking the results of an election. In County Commissioners of Montgomery County v. Henderson, 122 Md. 533, 89 A. 858 (1914), a case involving[***39] a pre-election challenge to a special election to determine the question of a special levy and county bond issue for public improvements, this Court held that "[t]he provision of the statute, as to notice . . . is mandatory and not merely directory," that "[a]ll of the conditions prescribed should be strictly observed, because they are equally essential to the authority attempted to be conferred," and that "[t]he effect of statutory requirements in cases of this kind as to time of notice by publication . . . and the terms of such provisions must be strictly complied with . . ." 122 Md. at 537, 89 A. at 859-60. Finding that the publication of the proposed [**801] ballot question was not in accordance with the requirements of the statute and a fatal defect, it was held that an injunction had properly issued enjoining the appellants from holding the special election. In Dutton v. Tawes, supra, Chapter 739 of the Acts of 1957 (then codified as Article 33, § 170) provided that the text of a referred law be published by "at least . . . one insertion in two or more newspapers within the several counties of the state and in all the daily newspapers published in Baltimore City[***40] . . ." Overlooking the requirements of that section, employees of the office of the Secretary of State undertook to follow the provisions set forth in former § 208 of Article 33, as enacted by Chapter 335 of the Acts of 1941, and published the referred law (a compact with the State of Virginia relating to the Potomac River) but once, in one newspaper, the Baltimore Sun, having a general circulation throughout the state.  The text of a number of proposed constitutional amendments, also [*293] voted on in the same election in 1960, were published in 53 county newspapers and in three Baltimore City newspapers. In holding that statutes, giving direction as to the mode and manner of conducting an election, are generally construed as directory when considered after an election, unless the deviation had a vital influence upon the election, Judge Hammond, writing for the Court, stated:

   "The Maryland cases, like those elsewhere, have held that there is a clearly recognized difference between the effect given to modal provisions of the election laws before election and the effect of the same provisions after election. Election officials of course should do what the law tells[***41] them to do and, before election, a court will require that they do their duty. Yet if the election has been held before court action is sought and it is not shown that the failure of the officials to follow the law has interfered with the full and fair expression of the will of the voters, that expressed choice will not be disturbed by the Courts.  Wilkinson v. McGill, 192 Md. 387, 393; Graham v. Wellington, 121 Md. 656, 661; Seyboldt v. Mayor & C. C. of Mt. Ranier, 130 Md. 69, 73; Carr v. Town of Hyattsville, 115 Md. 545, 549-550. The latest statement of the rule in this Court was in Lexington Park Volunteer Fire Department, Inc. v. Robidoux, 218 Md. 195, 200: 'It is generally held that an election which has been honestly and fairly conducted will not be vitiated by mere failure to follow the statute precisely unless the result is shown to have been affected or the statute expressly states that such failure renders the election void.  After the election is held, statutes giving direction as to the mode and manner of conducting it are generally construed as directory, unless the deviation from the prescribed forms of the law had so vital an influence as probably [***42]  to have prevented a free and full expression of the popular will.  The courts reason that it would be unjustifiable to defeat the [*294]expressed will of the electorate if the irregularity did not frustrate or tend to prevent a free expression of the electors' intention or otherwise mislead them.'" (emphasis added) 225 Md. at 491-92, 171 A. 2d at 690-91.

   Since in Dutton the litigation instituted sought to enjoin the governor from proclaiming that the compact had been adopted by the electorate in the referendum, this Court, in a post-election review, held that the provisions in then § 170 of Article 33 were "directory," and "that the record shows there was substantial, if not full, achievement of the purpose of the statute to acquaint the electorate fully with the law involved, and nothing to show that the deviation from the prescribed mode of acquainting, misled the voters or prevented, frustrated or interfered with a free, full and intelligent expression of the popular will." 225 Md. at 493, 171 A. 2d at 691. In reaching this conclusion, the Court pointed out that wide-spread publicity [**802] had been given the compact question in both news articles and editorials, [***43]that numerous radio and television news broadcasts, including a purchased television program, had related to the proposed compact and that the official specimen ballot, which in fact contained a brief and accurate summary of the statute, had been published in 53 county newspapers and in three Baltimore City papers.

   See however Graf v. Hiser, 144 Md. 418, 125 A. 151 (1924) where, in a suit filed after an election, the results were set aside because "there was a serious defect in the notice which the act made a prerequisite to the election . . .," because there was "not a substantial compliance with that essential condition precedent . . ." and because the mistake "in the preparation of the notice, and in the reception and exclusion of votes, had a probably decisive influence upon the election." The deviation from the terms of the statute was there held to be "of such consequence as to fully justify the view that the election ought to be treated as a nullity." 144 Md. at 421, 125 A. at 152.

   The complaint here was filed by the property owners 32 [*295] days before the scheduled referendum, and the case was at issue before the election. Since the lower court, pursuant to our[***44] holdings in Tyler v. Secretary of State, supra, in continuing the case for trial to a post-election date, preserved the issues "as if heard and decided prior to the election," and adjudicated the matter as if tried prior to the election, we shall make our appraisal of compliance with the modal provisions in §§ 16-6 (a) and 23-1 (a) of Article 33 in the same context.

   Article 33, § 16-6 (a), in addition to stating that "[t]he ballots shall contain a condensed statement in understandable language of every constitutional amendment or other question to be submitted to the vote of the people at any election," further provides that "[i]t shall be sufficient in any case to print the legislative title, [or] a brief summary of the contents or purpose of the proposed amendment or referendum unless the act proposing the constitutional amendment or other question specifically provides the title to be used." Additionally, the section sets forth that: "In the event the title of the bill, ordinance or resolution, as the case may be, is one hundred words or less, the title shall be sufficient.  In the event the title exceeds one hundred words, a summary of the title containing not in excess[***45] of one hundred words shall be prepared and certified to the boards."

   In discussing "the sufficiency of the legend used on the ballot" in a referendum, our predecessors pointed out, in Lexington Park v. Robidoux, 218 Md. 195, 146 A. 2d 184 (1958), in interpreting the language in Code (1957) Article 33, § 94 (i) -- the forerunner of § 16-6 (a) -- that "it is sufficient to print on the ballot the legislative title or a brief summary of either the contents or purpose of the proposed amendment or referendum 'unless the act proposing the constitutional amendment or other question specifically provides the ballot title to be used.'" (emphasis added) 218 Md. at 199-200, 146 A. 2d at 186. Where a legislative title is used as the ballot question, the prescriptions of Article III, § 29 of the Constitution, concerning the sufficiency of the title, come into play and the title-ballot question must embrace one [*296] subject, fairly apprise the voters of the purpose of the act, not be misleading and not calculated to lead the public to believe that the proposed legislation is substantially different from that which would actually become law under the statute.  See Morris v. Governor[***46] , 263 Md. 20, 281 A. 2d 216 (1971); Allied American Mutual Fire Insurance Co. v. Commissioner of Motor Vehicles, 219 Md. 607, 614-15, 150 A. 2d 421, 426 (1959); Dinneen v. Rider, 152 Md. 343, 357, 136 A. 754, 759 (1927). Where however the ballot question used is not the legislative title but a brief summary of the contents or purpose of the proposed act, [**803] the standard by which the question's validity will be judged, as with a legislative title, is whether the question posed, accurately and in a non-misleading manner, apprises the voters of the true nature of the legislation upon which they are voting. See Morris v. Governor, supra, where the Court "using the tests of the sufficiency of legislative titles" found that the ballot titles prepared by the Secretary of State and not by the General Assembly, as to eight amendments to the Constitution, were adequate and not misleading.  263 Md. at 27, 281 A. 2d at 219.

   In two cases involving post-election challenges to referenda, where the ballot questions did not use the legislative titles, but undertook to put forth a brief summary of the contents and purposes of the respective legislation, this Court upheld the results[***47] of the referenda, finding that, although the exact titles of the bills had not been published, the questions contained concise statements concerning their nature and purpose, and that the electorate had been adequately advised, from the wording of the question, as to their elective choice.  See Lexington Park v. Robidoux, supra, (where "[t]he supervisors of election did not print the title of the act on the ballot but substituted the words 'Fire Tax Referendum', but otherwise followed the directions of the Act, . . .").  After pointing out that "the course followed in the preparation of the ballots was a substantial compliance with the statutory provisions . . ., that failure to follow strictly the prescribed directions did not affect the validity of the election," and that the case was being reviewed after [*297] the results of the election, Judge Hammond, writing for the Court, stated:
 
"The heart of the title was contained in these words: ' * * * relating to the levy of a special fire tax in St. Mary's County and providing for a referendum thereto'.  Printed on the ballot was the essence of the heart of the title, namely, 'Fire Tax Referendum' and the words for[***48] or against 'the Fire Tax'.  We think it is clear that the voters of the Eighth Election District of St. Mary's County knew what they were voting for or against and that the failure to follow strictly the direction of the act in the preparation of the ballot had no effect upon the fairness or the result of the election." 218 Md. at 201, 146 A. at 187.
 
See also Carr v. Mayor and City Council of Hyattsville, 115 Md. 545, 81 A. 8 (1911) (where the act directed that the ballots "should have printed on them 'For the Act to Improve the Streets' and 'Against the Act to Improve the Streets,'" but where the ballots actually read "'For the Road Bill' and 'Against the Road Bill'").  Our predecessors in Carr, also noting that the matter was being adjudicated after the referendum, pointed out that "[i]t is not alleged that the voters were deceived, misled or confused by the form of the ballot as actually prepared." 115 Md. at 548, 81 A. at 9. In concluding that "[t]he voters undoubtedly knew they were voting upon the question of approval or disapproval of the act" and that the "object which the legislature had in view had been gratified," Judge Burke, for the Court, reasoned: [***49] "The Legislature did not expressly declare that the use of the prescribed form of ballot was essential to the validity of the election, nor does it appear from any facts stated in the bill that the omission to use that form of ballot [suggested by the Legislature] in any way affected the actual merits of the election." 115 Md. at 551, 81 A. at 9-10.

   The County Council in this case patently made no attempt to certify, as the ballot question, the title of the basic zoning [*298] ordinance, or the titles of any of the separate 41 amendments.  Nor was any attempt made to summarize those titles by a statement "not in excess of one hundred words" as "Question D." In attempting to gratify the requirement in Article 33, § 16-6 (a) that the Question submitted be "a brief summary of the contents or purpose of the proposed . . . referendum," the proposition submitted to the voters asked them [**804] to vote "FOR" or "AGAINST" the "rezon[ing] of certain parcels . . . in the median strip, the west side of the southbound lane and the east side of the northbound lane of Route 3; and to rezone one parcel on the west side of Brockridge Road [in Laurel] . . . ; all parcels[***50] of which are in the Fourth Assessment District and which were rezoned by virtue of amendments to Bill No. 59-73." (emphasis added).  Although as originally submitted, "Question D" provided for the voters to choose to vote either "FOR THE AMENDMENTS TO THE BILL" or "AGAINST THE AMENDMENTS TO THE BILL," as the Question appeared on the voting machines, their choice was limited to a vote "FOR" or "AGAINST" "rezoning ."

   The general word "rezone," as used in the proposition, obviously had a psychological appeal to those who consider such term as connoting a detrimental change in the current and visible use of property.  Nowhere in "Question D" is there any indication of the nature of such "rezoning." As conceded by counsel for the appellants in argument, from the wording of "Question D" one is unable to tell whether such "rezoning" up-graded or down-graded the zoning uses.  As earlier pointed out, the respective 41 amendments adopted at least five distinct zoning classifications -- C2 (Commercial, office), C3 (General Commercial), C4 (Highway Commercial), W1-B (Industrial Development) and C1A (Neighborhood Commercial) (for the parcel located in Laurel).  In fact, none of the 41 amendments[***51] undertakes to "rezone" those tracts of land to which they apply.  While the zoning proposed by the original ordinance contemplated a "down-zoning" from existing commercial uses to classifications of R1 (Residential), RA (Residential Agricultural) and W1-B (Industrial Development), each of [*299] the amendments undertook basically to negate those proposed zoning changes and to continue in effect the zoning uses which the subject properties already enjoyed under former zoning ordinances and maps.

   "Question D" gave no indication of the location, along the 10-mile length of the median within Route 3, as to how many of the affected "certain parcels of land" (42 tracts) were within the median, or how many abutted the outside boundaries of the dual lanes of Route 3.  Only "one parcel" of land on the west side of Brockridge Road . . ." (in Laurel) was pinpointed.  No one reading the proposition could learn that only 41 of the 145 amendments, enacted to the ordinance, were encompassed within the Question, nor that amendments, creating industrial and commercial uses for a number of properties along both sides of Route 3, not petitioned to referendum, were not within the subject-matter [***52]the voters were called upon to decide.

   The use of the term "certain parcels," without delineating the location of the properties within the referendum, in the factual background of the case created an additional ambiguity, since, as we understand it, every amendment affecting parcels within the median -- except that of the J. F. Johnson Lumber Co. -- was included in the referendum.

   No voter, when confronted with "Question D," could know that there had been two amendments (Nos. 96 and 36) affecting the extensive, commercial, lumber-yard facilities of the J. F. Johnson Lumber Co. located within the median, each of which created for such facilities a C4 (Highway Commercial) classification, nor know that although amendment No. 96 was within the ambit of "Question D," amendment No. 36, not petitioned to referendum, had become law and that that property had been effectively zoned as C4, prior to the referendum.

    The County Executive's solicitation, addressed to each taxpayer within the County, exhorting a vote against "Question D," certainly obfuscated the issue. His "voter's card" suggested that the ballot question [**805] was limited solely to properties within the median strip[***53] on Route 3; that a "No" vote should be registered "in order to stop any further [*300] commercial development in the middle of this highway," and that to vote otherwise would allow "service stations, fast food stores and other strip commercial uses to locate in the middle of this Highway." Without doubt, each of the voters receiving this campaign literature from the chief executive officer of the County, had his attention directed to that portion of the median where "fatal accidents and serious injuries" had occurred.  Quite deceptively, his statement did not apprise such voters that the amendments brought to referendum did, in fact continue existing commercial uses within the full length of the median, and failed to acquaint them with the fact that the referendum question embraced properties abutting the dual lanes on Route 3, as well as one parcel, 10 miles distant.

   As we see it, "Question D," as it appeared on the voting machines, and as it was advertised, in calling upon a voter to make a choice either "FOR" or "AGAINST" the "rezoning" of "certain parcels" within the Fourth Assessment District, did not present a clear, unambiguous and understandable statement of the[***54] full and complete nature of the issues undertaken to be included in the proposition. n9

n9 Some voters may have wished to vote in favor of those zoning changes made by one or more of the 41 amendments and against the remainder; some voters, following the urging of the County Executive, may have wished to vote against those amendments affecting the parcels within the median; some voters may have been against amendment No. 73, permitting the continuation of a grocery store and printing shop, on the tract in Laurel, and in favor of a continuation of the zoning uses then in effect within and along Route 3 -- or vice versa.  A great number of combinations of voters' choices can be visualized as being within the ambit of "Question D," as the voters were presented with it and called upon to make a choice.

   Although the wordage used to frame "Question D" can surely be said to be "condensed," the summary designed did not set forth, "in understandable language," "the contents and purpose of the proposed" referendum with[***55] that clarity and objectivity required to permit an average voter, in a meaningful manner, to exercise an intelligent choice.  Thus, upon our analysis, we conclude that the provisions in Article 33, § 16-6 (a), concerning the "make-up" of "Question D," were not gratified; nor did the advertisements publicizing it comply with the obvious intent and purpose of § 23-1 (a).

   [*301] Courts in other jurisdictions which have passed upon ballot questions which did not fairly and accurately present a statement of the question to be decided, have reached similar results.

    The holding in Markus v. Trumbull County Board of Elections, 22 Ohio St. 2d 197, 259 N.E.2d 501 (1970) seems here to be particularly apposite.  In that case, the appellees filed an application for a zoning change requesting a zoning classification from "residential" to "business and commercial" for property owned by them in Trumbull County.  In opposition to this rezoning, certain of the appellants then obtained the required number of signatures to place the matter on referendum. Prior to the appellee's application, a portion of their property had been zoned "business and commercial," while the remainder was zoned [***56] "residential." Similar to the provisions in Article 33, § 16-6 (a), the Ohio Statute (R.C. 3505.06) provided that "[a] condensed text that will properly describe the question, issue, or amendment shall be used as prepared and certified * * * by the board for local questions or issues." The ballot question submitted to the board read as follows: "Shall the following described premises be amended from residential to business and commercial," and undertook to describe the entire property.

   The Ohio Supreme Court, in affirming the declaration by the trial court that the [**806] proposed ballot was "null and void," as "insufficient, ambiguous and misleading," stated:

   "The ballot described the entire property owned by the appellees and in no way indicated that part of the property was presently zoned for business and commercial use, and that the zone change was merely an increase in the size of the business and commercial zone.

   "In holding the condensed text on the ballot to be insufficient, ambiguous and misleading to the average citizen who might be affected thereby, the trial judge stated:

   "The ballot must be complete enough to convey an intelligent idea of the scope[***57] and [*302] import of the amendment.  It ought not to be clouded by undue detail as not to be readily understandable.  It ought to be free from any misleading tendency, whether of amplification, or omission.  It must in every particular be fair to the voter to the end that intelligent and enlightened judgment may be exercised by the ordinary person in deciding how to mark the ballot.

   'The ballot should be in proper form so that the voter may have at hand some means for making up his mind whether to approve or disapprove the issue.'

   "A ballot statement drawn pursuant to a referendum petition is crucial to the integrity of the constitutional safeguard of referendum. It is only from the ballot statement that the ultimate deciders of the question can arrive at an efficacious and intelligent expression of opinion.  The ballot must fairly and accurately present a statement of the question or issue to be decided in order to assure a free, intelligent and informative vote by the average citizen affected." (emphasis in original) 22 Ohio St. 2d at 202-03, 259 N.E.2d at 504.

   A similar view was expressed by the Supreme Judicial Court of Massachusetts in Sears v. Treasurer and Receiver [***58]  General, 327 Mass. 310, 98 N.E.2d 621 (1951), where, in discussing the requirement, in its constitution, that a question submitted to the electorate by the initiative process must set forth a "fair, concise summary" of the law to be adopted, stated:
 
 "[T]here must be a real 'summary.' A summary is an abridgment, abstract, compendium, or epitome.  The word carries with it the idea that, however much the subject matter may be condensed, the sum and substance of it must remain. No doubt details may be omitted or in many instances covered by broad generalizations, but mention must [*303] be made of at least the main features of the measure.  And the summary must be 'fair'; that is to say, it must not be partisan, colored, argumentative, or in any way one-sided, and it must be complete enough to serve its purpose of giving the voter . . . who is present in a polling booth a fair and intelligent conception of the main outlines of the measure.  It must do more than merely indicate the field of human or governmental activity within which the measure falls.  . . ." 327 Mass. at 324, 98 N.E.2d at 631.

   The view expressed in Sears, supra, that "[t]he voters [are entitled] [***59]to rely upon the statement in the ballot prepared and given to them" was followed in Mayor of Gloucester v. City Clerk of Gloucester, 327 Mass. 460, 464, 99 N.E.2d 452, 455 (1951) in holding that a referendum vote for establishing a form of government for the City of Gloucester was a nullity.

   In accord with these views are Troland v. City of Malden, 332 Mass. 351, 125 N.E.2d 134 (1955); Turner v. Barnhart, 83 N.M. 759, 497 P. 2d 970 (1972) and State Ex rel. Fleck v. Dalles City, 72 Ore. 337, 143 P. 1127 (1914).

   Particularly noteworthy here is the decision by the Court of Common Pleas of Ohio [**807] (for Cuyahoga County) in Russell v. Linton, 52 Ohio Op. 228, 115 N.E.2d 429 (1953), where a village council rezoned certain lands, including that of the plaintiff, for industrial uses.  A petition for referendum was rejected as defective.  Those who had unsuccessfully sought the referendum then filed a petition for initiative.  The proposed ordinance was to re-zone the area so classified as industrial and return it to the classification which existed prior to the council action.  In holding that the question might properly be certified for an initiative election, [***60] that court stated:

   "This now brings us to the consideration of the objections that the proposed ordinance is ambiguous and misleading and contains multiple subjects in its title and text.  The obvious conclusion [*304] would be, that if these handicaps existed in the ordinance, the voters could not intelligently determine upon what subject they were voting. A reading of the ordinance clearly indicates a plain intention to undo the act of the village council in rezoning certain lands and to place such lands back into a classification formerly controlling them.  Certainly the voters would know the issue presented: Vote 'Yes' to re-zone the area for single family residences: Vote 'No' to retain the zoning for manufacturing purposes.  It seems to be as simple as that." 52 Ohio Op. at 231, 115 N.E.2d at 432.

   The question submitted in Russell v. Linton, supra, clearly and explicitly designated the choice submitted to the voters, as contrasted to the issue here submitted to them by "Question D." In our case, "Question D," as framed, did not permit a voter to know whether the existing zoning on the properties, subject to the amendments, would be changed, or remain the same, [***61] nor did it, in any way, suggest the nature of any of the "rezoning." Compare Lexington Park v. Robidoux, supra.

   Notwithstanding the deficiencies we have found in our analysis of the composition of "Question D," and the shortcomings attending the notice thereof by its advertisement, the appellants, relying on the post-election decisions in Dutton v. Tawes, supra, and citing Morris v. Governor, supra and Lexington Park v. Robidoux, supra, contend that "pre-election publicity was so extensive that there can be no question that the electorate was sufficiently informed with respect to the issue raised by 'Question D.'" They cite testimony that the Office of Planning and Zoning publicized the notices of the hearings it conducted in 1973, that as many of the affected property owners as could be notified were advised of the contemplated changes in their zoning classifications and that these meetings had been "actively attended;" they refer to the testimony concerning the attendance at a number of meetings, conducted in June, July and August, 1973, when the County Council held public hearings on Bill No. 59-73; they additionally call attention to [*305] the publication [***62]of the "sample ballot" in the League of Women Voters' newspaper and the sheaf of newspaper clippings, produced through the County Publication Officer, purporting to set forth the publicity given in the press to the subject-matter of the comprehensive zoning ordinance and its amendments.  The trial court indicated that it was deciding the case as if it were being tried "[on] November 4, 1974, the day before the General Election," pursuant to the holdings in Tyler v. Secretary of State, 230 Md. 18, 185 A. 2d 385 (1962); it noted that although it had "admitted the County's exhibits with respect to the notoriety given to 'Question D', it will ignore those exhibits [in its decision]."

   Although we have reviewed this case in the same posture and context in which the trial court considered it, as a pre-election challenge to the validity of "Question D," and its publication by advertisement, and thus have been required to consider the requirements of Article 33, §§ 16-6 (a) and 23-1 (a) as mandatory, rather than directory, we have nonetheless reviewed the evidence offered by the County in support of its claim of the notoriety given the referendum proposition.

   [**808] As we see[***63] it, the attendance by property owners affected by the zoning ordinance, at three meetings conducted by the Office of Planning and Zoning, prior to July, 1973 -- at a time when the amendments were not even conceived -- can, in no way, be considered a substitute for the publication of the "contents and purpose" of the referendum. Nor do we see how attendance by interested parties at meetings of the County Council during July and August, 1973 -- 15 months before the election -- can constitute a substitution for the notice required to be given the electorate at-large of a ballot question to be voted upon in the 1974 General Election.

   Of the 53 newspaper clippings submitted, dating from September 21, 1972 to October 31, 1974, only four were published within the year 1974 -- two dated July 18, 1974 and another two on October 31, 1974.  It would similarly appear that news articles published during 1973 in connection with the proposed ordinance, the meetings thereon, the 145 amendments adopted by the Council, the [*306] Executive's veto of 87 of them and the Council's override of 57 of the vetoes, would not continue to have any informative viability in November, 1974, in apprising the[***64] voters of the nature of the question they were called to vote upon in "Question D." An Evening Sun account of October 31, 1974, devoting five-and-one-half columnar inches to "Question D," gave more space to a discussion of this litigation than it did in an attempt to explain the nature of the Question. n10 One of the news articles, published in the Evening Capital on July 18, 1974, stated that a "Yes" vote "would indicate the voter approves of the Council's action," whereas a "No" vote "indicates the voter approves of the Administration's action."

n10 A proffered exhibit of an article published in the Anne Arundel Times on October 31, 1974, quoted the Director of Planning and Zoning as stating that the property of one of the appellees, Jesse Scruggs and his wife, had in fact retained a C4 commercial zoning for their heating and fuel company property at Millersville, fronting on the west side of Route 3, when in fact the Scruggs' property, which had been proposed for an R1 classification, had been classified as C4 by amendment No. 68, which was included among the 41 amendments petitioned to referendum.

[***65]

   The handout, Issues and Candidates -- '74, distributed by the League of Women Voters, after setting forth "Question D" verbatim on page 15, undertook, in four columnar inches, a simplistic analysis of the Question.  It stated basically that if the Question passed "74 acres within the median strip will become commercial," although it pointed out that two or three such parcels "did not receive commercial zoning from the County Council." It further reported that "if the amendments are rejected, the median strip will be zoned R1 and there will not be an increase of Commercial or Industrial Park zoning along either side of Rt. 3." To the extent that the pamphlet was reasonably informative to those voters who "picked-up" a copy, it was certainly offset and counteracted by the solicitation mailed by the County Executive to every taxpayer in the County; it cannot be construed as substituted notice to the voters.

   Patently, such sparse, incomplete and generally outdated publicity, in no manner -- either in accuracy or intensity -- approaches the nature of the publicity found to have been [*307] given in Dutton v. Tawes, supra, where a fair and accurate summary of the statute, [***66] as the ballot question, had indeed been published in 53 county newspapers and in three Baltimore City publications, immediately prior to the conduct of the election. Additionally, our evaluation of this newspaper evidence submitted by the County, convinces us that it falls far short of being in any manner sufficient, in its factual discussions of "Question D" to adequately and informatively apprise the voting public of their elective choice, or the practical effect of a vote "FOR" or "AGAINST" "Question D."

   [**809] Even if we were to review this case as one where the litigation was instituted after the election, and thus consider the provisions in Article 33, §§ 16-6 (a) and 23-1 (a) as being merely directory, we still could not, based upon the nature of the pre-election publicity, uphold the validity of the referendum. We are convinced that the failure of the ballot question to present a clear, unambiguous and understandable statement of the full and complete nature of the issues included in "Question D," coupled with the advertisements, limited as they were to a verbatim statement of the Question, constituted a "deviation from the prescribed forms of the law [and] had so[***67] vital an influence as probably to have prevented a free and full expression of the popular will." Dutton v. Tawes, 225 Md. at 491, 171 A. 2d at 691; Tyler v. Secretary of State, 230 Md. at 22, 185 A. 2d at 387; see also Graf v. Hiser, 144 Md. at 421, 125 A. at 152.

   Under the facts here, we endorse the view expressed in Markus v. Trumbull County Board of Elections, supra, that the ballot statement of "Question D" was "crucial to the integrity of the constitutional safeguard of [the] referendum," as it applied to the notice required to be given the electorate, since it was only from its make-up "that the ultimate deciders of ["Question D" could] arrive at an efficacious and intelligent expression of [their] opinion." Applying that test, and the view there stated, that the voter must have "at hand some means for making up his mind whether to approve or disapprove [that] issue," we conclude that "Question D," both as it was stated on the voting [*308] machines, and as it was advertised prior to the election, was so inaccurate, ambiguous and obtuse, that an ordinary voter, of average intelligence, could not, in a meaningful and comprehending manner, have knowledgeably[***68] exercised his franchise when called upon to vote either "FOR" or "AGAINST" that question.

   It is for these reasons, that we concur with the chancellor's decision, that the results of the referendum on "Question D" be declared a "nullity and of no effect."

   Decree affirmed; costs to be paid by the appellant, cross-appellee, Anne Arundel County, Maryland.

DISSENTBY: LEVINE

DISSENT:  
Levine, J., dissenting:

   It is the opinion of the majority that the vote on Question No. D, referred to the voters of Anne Arundel County at the November 1974 general election, must "be declared a 'nullity and of no effect'" because the language of the question as it appears on the ballot failed to satisfy the requirements of the Election Code, specifically § 16-6 (a) of Maryland Code (1957, 1975 Cum. Supp.), Art. 33, pertaining to the form of the ballot title. n1 While I concur with the majority in finding Article 33 applicable to local questions petitioned to referendum by county voters, I cannot agree that the ballot title in question failed to satisfy the requirements of § 16-6 (a), and I therefore respectfully dissent.

n1 The majority, somewhat obliquely, indicates a failure to comply with § 23-1 (a), which pertains to the noticing of local questions, as well.  It appears, however, to be the position of the majority that had the ballot title satisfied the requirements of § 16-6 (a), notice of the election by publication of the proper ballot title would have satisfied the requirements of § 23-1 (a). Since I find the ballot title to be in compliance with § 16-6 (a), I therefore conclude that publication of that ballot title satisfied the notice requirements of § 23-1 (a).

[***69]

   Section 16-6 (a) provides generally that in the case of a referendum, "[t]he ballots shall contain a condensed statement in understandable language of every constitutional amendment or other question to be submitted to the vote of the people at any election." It is further stated [*309] in § 16-6 (a), in prescribing the proper form for questions referred to the voters, that "[i]t [**810]shall be sufficient in any case to print the legislative title, a brief summary of the contents or purpose of the proposed amendment or referendum . . . ." In the instant case the legislative title was not employed in formulating the ballot title, but instead what appeared on the ballot was "a brief summary of the contents or purpose" which the majority finds wanting.

   Because § 16-6 (a) permits the use of the legislative title, in assessing the sufficiency of a summary of the purpose or contents of the question constituting the ballot title, the test for sufficiency of legislative titles may be used. Morris v. Governor, 263 Md. 20, 27, 281 A. 2d 216 (1971). Thus, if the summary of the contents or purpose of the question meets the test for sufficiency of a legislative title, the[***70] requirements of § 16-6 (a) are satisfied.

   Similar purposes are served by a ballot title and by a legislative title. The purpose of each is to assure that the public is fairly advised of the nature of pending legislation.  Neuenschwander v. Wash. San. Com., 187 Md. 67, 79, 48 A. 2d 593 (1946); State v. Norris, 70 Md. 91, 95-96, 16 A. 445 (1889). To fulfill that purpose it is not necessary that the title give an abstract of the act, but only that it fairly indicate the subject of the legislation.  Dutton v. Tawes, 225 Md. 484, 499, 171 A. 2d 688, appeal dismissed, 368 U.S. 345 (1961); Pressman v. State Tax Commission, 204 Md. 78, 92, 102 A. 2d 821 (1954); Painter v. Mattfeldt, 119 Md. 466, 474, 87 A. 413 (1913).

   Referendum Question No. D, as it appeared on the ballot, fairly indicated the subject matter of the question -- the rezoning of certain properties along Route 3.  The question was stated as follows:

   "To rezone certain parcels of land in the median strip, the west side of the southbound lane and the east side of the northbound lane of Route 3; and to rezone one parcel of land on the west side of Brockbridge Road near Ellen Street; all parcels of[***71] which are in the Fourth Assessment District and [*310] which were rezoned by virtue of amendments to Bill No. 59-73."
 
The problems the majority finds with the ballot title are basically two: the failure of the ballot title to give the precise location of the properties to be rezoned and the failure to specify the nature of the rezoning as to each.

   First, as to the failure of the ballot title to give the precise location of the properties in question, it seems clear that the wording of the question was both accurate and the best statement of location possible under the circumstances.  As the majority itself observes at note 2, in criticizing the referendum petition which gave the complete location of each of the properties together with its present and proposed zoning, the text of the petition was necessarily such that it could be read only with "the assistance of a magnifying glass." Surely the majority cannot then contend that the ballot was deficient in failing to likewise include metes and bounds descriptions and details of zoning.

   Secondly, and perhaps most ardently, the majority urges that the ballot title was inadequate in failing to specify whether the "rezoning" [***72] was "up-zoning" or "down-zoning." While it is true that in this respect the ballot title could have been more specific, this level of generality is insufficient grounds for voiding the election. It has been observed that "[s]o long as the attention of the electorate is reasonably drawn to the issue involved, claims of generalities will not be honored." C. Antieau, Municipal Corporation Law § 17.14 at 558 (1974); see Concrete, Inc. v. Rheaume Builders, 101 N. H. 59, 132 A. 2d 133, 135 (1957); McDonald v. Van Winkle, 136 Ore. 706, 299 P. 1015, 1017 (1931); Martin v. Hart, 296 Ill. 149, 129 N. E. 693, 695 (1920). To state that the purpose of the amendments was to rezone the parcels in question was, as the majority apparently concedes, accurate.  The comprehensive zoning ordinance gave these parcels residential [**811] zoning; the amendments petitioned to referendum had the effect of rezoning the properties by placing them in various commercial and industrial categories.  Furthermore, specific reference is made to the ordinance in question, Bill No. 59-73.

   [*311] It is too much to ask, as the majority seems to do, that a ballot title alone present enough information[***73] that a voter, confronted for the first time with the question in the voting booth, be able to render a truly informed decision.  Yet the majority, citing an Ohio case, Markus v. Trumbull County Board of Elections, 22 Ohio St. 2d 197, 259 N.E.2d 501, 504 (1970), holds that the descriptive title of a question appearing on the ballot must be in such form "'that the voter may have at hand some means for making up his mind whether to approve or disapprove the issue.'" It is not possible, nor is it necessarily desirable, that all aspects and nuances of a question be discussed in the ballot title.  While the question of sufficiency of the summary of the contents and purpose of referred legislation on the ballot is necessarily a matter of degree, it is nonetheless certain that considerable reliance must be placed on outside sources of publicity to fill in the details.

   Here there was evidence on the record of extensive publicity given the issue of the Route 3 rezoning. In fact, the extent of the pre-election publicity surrounding Question No. D was a sufficient supplement to the language of the ballot title to assure that the election would be a full and fair expression of the will of[***74] the voters. See Dutton v. Tawes, supra, 225 Md. at 493. Three fully noticed public hearings were held on the measure by the Planning and Zoning Commission and eight by the County Council after submission of the comprehensive plan.  It is not necessary to detail the very extensive extra-governmental publicity given to the question, including numerous newspaper articles, some of which contained the full text of the amendments, and the sample ballots distributed by the League of Women Voters. Suffice it to say that an officer of the Planning and Zoning Commission of Anne Arundel County testified that the Route 3 rezoning received by far the greatest publicity of any activity of the County Council.

   The majority dismisses the effect of the pre-election publicity given this question by citing the fact that this action was commenced before the election. The principle referred to is that stated in Dutton v. Tawes, supra, 225 Md. [*312]at 495, to the effect "that when an election has been held and it is not shown that the failure of election officials to hew strictly to the statutory line has prevented a full and fair expression of the will of the voters the Courts will not[***75] disturb the result." In a dictum relied on by the majority here, the Court in Tyler v. Secretary of State, 230 Md. 18, 22, 185 A. 2d 385 (1962), indicated that when an action is filed prior to the election, the court may permit the election to take place, and then later try the issues in the posture of a pre-election challenge.

   First, the majority misconstrues the use which appellants make of the pre-election publicity. The principle stated in Dutton, that an election will not be declared invalid where, because of the surrounding circumstances, the result was an intelligent expression of the popular will, is directly applicable only where there has first been found a deviation from statutory election standards.  Here the question is not what the effect of a deviation shall be, but rather the question is whether the ballot title in fact deviated from the requirements of § 16-6 (a).  The argument proffered by appellants is simply that in assessing the sufficiency of the ballot title under § 16-6 (a), the wording of the question must be viewed in light of the surrounding circumstances.  As discussed above, reliance must necessarily be placed in an election on the surrounding[***76] publicity to fully apprise the voters of the nature and purpose of a question.

   [**812] Moreover, I have serious reservations about the efficacy of the procedure indicated in Tyler.  While it may well be that the distinction drawn in Dutton between the effect of election irregularities challenged before and those challenged after an election is a legitimate one, to stay a challenge until after the election is held and then treat the action as a pre-election challenge is inconsistent with that distinction.  The rationale for the rule of Dutton is that "it would be unjustifiable to defeat the expressed will of the electorate if the irregularity did not frustrate or tend to prevent a free expression of the electors' intention . . . ." Lexington Park v. Robidoux, 218 Md. 195, 200, 146 A. 2d 184 (1958); Carr v. Hyattsville, 115 Md. 545, 549, 81 A. 8 (1911). It [*313] is equally unjustifiable, when a challenge is presented before an election, to permit the election to take place, and then invalidate the election because of an irregularity that did not affect the result.  In either case the result is the frustration of the expression of the popular will. 

   There[***77] can be little doubt that here the disapproval of the amendments referred to the voters of Anne Arundel County represented the full and fair expression of the will of the electorate. The measure was defeated by a vote of 36,656 to 11,314, approximately a three-to-one margin.  Furthermore, the public record of the results of the November 1974 election shows that more people voted on Question No. D in Anne Arundel County than voted for the candidates for Governor of the State.  This Court should be most reluctant to assume that the voters of Anne Arundel County, especially in view of the publicity surrounding the vote on Question No. D, did not know what they were voting for or against.  Morris v. Governor, supra, 263 Md. at 27. I would hold, therefore, that the election is not void for failure of the ballot title to comply with § 16-6 (a) of Article 33. 

FINANCE COMPANY OF AMERICA, Assignee of Crest InvestmentTrust, Inc. v. UNITED STATES FIDELITY AND GUARANTY COMPANY 
No. 100, September Term, 1975
 
Court of Appeals of Maryland
 
277 Md. 177; 353 A.2d 249; 1976 Md. LEXIS 960; 19 U.C.C.Rep. Serv. (Callaghan) 267

 March  3, 1976, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J., pursuant to certiorari to Court of Special Appeals.

DISPOSITION: Judgment affirmed, costs to be paid by appellant. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant secured creditor challenged the order of the Circuit Court for Anne Arundel County (Maryland) granting summary judgment in favor of appellee surety's subrogation claim.

OVERVIEW:  Appellant secured creditor had a security interest in the accounts receivable of construction contractor. When the contractor defaulted on a municipal contract, appellee surety, who had executed payment and performance bonds on contractor's behalf, paid for completion of the work and claimed the funds due the contractor under the contract. The court held that the surety's equitable subrogation rights were not subject to the filing requirements of the Uniform Commercial Code, which protects security interests under contract. The creditor's interest was not prior in time, since the surety's interest related back to the date of the contract. Since the funds owed their existence directly to the completion of the contract by the surety, it was equitable in these circumstances that the surety be allowed to obtain the funds in partial recovery of its performance expenses.

OUTCOME:  The court affirmed summary judgment awarding the retained funds to the surety.

CORE TERMS:  surety, subrogation, security interest, perfected security interest, contract rights, contractor, account debtor, default, accounts receivable, completion, financing statement, summary judgment, assignee, performance bond, Commercial Law, equitable, perfected, notified, construction contract, secured transactions, right of subrogation, right to payment, secured party, obligee, binding, defaulted, assignor, owed, personal property, contract right

CORE CONCEPTS -  

Insurance Law: Contracts & Claims: Subrogation
Subrogation is a long-standing equitable doctrine in Maryland whereby one who is secondarily liable for a debt, and has paid it, stands in the place of the creditor and is entitled to the benefit of all the securities and remedies which could have been resorted to for the payment of the debt.

Insurance Law: Contracts & Claims: Subrogation
There are three separate categories of subrogation in Maryland. Legal subrogation (as distinguished from conventional and statutory subrogation) arises by operation of law when there is a debt or obligation owed by one person which another person, who is neither a volunteer nor an intermeddler, pays or discharges under such circumstances as in equity entitles him to reimbursement.

Insurance Law: Contracts & Claims: Subrogation
The general rule with respect to the right of the surety of a building or construction contractor, who completes the contract upon the contractor's default, to monies in the hands of the contractee-obligee, earned by the contractor before default, is that upon completion of the contract the surety is entitled to be subrogated to the rights which the contractee-obligee had to, or could assert against, such funds upon the contractor's default, to the extent necessary to reimburse himself for the outlay made to complete the contract.

Commercial Law (UCC): Secured Transactions (Article 9): Security Agreements
Insurance Law: Contracts & Claims: Subrogation
The right of subrogation does not depend on contract, nor is it intended to have effect as a security interest. The Uniform Commercial Code § 1-201(37) defines "security interest" as an interest in personal property or fixtures which secures payment or performance of an obligation including any interest of a buyer of accounts or contract rights. A surety is secured by the opportunity to complete the contract and apply any available funds to its costs, not by an interest in personal property or fixtures. Neither is the surety a buyer of accounts or contract rights.

Commercial Law (UCC): Secured Transactions (Article 9): Filing
Insurance Law: Contracts & Claims: Subrogation
The overwhelming weight of case authority also supports the conclusion that a surety's subrogation rights exist independently of Uniform Commercial Code Title 9 filing.

Commercial Law (UCC): Secured Transactions (Article 9): Attachment
See Md. Code Ann., Com. Law § 9-106.

Commercial Law (UCC): Secured Transactions (Article 9): Perfection
See Md. Code Ann., Com. Law § 9-303(1).

Commercial Law (UCC): Secured Transactions (Article 9): Attachment
See Md. Code Ann., Com. Law § 9-204.

Commercial Law (UCC): Secured Transactions (Article 9): Attachment
See Md. Code Ann., Com. Law § 9-318(1)(a) and (b).
 
Civil Procedure: Summary Judgment: Supporting Papers & Affidavits
Md. R. Civ. P. 610 b, concerning summary judgment affidavits, states that copies of all material papers referred to in an affidavit shall be attached thereto or filed therewith or their absence satisfactorily explained.

COUNSEL: Argued and reargued by Sidney Kaplan, with whom were [***5] Irving Bowers and Arthur Guy Kaplan on the brief, for appellant.

   Argued and reargued by William F. Mosner for appellee.

JUDGES: Murphy, C. J., and Smith, Levine, Eldridge and O'Donnell, JJ., and reargued before Murphy, C. J., and Smith, Levine, Eldridge and O'Donnell, JJ., and Charles E. Orth, Jr., Chief Judge of the Court of Special Appeals and Thomas Hunter Lowe, Associate Judge of the Court of Special Appeals, specially assigned.  Murphy, C. J., delivered the opinion of the Court.

OPINIONBY: MURPHY

OPINION: [*179] [**250] Mega Marine Engineering Service Co. (Mega) entered into a contract for shore erosion work with the Maryland Department of Natural Resources (the Department), dated January 17, 1973, for the sum of $22,780; as a statutory condition precedent to the award of the contract, Mega was required to provide payment and performance bonds in accordance with Maryland Code (1974) Real Property Article, § 9-112. n1 The United States Fidelity [**251] and Guaranty Company (the surety) executed the required bonds on Mega's behalf, which were dated February 1, 1973.

n1 This section provides that before any contract exceeding $5,000 for any public work is awarded, the contractor shall furnish payment and performance bonds "which shall become binding upon the award of the contract."

[***6]

   Mega subsequently defaulted on its contract with the Department.  On June 21, 1973, the Department filed a Bill of Interpleader in the Circuit Court for Anne Arundel County; it averred that $6,708.76, "due and owing" from the [*180] Department to Mega upon completion of the contract, had been claimed both by the surety required to fulfill its bonded obligations upon Mega's default, and by Crest Investment Trust, Inc. (Crest), a creditor of Mega holding a security interest in its accounts receivable and contract rights pursuant to the provisions of Title 9 (Secured Transactions) of the Maryland Uniform Commercial Code (the UCC), Maryland Code (1975) Commercial Law Article.

   Prior to filing the interpleader action, the Department had been notified of Crest's claim by letter dated May 7, 1973 which instructed it, as "account debtor" under § 9-502 of the UCC, to make payment to Crest of all monies due Mega under the contract.  The surety had notified the Department by letter dated May 10, 1973 -- the same day it learned of Mega's default -- that in view of its obligation under the payment and performance bonds, it claimed all funds due Mega pursuant to "the surety's equitable rights[***7] of subrogation."

   The court designated the surety as plaintiff, and Crest as defendant, in the interpleader proceeding and directed that the parties interplead to settle the dispute between them.  Thereafter, the surety filed a bill of complaint alleging that on May 10, 1973, the Department had called upon it "to complete the job under the performance bond and to satisfy labor and matorial claims under the . . . [payment bond]"; and that in fulfillment of its obligations, the surety had paid $5,775.22 upon its payment bond and $10,439.97 upon its performance bond, the latter representing the excess amount over the original contract with Mega that the Department was required to pay to complete the work.  The surety moved for summary judgment, asserting that it was entitled to the $6,708.76 which the Department "was holding but never paid to Mega . . . on the basis that the surety, having paid for the completion of the contract, was entitled to receive as partial reimbursement all sums owed by . . . [the Department] to . . . [Mega]." Answering the surety's bill, Crest alleged that it was a secured party having a perfected security interest in the funds that the Department owed [***8]to Mega, and that its interest was superior to that of [*181] the surety. In its affidavit in opposition to the surety's motion for summary judgment, Crest asserted that it had loaned $14,400 to Mega on November 28, 1972; that as security for the loan, Mega had executed a security agreement and financing statement covering all its accounts receivable and "rights to payment under contracts of any nature whatsoever"; that the financing statement was recorded at the office of the Clerk of the Circuit Court for Anne Arundel County on November 30, 1972 and at the State Department of Assessments and Taxation on December 18, 1972, pursuant to § 9-401 of the UCC; and that Mega had defaulted on its loan obligations and owed Crest $10,625 which was past due.

   At the hearing below on the surety's motion for summary judgment, Crest maintained that the "whole point" of the case was that since it was a prior creditor with a perfected security interest in Mega's accounts receivable as of December 18, 1972, and in the proceeds of the contract with the Department as of January 17, 1973, its interest was superior to the surety's equitable subrogation claim.  The court (Childs, J.) granted the[***9] surety's motion for summary judgment; it held that Title 9 of the UCC applied only to security interests created by contract, that the doctrine of subrogation was not founded upon contract, but was equitable in nature, that the UCC excluded the doctrine of equitable subrogation [**252] from its operation, and that the surety's equitable claim to the funds was superior to Crest's perfected security interest.

   Crest's assignee, the Finance Company of America (the appellant) appealed to the Court of Special Appeals.  We granted certiorari prior to argument in that court.  Code (1974) Courts and Judicial Proceedings Article, § 12-203.

   (1)

   Appellant contends that because the surety failed to perfect a security interest in Mega's accounts receivable or contract rights in accordance with the requirements of the [*182] UCC, n2 its equitable right of subrogation is necessarily subordinate to Crest's perfected security interest. n3 We cannot agree.

 n2 Section 9-302 states that a financing statement must be filed to perfect all security interests except those noted therein.

n3 The surety's basis for relief throughout these proceedings has been solely that of subrogation. Therefore, we need not decide whether a surety who claims priority to funds after default under an assignment of accounts receivable (contained in the application for a performance bond) must comply with the UCC filing requirements.

[***10]

   Subrogation is a long-standing equitable doctrine in Maryland whereby one who is secondarily liable for a debt, and has paid it, stands in the place of the creditor (in this case, the satisfied obligee) and is entitled to the benefit of all the securities and remedies which could have been resorted to for the payment of the debt.  Blair v. Baker, 196 Md. 242, 76 A. 2d 129 (1950); Embrey v. Embrey, 163 Md. 162, 161 A. 153 (1932); Poe v. Philadelphia Casualty Co., 118 Md. 347, 84 A. 476 (1912). The doctrine is recognized and enforced in both law and equity actions, Gov't Employees Ins. v. Taylor, 270 Md. 11, 310 A. 2d 49 (1973); it arises out of the operation of law and does not depend on contract. Schnader, Inc. v. Cole Build. Co., 236 Md. 17, 202 A. 2d 326 (1964); Maryland Trust Co. v. Poffenberger, 156 Md. 200, 144 A. 249, 62 A.L.R. 546 (1929); Orem v. Wrightson, 51 Md. 34 (1879).

   There are three separate categories of subrogation in Maryland.  Legal subrogation (as distinguished from conventional and statutory subrogation) arises by operation of law when there is a debt or obligation owed by one person which another person, who is neither a volunteer[***11] nor an intermeddler, pays or discharges under such circumstances as in equity entitles him to reimbursement.  Maryland Title Co. v. Kosisky, 245 Md. 13, 225 A. 2d 47 (1966).

   The general rule with respect to the right of the surety of a building or construction contractor, who completes the contract upon the contractor's default, to monies in the hands of the contractee-obligee, earned by the contractor before default, is that upon completion of the contract the surety is entitled to be subrogated to the rights which the contractee-obligee had to, or could assert against, such funds [*183] upon the contractor's default, to the extent necessary to reimburse himself for the outlay made to complete the contract.  17 Am. Jur. 2d Contractors' Bonds §§ 42 and 107 (1964). n4 The surety, in a sense, is "secured" by its right of subrogation, which relates back to the issuance of the bond to defeat intervening creditors.  See Henningsen v. United States Fid. & Guar. Co., 208 U.S. 404, 28 S. Ct. 389, 52 L. Ed. 547 (1908); Prairie State Nat. Bank v. United States, 164 U.S. 227, 17 S. Ct. 142, 41 L. Ed. 412 (1896); Industrial Bank of Washington v. United States, 424 [***12]F. 2d 932 (D.C. Cir. 1970); Western Casualty [**253] and Surety Co. v. Brooks, 362 F. 2d 486 (4th Cir. 1966); Gray v. Travelers Indemnity Co., 280 F.2d 549 (9th Cir. 1960); Massachusetts Bonding & Ins. Co. v. Fago Construction Corp., 82 F. Supp. 619 (D. Md. 1949); Canter v. Schlager, 358 Mass. 789, 267 N.E.2d 492 (1971).

n4 It has been held that the surety, upon completing the contract, also stands in the place of the defaulting contractor, with respect to receivables due the contractor, and in the place of laborers and materialmen whom the surety has paid.  National Shawmut Bk. of Boston v. New Amsterdam Cas. Co., 411 F. 2d 843 (1st Cir. 1969).

   That the surety need not file a financing statement under § 9-302 of the UCC to protect its subrogation rights is clear.  Section 1-103 of the UCC provides that "[u]nless displaced by the particular provisions of . . . [the UCC], the principles of law and equity . . . shall supplement its provisions . . . ." Nothing in the provisions of[***13] Title 9 regarding secured transactions expressly or implicitly refutes the application of subrogation; in fact, § 9-102 implicitly recognizes the continued vitality of the doctrine.  That section, entitled "Policy and scope of title," refers to security interests created by contract.  The Official Comment states in part:

   "The purpose of this section is to bring all consensual security interests in personal property and fixtures . . . under this Title . . . .

   ". . . [T]he principal test whether a transaction comes under this Title is: Is the transaction intended to have effect as security?  . . ."
 
As heretofore indicated, the right of subrogation does not depend on contract, nor is it intended to have effect as a [*184] security interest. Section 1-201 (37) of the UCC defines "security interest" as "an interest in personal property or fixtures which secures payment or performance of an obligation . . . [including] any interest of a buyer of accounts . . . or contract rights . . . ." Plainly, the surety is secured by the opportunity to complete the contract and apply any available funds to its costs, not by an interest in personal property or fixtures.  Neither[***14] is the surety a buyer of accounts or contract rights. See § 9-106; National Shawmut Bk. of Boston v. New Amsterdam Cas. Co., 411 F. 2d 843 (1st Cir. 1969).

   That it was not the intent of the UCC to impair the surety's equitable right of subrogation, or to make it subject to the filing provisions of Title 9, is similarly manifest from the Code's history.  Proposed § 9-312 (7) of the 1952 Official Draft would have provided that "[a] security interest which secures an obligation to reimburse a surety . . . secondarily obligated to complete performance is subordinate" to a later lender.  The draftsmen deleted the section in 1953, explaining that it changed settled law under which "the surety's rights come first as to the funds owing by the owner . . . ." See Uniform Laws Annotated, Uniform Commercial Code, Official Draft, Text and Comments, at 773, 777 (1952); Uniform Laws Annotated, Uniform Commercial Code, Changes in Text and Comments, at 25-26 (1953).  Since no draft of the UCC has ever contained an express filing requirement for sureties, and since subrogation rights are not "security interests" within the meaning of Title 9, this rejection of even a partial preemption[***15] of subrogation rights is indeed cogent evidence that the filing requirements were not intended to impair the rights of subrogation. See National Shawmut Bk. of Boston v. New Amsterdam Cas. Co., supra, 411 F. 2d at 846; Canter v. Schlager, supra, 267 N.E.2d at 495; White and Summers, Uniform Commercial Code, § 22-5 (1972); Coogan et al., The Outer Fringes of Article 9, 79 Harv. L. Rev. 229, 230 (1965).

   Finally, mindful of the Code's policy to make the law uniform among the various jurisdictions (§ 1-102 (2) (c)), we note that the overwhelming weight of case authority also [*185] supports the conclusion that a surety's subrogation rights exist independently of Title 9 filing.  See, e.g., In re J. V. Gleason Co., 452 F. 2d 1219, 1221-24 (8th Cir. 1971); National Shawmut Bk. v. New Amsterdam Cas. Co., supra; McAtee v. United States Fidelity and Guaranty Co. , 401 F. Supp. 11 (N.D. Fla. 1975); [**254] United States Fidelity & Guaranty Co. v. First State Bank of Salina, 208 Kan. 738, 494 P. 2d 1149 (1972); National Surety Corp. v. State Nat. Bank of Frankfort, 454 S.W.2d 354 (Ky. 1970); Canter v. Schlager, supra; Mid-Continent Casualty Co. [***16]  v. First National Bank & Trust Co., 531 P. 2d 1370 (Okla. 1975); Jacobs v. Northeastern Corp., 416 Pa. 417, 206 A. 2d 49, 11 A.L.R.3d 1220 (1965); First State Bank v. Reorganized School Dist., R-3, Bunker, 495 S.W.2d 471 (Mo. App. 1973); Stevelee Factors, Inc. v. State, 136 N. J. Supra. 461, 346 A. 2d 624 (1975); Aetna Casualty & Surety Co. v. Perrotta, 62 Misc. 2d 252, 308 N.Y.S.2d 613 (Sup. Ct. 1970).

   (2)

   Since subrogation is an equitable doctrine, it will not be applied in circumstances where it would be inequitable to do so.  Maryland Trust Co. v. Poffenberger, supra; Orem v. Wrightson, supra. Its application here depends upon the rights of the contending parties in the contract and the retained fund itself.

   Although Crest claimed it had a prior perfected security interest in Mega's contract rights (including right to payment), in actuality it had something less.  While the security agreement between Mega and Crest covered accounts receivable and "rights to payment under contracts of any nature whatever," n5 Crest's security interest did not [*186] become perfected until, inter alia, it "attached." n6 Crest's security interest did not[***17] attach until Mega had rights in the collateral, which in the case of accounts was when the account came into existence after performance, and in the case of contract rights when the contract had been made. n7 Thus, Crest did not have a perfected security interest in Mega's accounts until performance had been rendered under its contract with the Department; nor did Crest have a perfected security interest in Mega's contract rights with the Department until the contract was executed on January 17.

n5 Section 9-106 of the UCC states in part:

   "'Account' means any right to payment for goods sold or leased or for services rendered which is not evidenced by an instrument or chattel paper.
 
   "'Contract right' means any right to payment under a contract not yet earned by performance and not evidenced by an instrument or chattel paper."
n6 Section 9-303 states in part:

   "(1) A security interest is perfected when it has attached and when all of the applicable steps required for perfection have been taken.  . . ."
n7 Section 9-204 states in part:

   "(1) A security interest cannot attach until . . . the debtor has rights in the collateral.  . . .

   (2) For the purposes of this section the debtor has no rights"

   * * *

   "(c) In a contract right until the contract has been made;

   (d) In an account until it comes into existence."

[***18]

   As previously stated, the surety's subrogation rights attached at the time the contract of suretyship was entered into on February 1.  In view of the provisions of § 9-112 of the Real Property Article, supra, n. 1, making the surety's obligation binding as of the date of the contract (January 17), its subrogation rights necessarily related back to that date.  Consequently, the surety's right of subrogation in this case conflicts with a simultaneously perfected security interest in contract rights, not a prior perfected security interest as contended by Crest.

   That Mega defaulted on its contract with the Department is of controlling significance in determining the equities of the parties in this case.  As assignee of Mega's contract rights and accounts receivable, Crest was subject to any defense or claim arising from the contract. n8 That the Department [*187][**255] would have held Mega liable for its default, but for the subsequent completion of the contract by the surety, is entirely clear.  Since the amount expended by the surety to complete the contract was greater than the fund in the Department's hands, it is plain that in the absence of the surety there[***19] would have been no fund for the assignee Crest to obtain.

n8 Section 9-318 (1) of the UCC states:

   "(1) Unless an account debtor has made an enforceable agreement not to assert defenses or claims arising out of a sale as provided in § 9-206 the rights of an assignee are subject to

   (a) All the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom; and

   (b) Any other defense or claim of the account debtor against the assignor which accrues before the account debtor receives notification of the assignment."
 
The Official Comment states in part:

   "1. Subsection (1) makes no substantial change in prior law.  An assignee has traditionally been subject to defenses or set-offs existing before an account debtor is notified of the assignment.  When the account debtor's defenses on an assigned account, chattel paper or a contract right arise from the contract between him and the assignor it makes no difference whether the breach giving rise to the defense occurs before or after the account debtor is notified of the assignment (subsection (1)(a)).  . . ."
 
Since a defense of the Department arose from the contract between it, as account debtor, and the assignor (Mega), whether notice of the actual assignment to Crest of the contract right and account was received before or after Mega's breach is irrelevant.  As the comment implies, an assignee under Maryland law has traditionally been subject to defenses or setoffs existing before an account debtor is notified of the actual assignment.  Assignments are equitable in nature and subject to equitable defenses.  Md. Coop. Milk Producers v. Bell, 206 Md. 168, 110 A. 2d 661 (1955); Michigan Fire and Marine Ins. Co. v. Genie Craft Corp., 195 F. Supp. 222 (D. Md. 1961). We observe that notification of the actual assignment (not merely of the security interest) was not received by the Department until after Mega had defaulted on its contract.

[***20]

   Since the moneys held by the Department owe their existence directly to the completion of the contract by the surety, it is equitable in the circumstances of this case that the surety be allowed to obtain it in partial recovery of its performance expenses.  In so concluding, we observe that it is the well-settled rule that the surety, who by subrogation takes all rights of the satisfied obligee, is entitled in similar circumstances to the entire fund.  See the exhaustive list of [*188] cases in National Shawmut Bank, supra, and 17 Am. Jur. 2d Contractors' Bonds §§ 42, 107, 111 (1964).

   (3)

   Maryland Rule 610 b, which concerns summary judgment affidavits, states in part that "copies of all material papers . . . referred to in an affidavit shall be attached thereto or filed therewith or their absence satisfactorily explained." Crest contends that the surety's failure to attach the bond applications and the bonds themselves to the affidavit rendered the entry of summary judgment below improper, since the burden of proving entitlement was on the surety. See Security Ins. Co. v. Mangan, 250 Md. 241, 242 A. 2d 482 (1968). While the surety contends that the issue was not[***21] raised below, we shall nevertheless consider it since it relates to a possible substantive deficiency in the summary judgment affidavit in setting forth facts necessary to establish a prima facie case.  See Wyand v. Patterson Agency, Inc., 266 Md. 456, 295 A. 2d 773 (1972).

   Considering the statutory requirement that payment and performance bonds must be issued by a surety before any state contract exceeding five thousand dollars is awarded (Real Property Article, § 9-112 (a)), in light of the undisputed allegation of the surety's performance of its bonded obligations after Mega's default contained in the surety's affidavit, we think a sufficient showing was made of the surety's obligation to perform and its entitlement to the retained funds by reason of its performance.

   Having expended a greater monetary sum in the performance of its obligations than remained in the hands of the Department, the surety was properly awarded the entire amount in the court below.

   Judgment affirmed, costs to be paid by appellant. 

CANDELLA v. SUBSEQUENT INJURY FUND et al. 
No. 129, September Term, 1975
 
Court of Appeals of Maryland
 
277 Md. 120; 353 A.2d 263; 1976 Md. LEXIS 955

 March  2, 1976, Decided

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

DISPOSITION: Judgment affirmed; appellant to pay costs.

CORE TERMS:  electric shock, psychiatrist, workmen's, patient, permanent, hearsay, admissibility, medical history, claimant, psychiatric testimony, industrial disability, inadmissible, nontreating, admissible, insurer, hearsay testimony, probative value, simple fact, misunderstanding, deceased, struck, information provided, conclusions reached, hearsay statement, hearsay rule, medical evidence, medical expert, trustworthiness, elimination, declaration

COUNSEL: Submitted on brief by James E. Crawford and Peter G. Angelos[***3] for appellant.

   J. Kent Leonnig, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and H. George Meredith, Jr., Special Assistant Attorney General, on the brief, for Subsequent Injury Fund, part of appellees. Ronald A. Baradel, with whom were S. Kennon Scott and Hartman & Crain on the brief, for Friendship International Hotel and Aetna Casualty & Surety Company, other appellees.

JUDGES: Singley, Smith, Digges, Levine, Eldridge and O'Donnell, JJ.  Levine, J., delivered the opinion of the Court.

OPINIONBY: LEVINE

OPINION: [*121] [**264] This appeal concerns the admissibility of expert opinion in a workmen's compensation case offered by a nontreating psychiatrist whose testimony was based solely on a medical history furnished by the claimant. This evidence, admitted before the Workmen's Compensation Commission (the commission), led to an award in favor of the employee against appellees: the employer, the insurer and the Subsequent Injury Fund.  On appeal, substantially the same testimony was presented to the Circuit Court for Anne Arundel County (Childs, J.), which granted a written motion filed by the employer and insurer [***4]to strike the disputed evidence produced on both occasions.  Without this testimony, expert evidence to support an award was lacking; consequently, the court entered judgment for appellees.  We granted a writ of certiorari prior to consideration of the case [*122] by the Court of Special Appeals, and for reasons that follow, we shall affirm the decision of the circuit court.

   While employed as a maid at the Friendship International Airport Hotel on February 12, 1971, appellant suffered an electric shock when she attempted to turn off a vacuum cleaner.  She suffered no physical injury as a consequence, but claimed to experience myriad symptoms of an emotional nature for which she sought workmen's compensation.  Although she received psychiatric treatment intermittently for some three years, on both an inpatient and outpatient basis, none of the psychiatrists who had treated her during this period testified before the commission or in the circuit court.  Instead, appellant called Dr. Harry A. Teitelbaum, a psychiatrist to whom she had been referred by her attorney.  Dr. Teitelbaum saw her on a total of seven occasions, four of which preceded the commission hearing, but not for the[***5] purpose of treatment. He consistently expressed the view in his written reports that appellant suffered from "psychoneurosis, post-traumatic, with severe emotional disturbance following electric shock . . . ," and [**265] testified accordingly before the commission and the circuit court.  This opinion was controverted at the commission and circuit court hearings by a psychiatrist produced by appellees, who testified that appellant suffered from "a very severe personality disorder" which was not causally related to the electric shock and, in fact, antedated it. 

   In 1962, appellant, who suffered from congenital pulmonic stenosis, had undergone open-heart surgery at the Naval Medical Center at Bethesda, Maryland. In consequence of this prior history and Dr. Teitelbaum's opinion that as a result of the electric shock episode, appellant had sustained "an overall psychiatric disability of 75%," which he judged to be permanent, the commission found that appellant had incurred a 60% permanent partial industrial disability. Of this total, 50% was attributable to the accidental injury, manifested by the psychiatric condition, which became the responsibility of the employer and insurer. [***6] The remaining 10%, charged to the Subsequent Injury Fund, ensued from the further finding that the previous heart impairment was [*123]a hindrance to appellant's employment, resulting in a permanent partial disability that was "substantially greater by reason of the combined effects of the impairment and subsequent injury." See Maryland Code (1957, 1964 Repl. Vol.) Art. 101, § 66.

   The circuit court overturned the decision of the commission, ruling that Dr. Teitelbaum's testimony on both occasions was inadmissible there, since "his findings were based largely upon the history [furnished by appellant] and also upon her representations of symptoms which she had experienced." (emphasis in original).  In striking the testimony, the court rested its decision on the principle that the opinion of a physician is inadmissible when based upon the case history supplied by a patient, not for the purpose of obtaining treatment, but to qualify the physician as a medical expert. Since the commission was therefore left without "medical evidence before it to arrive at its allocation of percentage of the injury," and the remaining nonmedical testimony was "insufficient to sustain[***7] the findings and order of the [c]ommission," the court found "that [appellant] sustained no permanent industrial disability to her body as the result of the electric shock she sustained." For essentially the same reasons, the Subsequent Injury Fund was relieved of the liability which had been fastened upon it by the commission.

   We have applied in this State the universally recognized principle that an attending physician may testify as to the medical history related to him by his patient, and may also state his conclusions reached on the strength of that history.  Adams v. Benson, 208 Md. 261, 266-67, 117 A. 2d 881 (1955); Yellow Cab Co. v. Henderson, 183 Md. 546, 552-53, 39 A. 2d 546 (1944); see Riddle v. Dickens, 241 Md. 579, 581, 217 A. 2d 304 (1966). The same proposition has been applied in cases where the medical witness is a psychiatrist, Wilhelm v. State Traffic Comm., 230 Md. 91, 97, 185 A. 2d 715 (1962); Connor v. State, 225 Md. 543, 556-57, 171 A. 2d 699, cert. denied, 368 U.S. 906 (1961); and in workmen's compensation cases, see Fisher Body Division v. Alston, 252 Md. 51, 54-55, 249 A. 2d 130 (1969). Such testimony is admitted under an [*124] [***8] exception to the hearsay rule, the underlying rationale being that the patient's statements to his doctor are apt to be sincere when made with an awareness that the quality and success of the treatment may largely depend on the accuracy of the information provided the physician.

   In Maryland, however, we have not extended this principle to include the case in which the patient's history has been related to a nontreating physician, Rossello v. Friedel, 243 Md. 234, 241-42, 220 A. 2d 537 (1966); Wilhelm v. State Traffic Comm., supra, 230 Md. at 97; see Wolfinger v. Frey, 223 Md. 184, 190-91, 162 A. 2d 745 (1960); Parker v. State, 189 Md. 244, 248-50, 55 A. 2d 784 (1947); in these instances, the trustworthiness [**266] which characterizes the declaration is no longer assured, since the patient is aware that the statements are being received primarily to enable the physician to prepare testimony on his behalf rather than for purposes of diagnosis and treatment.

   We recognize that a number of states make a distinction which permits the nontreating physician to present his conclusions and the information, including the history received from the patient, upon which he has[***9] relied for those conclusions.  In those states, the history is not admitted as substantive evidence, but merely for the nonhearsay purpose of explaining the conclusions reached by the physician.  We have heretofore declined, however, to adopt this view despite the criticism aimed at our own more restrictive rule.  Adams v. Benson, supra, 208 Md. at 267-69; see generally C. McCormick, Evidence § 293 (1972).  In this case, we shall adhere to that position.

   While Code (1957, 1964 Repl. Vol.) Art. 101, § 11, provides that the commission is not to "be bound by the usual common law or statutory rules of evidence," such evidence may be subject to rejection in the circuit court on a review de novo.  The admissibility of hearsay testimony in workmen's compensation cases has been considered by this Court on a number of prior occasions.  See, e.g., Commercial Transfer v. Quasny, 245 Md. 572, 227 A. 2d 20 (1967); Spence v. Steel Co., 173 Md. 539, 549, 197 A. 302 (1938); Horn Ice Cream Co. v. Yost, 164 Md. 24, 163 A. 823 (1933); Gas [*125] Equipment Corp. v. Baldwin, 152 Md. 321, 326, 136 A. 644 (1927); Standard Oil Co. v. Mealey, 147 Md. 249, 127 A. 850[***10] (1925).

   In Standard Oil Co. v. Mealey, supra, 147 Md. at 255, where, in upholding a lower court ruling that admitted statements which a deceased workman had made to his wife and his physicians to the effect that he had fallen and struck his side at a spot where a malignant growth later developed, the Court observed that the statements "refer[red] to a simple fact, and were such as to leave no room for substantial misunderstanding . . . ." In Spence v. Steel Co., supra, the only evidence of the cause of an alleged accident was the hearsay statements of the deceased to his wife and his physician.  In holding the statements admissible, this Court, after reviewing a number of our prior cases, said:

   "This court has not said in any of the cases cited that the safeguards against the admission generally of hearsay evidence in compensation cases should be disregarded, but that it should be received with great caution, and so far has only approved the admission of statements of employees who, because of their intervening deaths, could not testify themselves, and then their hearsay statements have only been admitted when they have been made so promptly after the alleged[***11] injury and were so closely related to the facts and physical conditions as to give them substantial probative value." Id., 173 Md. at 549-50 (emphasis added).

   In the final analysis, as Judge Oppenheimer said for the Court in Commercial Transfer v. Quasny, supra, 245 Md. at 580, also a case involving the admissibility of a hearsay statement made by an employee to his wife shortly before his death, "this Court has been careful to formulate no binding rule [in workmen's compensation cases] to determine whether or not a hearsay statement of the nature here involved is admissible; it has laid down guidelines, but, as in other fields of the law, the cases have been decided on the particular facts." Although most, if not all, of the cases [*126] approving the admissibility of hearsay in workmen's compensation cases appear to have involved the statement of a deceased employee describing a simple event, we continue to eschew the adoption of a binding rule, preferring to consider each case on its particular facts.

   [**267] Here, the statements made by appellant are so lacking indicia of reliability as to deprive them, and consequently the medical witness's conclusions, [***12] of the probative value essential to their admissibility. See Gas Equipment Corp. v. Baldwin, supra, 152 Md. at 326. No treatment of any kind was rendered by the physician to whom appellant had been referred by her attorney to assist in the preparation of his testimony, nor was it contemplated that there be any treatment.  As one might expect in the case of a psychiatrist, his examination consisted solely of hearing the subjective statements furnished by the claimant, and his conclusions were based exclusively on that information.  The fact that she had seen the psychiatrist on four occasions prior to the commission hearing is of no consequence since none of those visits was for the purpose of treatment.  The most significant fact, perhaps, is that appellant related the history to the psychiatrist knowing that it was merely for the purpose of qualifying him as a witness on her behalf. Manifestly, the area we are dealing with here, among the most complex in all of medical science, hardly lends itself to statements of "simple fact" calculated to leave "no room for substantial misunderstanding." Standard Oil Co. v. Mealey, supra, 147 Md. at 255.

   Clearly, the statements on which[***13] the physician's conclusions were based cannot withstand the close scrutiny of hearsay testimony mandated by our prior decisions.  We hold, therefore, that the circuit court properly struck the testimony presented by appellant's medical expert at both the commission and court hearings.
 
   With appellant's case stripped of the psychiatric testimony, little need be said concerning the decision of the circuit court that the commission order was consequently unsupported by competent medical evidence or by sufficient nonexpert testimony.  Since the case was tried in the circuit [*127] court without a jury, the court, even given the prima facie correctness of the decision by the commission, was required to determine whether the commission had correctly construed the facts and, if not, how they should have been construed. Greene v. Yeager, 222 Md. 411, 414, 160 A. 2d 605 (1960). In other words, § 56 of the Workmen's Compensation Law, Code (1957, 1964 Repl. Vol.) Art. 101, authorizes a review of the facts as well as of the law.  Abell v. Goetze, Inc., 245 Md. 433, 437, 226 A. 2d 253 (1967); Smith v. State Roads Comm., 240 Md. 525, 533, 214 A. 2d 792 (1965); see Md. Bureau [***14]  of Mines v. Powers, 258 Md. 379, 382, 265 A. 2d 860 (1970).

   The elimination of the psychiatric testimony offered by appellant left her without any expert testimony to support her claim of post-traumatic psychoneurosis.  On the other hand, the court was confronted with the psychiatric testimony presented by appellees which unequivocally established that appellant's emotional problems antedated, rather than resulted from, the electric shock. The court was, therefore, free to find, as it did, that appellant suffered "no permanent industrial disability to her body as the result of the electric shock."

   Judgment affirmed; appellant to pay costs. 

MURPHY, Chief Judge of the Court of Appeals of Maryland, etal. v. YATES 
No. 68, September Term, 1975
 
Court of Appeals of Maryland
 
276 Md. 475; 348 A.2d 837; 1975 Md. LEXIS 740; 84 A.L.R.3d 1

 December  22, 1975, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Filed January 20, 1976; Denied February 5, 1976.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Decree modified as set forth in the foregoing opinion, and as modified, affirmed; mandate to issue forthwith; costs of this appeal to be paid by appellants.

CORE TERMS:  duty, common law, general assembly, governor, prescribed, vested, prosecute, appointed, salary, commissioned, attorney-general, appointment, depending, session, peace, constitutional amendment, transferred, nominated, supplied, election, deputy, designation, common-law, possessed, judicial district, trial level, ex officio, convention, diminished, treasurer

COUNSEL: Francis B. Burch, Attorney General, and George A. Nilson, Assistant Attorney General, with whom were Henry R. Lord, Deputy Attorney General, and Robert A. Zarnoch, Assistant Attorney General, on the brief, for appellants.

   J. Edward Davis and John J. Ghingher, III, with whom were Weinberg & Green on the brief, for appellee.

JUDGES: Singley, Smith, Levine, Eldridge and O'Donnell, JJ., and Robert [***3]E. Clapp, Jr., Associate Judge of the Sixth Judicial Circuit and David Ross, Associate Judge of the Eighth Judicial Circuit, specially assigned. Singley, J., delivered the opinion of the Court.  Levine and Eldridge, JJ., dissent and Levine, J., filed a dissenting opinion in which Eldridge, J., concurs at page 504 infra.

OPINIONBY: SINGLEY
 
OPINION: [*476] [**838] At its 1975 session, the General Assembly enacted what has come to be known as the State Prosecutor Act (the Act). n1 The Act created the office of State Prosecutor, "an independent unit in the executive branch . . . for administrative purposes only . . . within the office of the Attorney General." n2 The State Prosecutor would be [*477] nominated by a State Prosecutor Selection and Disabilities Commission (the Commission) created by the Act and appointed by the Governor for a term of six years, subject to confirmation by the Senate.  The State Prosecutor would investigate, on his own initiative, or at the request of the Governor, the General Assembly, the Attorney General or a State's Attorney, criminal offenses under the State election laws and conflict of interest laws; violations of State bribery laws; offenses[***4] constituting criminal malfeasance, misfeasance or nonfeasance in office by an officer of the State or of a political subdivision of the State; and investigate, at the request of the Governor, Attorney General, General Assembly or a State's Attorney, criminal activity committed partly in the State and partly in another jurisdiction or committed in more than one political subdivision of the State.  Upon a finding of an alleged criminal violation, the State's Attorney having jurisdiction would be allowed 45 days within which to commence prosecution.  Upon the failure of a State's Attorney to act, prosecution could be commenced by the State Prosecutor.

n1 The text of Chapter 255 of the Laws of 1975 (the Act) as enacted by the General Assembly appears as an Appendix to this opinion.  It may also be found in Maryland Code (1957, 1968 Repl. Vol., 1975 Cum. Supp.) Art. 10, §§ 33A through 33F.

n2 Of more than passing interest is the fact that Chapter 255 as originally proposed contained alternate versions of the Act, the first of which was to become effective on 1 January 1977 only in the event of the ratification of a constitutional amendment if proposed by the Legislature and enacted by the voters in the November, 1976 general election. We were advised at argument that such a constitutional amendment was not proposed at the 1975 session of the General Assembly.

[***5]

   The Commission created by the Act consisted of the Chief Judges of the Court of Appeals, the Court of Special Appeals and the District Court (the Chief Judges), and the Attorney General, all ex officio, with power to vote; three persons jointly nominated by the President of the Senate and the Speaker of the House of Delegates; one person nominated by the Board of Governors of the Maryland State Bar Association; and one person nominated by the governing board of the Maryland State's Attorneys Association.  Staggered terms were provided for the appointed members.

   On 15 August 1975, Donna M. Yates, the appellee and cross-appellant here, a resident, registered voter and taxpayer of the State of Maryland, filed in the Circuit Court for Anne Arundel County, in her own behalf and in behalf of similarly situated residents, citizens, taxpayers and property owners of the State, a petition in which she challenged the validity of the Act.  Joined as defendants were Robert C. Murphy, Chief Judge of the Court of Appeals of Maryland; Charles E. Orth, Jr., Chief Judge of the Court of [*478] Special Appeals; Robert F. Sweeney, Chief Judge of [**839] the District Court; Francis B. Burch, [***6] the Attorney General; Andrew L. Sonner, n3 State's Attorney for Montgomery County; Marvin Mandel, Governor of Maryland; Louis L. Goldstein, the State Comptroller, and William S. James, the State Treasurer.

n3 It appears that Mr. Sonner has been nominated for appointment to the Commission by the Maryland State's Attorneys Association.

   The petition sought declaratory and injunctive relief: a declaration that the Act is unconstitutional and injunctions forbidding the Governor from appointing the Commission provided for by the Act; forbidding the Chief Judges, the Attorney General and State's Attorney Sonner from serving as members of the Commission, and forbidding the Comptroller and the Treasurer from expending public funds for the purposes of the Act.

   After the defendants had answered and cross motions for summary judgment had been filed on the ground that there was no genuine dispute as to any material fact, the trial court (Childs, J.) entered a declaration that the Act was constitutional and valid, except[***7] to the extent that it purported to designate the Chief Judges as ex officio members of the Commission.  The trial court further concluded that the provisions of the Act were severable and that the portion declared unconstitutional neither tainted the remainder of the Act nor rendered unworkable a Commission reduced from nine members to six.

   An appeal was then noted in behalf of the defendants as well as a cross-appeal, in behalf of Donna M. Yates, contending that the Act is unconstitutional in its entirety.  We granted certiorari in order that the matter might be reviewed by us, and advanced the case for argument.

   The appellants and cross-appellees would have us hold that:
 
(i) Article V of the Maryland Constitution does not preclude the statutory grant of concurrent prosecutorial powers to the office of State Prosecutor;
 
[*479] (ii) By naming the Chief Judges as ex officio members of the Commission the Act does not violate the separation of powers doctrine as embodied in Article 8 of the Declaration of Rights of the Maryland Constitution; 
 
(iii) It is not a violation of Article 33 of the Declaration of Rights of the Maryland Constitution for the Act[***8] to provide for ex officio membership of the Chief Judges on the Commission;
 
 (iv) The common law rule prohibiting the holding of incompatible positions is not violated by a statute providing for membership of the Attorney General, the Chief Judges and a State's Attorney on the Commission;
 
(v) It is not a violation of Article 35 of the Declaration of Rights of the Maryland Constitution for the Act to provide for membership of the Chief Judges, the Attorney General and a State's Attorney on the Commission;
 
(vi) The Act is not invalid because of any alleged contradiction between Sections 33D(A) and 33D(B) [of the Act];
 
(vii) Investiture of the Governing Board of the Maryland State's Attorneys Association and of the Board of Governors of the Maryland State Bar Association with the power to nominate Commission members does not result in an unlawful delegation to private organizations of powers reserved by Article II, § 10 of the Maryland Constitution to the Governor;
 
(viii) Even if there are legal or constitutional impediments to any of the public members serving on the Commission, these impediments do not [**840] render the Act as a whole invalid or unconstitutional;
 
[***9] [*480] (ix) Should service of some on the Commission be held constitutionally impermissible, the remaining members should be deemed to constitute the "authorized membership" under the Act.

   Interesting as these questions are, we regard the first as addressing the basic question.  We think that the issue might be more precisely stated if it were phrased: "Has the General Assembly constitutional authority, except as provided by the Constitution, to empower any officer to prosecute crimes at the trial level to the exclusion of a State's Attorney?" with a corollary: "Has the General Assembly constitutional authority to empower any officer to conduct proceedings by or against the State at the appellate level to the exclusion of the Attorney General?".  In order to address ourselves to it, a brief historical overview may be helpful.

   The Declaration of Rights adopted on 14 August 1776 by our first Constitutional Convention provided in Article 3:
 
"That the inhabitants of Maryland are entitled to the common law of England . . . and to the benefit of such of the English statutes as existed at the time of their first emigration, and which, by experience, have been found applicable [***10]to their local and other circumstances, and of such others as have been since made in England, or Great Britain, and have been introduced, used and practised by the courts of law or equity . . . ."

   Article XLVIII of the Constitution adopted on the same day provided for an Attorney General, to be appointed by the Governor, but made no attempt to delineate his duties. For more than 40 years the Attorney General had those powers and duties vested in him by the common law of England: the management of all legal affairs and the prosecution of all suits, civil and criminal, in which the Crown was interested, State ex rel. Lamb v. Cunningham, 83 Wis. 90, 130-34, 53 N. W. 35, 51-52 (1892); 7 Am.Jur.2d Attorney General § 6 (1963).  As a consequence, the common law powers and duties of the Attorney General in England [*481] were vested by the Constitution, when read in conjunction with the Declaration of Rights, in Maryland's Attorney General.

   At its 1816 session, the General Assembly enacted Chapter 247 of the Laws of that year, which submitted for confirmation by the next succeeding session of the General Assembly an amendment to the Constitution of 1776:
 
"Sec. [***11] 1 Be it enacted by the General Assembly of Maryland, That all and every part of the constitution and form of government of this state, which relates to the attorney general, be and the same is hereby abrogated, annulled, and made void.
 
2. And be it enacted, that the duties and services, now provided by law to be done and performed by the attorney general, shall be done and performed by such persons, and in such manner as the general assembly of Maryland shall hereafter direct." (emphasis in original).
 
3. * * *"
 
This amendment was confirmed by Chapter 69 of the Laws of 1817.

   At the 1817 session, Chapter 146 of the Laws of that year implemented the amendment.  It is quoted, in part:

   "1. BE IT ENACTED, by the General Assembly of Maryland, That there shall be appointed and commissioned a person of sound legal knowledge, who shall be styled Attorney General of Maryland, and who, previous to and during his acting as such, shall reside in the state, and whose duty it shall be to prosecute and defend, on the part of the state, all cases now depending, or which may hereafter be brought in, or removed to, the court of appeals for the western [**841]or[***12] eastern shore, by or against the state, or wherein the state shall or may be interested, in the same manner that the attorney general heretofore was accustomed to do, or could do; and he shall have, exercise and use, all and [*482] every the powers and authorities in and relating to the same, as the attorney general heretofore had, used and exercised, or can have, use and exercise, in similar cases, and he shall give his opinion and advice whenever he shall be required by the general assembly, or either branch thereof, by the governor and council, or by the treasurer of either shore, on any matter or subject depending before them, or where the interest of the state may require.

   "2. AND BE IT ENACTED, That there shall be appointed and commissioned, for each of the several judicial districts of this state, a person of sound legal knowledge, who shall be styled District Attorney of the judicial district for which he shall be commissioned, and who shall, previous to and during his acting as such, reside in the judicial district for which he shall be commissioned.

   "3. AND BE IT ENACTED, That there shall be appointed and commissioned, for Baltimore city court, a person of sound legal[***13] knowledge, who shall be styled District Attorney of Baltimore City Court, and who shall, previous to and during his acting as such, reside in the city of Baltimore.

   "4. AND BE IT ENACTED, That each and every district attorney to be appointed and commissioned in virtue of this act, shall, within the county courts of the judicial district, or within Baltimore city court, as the case may be, for which he shall be commissioned, have, use, exercise and perform, all and every the powers, authorities and duties, which the attorney general of this state, or his deputies, heretofore had, used, exercised and performed, and shall prosecute and defend, on the part of the state, all civil actions now depending, or which may hereafter be brought by or against the state, in the county courts of the judicial district for which he shall be commissioned, in the same manner, and with the like power and authority, as the attorney general, or his deputies heretofore could do and [*483] perform, or were bound to do and perform in like cases." (emphasis in original).

   It should be noted that the amendment caused to be identified by statute the powers and duties which the Attorney General had traditionally[***14] exercised and performed, including what had been the constitutional powers of the office; redistributed the duties among the Attorney General and the District Attorneys, and added the requirement that the Attorney General render opinions to the General Assembly, the Governor and Council, or the Treasurer. There matters stood until the enactment of Chapter 126 of the Laws of 1821, which provided for the appointment of an Attorney General by the Governor and returned to the Attorney General the powers conferred upon the District Attorneys in 1817.  It continued, in Part IV, Section 1:
 
". . . [I]t shall be the duty of the said attorney general, to prosecute and defend on the part of the state, all cases now depending, or which may hereafter be brought in, or removed to any of the counties of this state, or wherein the state shall or may be interested, in the same manner, as the attorney general heretofore was accustomed to do or could do; and he shall have, exercise and use all and every the powers and authorities in and relating to the same, as the attorney general heretofore had used and exercised, or can have, use and exercise in similar cases . . . ."
 
Once again, [***15] the common law powers of the office became statutory.

   In 1851, Maryland adopted a new Constitution.  Of particular significance are Article III, Section 32, "[n]o law shall be [**842] passed creating the office of attorney-general" and Article V, which provided for the election of a State's Attorney for each county and the City of Baltimore and continued, in Section 3:

   "The State's attorney shall perform such duties [*484] and receive such fees and commissions as are now prescribed by law for the attorney-general and his deputies, and such other duties, fees, and commissions as may hereafter be prescribed by law . . . ."
 
As a consequence, the common law powers of the Attorney General which had been delineated by Chapter 126 of the Laws of 1821 were transferred to and made the constitutional powers and duties of the State's Attorneys.

   Just 13 years later, the Constitution of 1864 was adopted.  Article V, Attorney-General, provided in Section 1 for an elected Attorney General and continued, in Section 3:
 
"It shall be the duty of the attorney-general to prosecute and defend, on the part of the State, all cases which at the time of his election and qualification, [***16] and which thereafter may be depending in the court of appeals, or in the Supreme Court of the United States, by or against the State, or wherein the State may be interested; and he shall give his opinion in writing whenever required by the general assembly, or either branch thereof, the governor, the comptroller, the treasurer, or any State's attorney, on any matter or subject depending before them, or either of them, and when required by the governor or the general assembly he shall aid any State's attorney in prosecuting any suit or action brought by the State in any court of the State; and he shall commence and prosecute or defend any suit or action in any of said courts, on the part of the State, which the general assembly or the governor, acting according to law, shall direct to be commenced, prosecuted, or defended . . . ." n4

n4 The only other delineation of the authority and duties is set forth in Maryland Code (1957, 1971 Repl. Vol.) Art. 32A, § 2.

   Section 7 of the same article provided for the[***17] election of a State's Attorney for each county and for the City of [*485] Baltimore. Section 9 described the duties of the State's Attorney:
 
". . . [He] shall perform such duties and receive such fees and commissions as are now or may be hereafter prescribed by law.  . . ."
 
The phrase "now . . . prescribed by law" referred to Maryland Code (1860) Art. 11, § 18 n5 as amended by Chapter 177 of the Laws of 1862 which gave the State's Attorney additional authority to "prosecute and defend, on the part of the State, all cases in which the State may be interested," including cases at the appellate level because, in 1862, the office of Attorney General did not exist.

n5 This was a codification of Chapter 126 of the Laws of 1821.

   Three years later, Maryland adopted the Constitution of 1867, its fourth and last.  Article V, Attorney-General and State's Attorneys, in Section 3, describing the duties of the Attorney General, uses virtually the same language as that contained in the parallel provision[***18] of the 1864 Constitution. n6 The description of the duties of the State's Attorney, set out in Section 9, is identical to that contained in Article V, Section 9 of the earlier Constitution. n7

 n6 Curiously, the 1867 Constitution substituted the phrase "appointment and qualification" in Section 3 for the phrase "election and qualification" in Section 3 of the 1864 Constitution.  This language has not since been altered, although it is clear that in 1867 the Convention substituted the concept of an elected Attorney General for the original proposal that he be appointed by the Governor.

n7 The text of the Constitutions of 1776, 1851, 1864 and 1867 quoted here is that set forth in Constitutional Revision Study Documents of the Constitutional Convention of Maryland (1968).  An examination of the Debates and Proceedings of the 1851 Convention (Vol. 1, 415-26, 435; Vol. 2, 6-15) indicates that the substitution of the State's Attorneys for the Attorney General was dictated by the necessities of travel, see, P. Clarkson, R. Jett, Luther Martin of Maryland (1970) 54, 55, 194-95.  Martin had been Attorney General from 1778 to 1805 and from 1818 to 1822.  During his term of office he tried literally thousands of cases in all parts of the State, traveling by coach, wagon and on horseback. Debates and Proceedings of the 1864 Convention (Debates at 1458-75; Proceedings at 501, 754) based the reestablishment of the office of Attorney General on expenditures made since 1851 for the retention of special counsel, estimated to be between $24,000 and $40,000.

[***19]

   [**843] In other words, the State's Attorneys of this State have had the constitutional duty and obligation since 1851 and through the succeeding Constitutions to prosecute and [*486] defend on the part of the State all cases in which the State may be interested, subject only to constitutional limitations.

   Amendments to Constitution Art. V, §§ 3 and 9 since 1867 have been relatively few and, with one exception, of little significance.  As regards the Attorney General, Chapter 663 of the Laws of 1912 provided that his salary should be such as the General Assembly may from time to time provide and prohibited the Governor from employing additional counsel unless authorized by the General Assembly. Chapter 10 of the Laws of 1966 added intermediate courts of appeal to those courts in which the Attorney General represents the State.

   Section 9, which sets out the duties of the State's Attorneys, has been amended four times.  Chapter 185 of the Laws of 1900; Chapter 624 of the Laws of 1912; and Chapter 177 of the Laws of 1924 all related to the salary to be paid the State's Attorney of Baltimore City and his deputy or deputies.

   However, Chapter 490 of the Laws of 1943 bore the[***20] title:
 
"AN ACT to propose an amendment to Section 9 of Article 5 of the Constitution of the State of Maryland, title 'Attorney-General and State's Attorneys', relating to the salary of State's Attorneys, and to provide for the submission of said amendment to the qualified voters of the State of Maryland for adoption or rejection." (emphasis supplied).

   It is this amendment which is significant here because the text of Article V, § 9 in the Constitution of 1867, and in the three preceding amendments, had always read:
 
"The State's Attorney shall perform such duties and receive such fees and commissions or salary, not exceeding three thousand dollars, as are now or may hereafter be prescribed by law . . . .  (emphasis supplied).
 
Chapter 490 changed the language to read:
 
"The State's Attorney shall perform such duties [*487] and receive such salary as shall be prescribed by law . . . ." (emphasis supplied).

   The appellants would have us read this as authorizing the General Assembly to strip the State's Attorney of his power and duty to prosecute criminal charges at the trial level. We think that the answer to this contention is that [***21]the draftsman of the provision was interested only in providing that the salary of a State's Attorney would be that set from time to time in the future.  This would seem to be borne out not only by the title of the amendment but by the way in which it was placed on the ballot.  The official ballot prepared for the General Election of 7 November 1944, published in the Baltimore "Sun" of 30 October 1944, submitted the question to the voters in this fashion:

   "Question 4

   Constitutional Amendment
 
Amendment to Section 9 of Article 5 of the Constitution of Maryland, title 'Attorney-General and State's Attorneys' [**844] relative to the salary of State's Attorneys."

   In any event, the only statutory implementation of the constitutional grant is that contained in Maryland Code (1957, 1968 Repl. Vol.) Art. 10, § 34:

   "The State's attorney for each county and the City of Baltimore shall, in such county or city, prosecute and defend, on the part of the State, all cases in which the State may be interested."

   The purpose of this somewhat tedious litany has been to demonstrate that the office of our State's Attorney has evolved from the common law powers of England's Attorney[***22] General.  The Constitution of 1851, which abolished the office of Attorney General, transferred the functions and common law and statutory powers and duties of that office to the State's Attorneys.  In other words, that Constitution gave them, inter alia, the power and obligation to perform as well the duties now prescribed for the Attorney General.

   [*488] In 1864, when the office of Attorney General was restored, there was a return to that office of a narrowly defined array of duties spelled out in the Constitution, leaving the constitutional powers and duties relating to criminal prosecutions at the trial level in the office of the State's Attorneys where they had been since 1851, and still are.  At the appellate level, the recreated office of Attorney General was given the constitutional duty of representing the State in carefully defined areas.  As previously mentioned, the Constitution of 1867 reaffirmed these constitutional duties without change.  It seems clear to us that from and after the adoption of the Constitution of 1867, the General Assembly was without power to limit or modify the constitutional duties of either the State's Attorneys or the Attorney General [***23]by transferring the duties of either of these offices to another officer created by statute.

   The Court of Special Appeals has recognized that the office of State's Attorney is a constitutional office, State v. Aquilla, 18 Md. App. 487, 493, 309 A. 2d 44, 47 (1973); State v. Hunter, 10 Md. App. 300, 305, 270 A. 2d 343, 345, cert. denied, 263 Md. 17, 278 A. 2d 608 (1970). In Hunter, 10 Md. App. at 305-06 n. 5, 270 A. 2d at 345-46 n. 5, that court traced the constitutional history of the office, and seems to have concluded, as do we, that the language of Kilgour v. Evening Star Co., 96 Md. 16, 29, 53 A. 716, 719 (1902) (which held that a State's Attorney was without power to limit the expense of an inquest) and of Hawkins v. State, 81 Md. 306, 312-13, 32 A. 278, 279-80 (1895) (which held that the State's Attorney had no authority to institute quo warranto proceedings to oust a public official), to the extent that there was an implication that the office of State's Attorney, since it was unknown at common law, was possessed of no powers other than those prescribed by the Constitution and statutes of the State, must be reassessed because of the manner in which[***24] the office of State's Attorney evolved in Maryland.

   Kilgour and Hawkins, both supra, reflected the general rule set out in 63 Am.Jur.2d Prosecuting Attorneys § 1 (1972):

   "There has been created in the various states, at [*489] the county or similar level, the office of prosecuting attorney, or, as it is termed in some jurisdictions, the office of district attorney, county attorney, state's attorney, public prosecutor, or the like . . . .  This office is of comparatively recent origin, and is solely a creature of the constitutions and statutes of the several states, with its powers and duties chiefly prescribed by such laws." (emphasis supplied; footnotes omitted).

   63 Am.Jur.2d Prosecuting Attorneys § 22 continues:
"The constitution or statutes creating the office of prosecuting attorney generally [**845] outline and define the ordinary powers and duties incident to that office.  The powers and duties pertaining to the office may be enlarged or diminished, or wholly or partially transferred to other district or state officers, as the legislature may see fit, where they are not embedded in the constitution of the state.  Conversely, powers [***25]  and duties of the office prescribed by the constitution may not be increased or diminished by the legislature, acting alone, except insofar as permitted by the constitution," citing Hill County v. Sheppard, 142 Tex. 358, 178 S.W.2d 261 (1944) (emphasis supplied; footnotes omitted).
 
To the same effect is 27 C.J.S.  District and Prosecuting Attorneys § 1; § 10 (1959).

   In Maryland, the powers of the State's Attorneys are nowhere specifically enumerated and defined, Wells v. Price, 183 Md. 443, 446, 37 A. 2d 888, 890 (1944), with the result that our State's Attorneys are vested with the broadest official discretion, Brack v. Wells, 184 Md. 86, 90, 40 A. 2d 319, 321 (1944). We are inclined to accept the conclusion reached by the Court of Special Appeals in the Hunter footnote, 10 Md. App. at 306-07, 270 A. 2d at 346:
 
 "It would appear that in Maryland the powers and duties formerly vested in the common law office of Attorney General with respect to criminal [*490] prosecutions at the trial level passed to the State's Attorney.  While the State's Attorney was possessed of no common law powers of his own, we think it the obvious intention of the[***26] Legislature in broadly providing by statute that the State's Attorney 'prosecute and defend, on the part of the State, all cases in which the State may be interested' to invest that constitutional officer with the same powers respecting the prosecution of criminal cases as were formerly possessed by the Attorney General at common law."

   Two of the prior decisions of this Court, Woelfel v. State, 177 Md. 494, 9 A. 2d 826 (1939) and Beasley v. Ridout, 94 Md. 641, 52 A. 61 (1902) relate at least tangentially to the problem.  In Woelfel, our predecessors rejected a challenge to the validity of a statute which provided for the appointment of one or more trial magistrates for each county and severely limited the jurisdiction of justices of the peace theretofore appointed for each election district.  In the course of its opinion, the Court noted,

   "None of the old English traditions apply to the office of justice of the peace in this state.  Here they are founded on statutes passed in pursuance of the Constitution, which does not indicate what their 'jurisdiction, duties and compensation' shall be, but leaves those incidents of the office to the Legislature." 177 Md. at[***27] 503.

   Beasley involved the validity of a statute which took control of the Anne Arundel County jail from the sheriff and vested it in a Board of Visitors provided for in the Act, which stipulated that three of the board of five visitors were to be appointed by the judges of the Fifth Judicial Circuit.  Of its own motion, the Court reversed an order which had been entered in a mandamus action, directing the sheriff to deliver his prisoners to the Board of Visitors. This was the holding in the case, a result reached because the imposition of nonjudicial duties on judges rendered the statute unconstitutional.

   [*491] In Beasley, however, the Court noted at page 650 of 94 Md.:

   "The sole ground of objection to the validity of the Act in question made in the appellant's brief, and the only one argued at the hearing, was that the office of Sheriff is a constitutional office; that the Sheriff was an officer of the common law, and that when the Constitution of 1776 provided for the election by the people of a Sheriff for each county, without prescribing in express terms the powers and duties of the office, it must [**846] have been intended that the office should carry[***28] with it eo nomine, all the duties, powers and privileges appertaining to it at common law; and that as the custody of the county jail, and the care of the prisoners therein, was the clear common law right of the Sheriff, the Legislature could not destroy or abridge that right, and confer it, in whole or in part, upon any other person designated by it -- or by its delegated authority."

   Taking this as a point of departure, the Court reviewed the cases which dealt with the question whether the holder of a constitutional office could be stripped by the Legislature of his common law powers, and concluded that it was bound by the prior case of Mayor of Baltimore v. Board of Police, 15 Md. 376 (1860), where, in a concurring opinion by Judge Le Grand, the Court had adopted the reasoning of State v. Dews, R. M. Charlton's Rep. 397 (Ga. 1835) that the office of sheriff was a ministerial one, the duties and powers of which could be changed by law.  As a consequence, Beasley rejected the majority rule that the holder of a constitutional office who was vested with common law powers could not be deprived of them by legislative action, Allor v. Wayne County, 43 Mich. 76 (1880);[***29] People v. Albertson, 55 N. Y. 50 (1873); State v. Brunst, 26 Wis. 412 (1870); People v. Keeler, 29 Hun 175 (N.Y. Sup. Ct. 1883); Warner v. People, 2 Denio 272 (N.Y. Sup. Ct. 1845).

   As was noted earlier, at least by 1821, the common law [*492] powers of the Attorney General had become statutory, and upon the adoption of the Constitution of 1851, the common law and statutory powers and duties of the Attorney General had become the constitutional powers and duties of the State's Attorneys, which remained unchanged by the Constitutions of 1864 and 1867 except for the return of a part of those powers to the Attorney General in 1864.

   The situation of the State's Attorneys, being discretionary officers vested with specific common law and statutory powers by the Constitution, is vastly different from that of the sheriffs.  As a consequence, when the General Assembly, by statute, sought to divest the State's Attorneys of a portion of the common law powers conferred upon them by the Constitution, the legislative act was unconstitutional and invalid.

   The rule which can be distilled from the cases is essentially this.  If an office is created by the Constitution, and specific[***30] powers are granted or duties imposed by the Constitution, although additional powers may be granted by statute, the position can neither be abolished by statute nor reduced to impotence by the transfer of duties characteristic of the office to another office created by the legislature, 1 T. Cooley, Constitutional Limitations 562 n. 2 (8th ed. 1927), and see, Ex Parte Corliss, 16 N. D. 470, 114 N. W. 962 (1907); Thomas v. Owens, 4 Md. 189, 227 (1853). We regard this as but another facet of the principle of separation of powers, guaranteed by Article 8 of Maryland's Declaration of Rights:

   "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." n8

n8 For other examples see A. Vanderbilt, The Doctrine of the Separation of Powers 98-99 (1953); see also Crane v. Meginnis, 1 G. & J. 463 (1829) and C. Bond, The Court of Appeals of Maryland 133 (1928).

[***31]

   When a constitutional office is created with such powers and duties as "shall be prescribed by law," the courts have reached differing results.

   [*493] In Shute v. Frohmiller, 53 Ariz. 483, 90 P. 2d 998 (1939), the Supreme Court of Arizona [**847] concluded that resolution of the issue turns on the definition of the word "law" in "as prescribed by law." Thus, if the word "law" is defined as meaning only "statutory law," "it follows necessarily, as most courts hold, that under constitutions containing similar provisions to those in Arizona, the attorney general is not a common-law officer . . . but is one whose powers and duties may be ascertained only by resort to the statutes." 53 Ariz. at 488, 90 P. 2d at 1001, citing State v. Industrial Comm'n, 172 Wis. 415, 179 N. W. 579 (1920); State v. Seattle Gas & Elec. Co., 28 Wash. 488, 68 P. 946 (1902); People v. Santa Clara Lumber Co., 55 Misc. 507, 106 N.Y.S. 624 (1907).

   On the other hand, the court in Shute noted that other courts have construed the word "law" as meaning not only "statutory law" but also "common law." This is the holding of Fergus v. Russel, 270 Ill. 304, 110 N. E. 130 (1915) [***32]where the Illinois Supreme Court said: "[t]he common law is as much a part of the law of this state, where it has not been expressly abrogated by statute, and is included within the meaning of this phrase ['as may be prescribed by law']," 270 Ill. at 337, 110 N. E. at 143. The court then continued by saying: "[b]y our Constitution we created this office by the common-law designation of Attorney General and thus impressed it with all its common-law powers and duties." 270 Ill. at 342, 110 N.E. at 145. The result mandated, in the opinion of the court in Fergus, was that the legislature could not divest the Attorney General of any portion of his common law duty to represent the state before the courts.

   The Arizona Supreme Court in Shute was able to distinguish Fergus in this manner: "the statement [of the Fergus court] was made by a court in a common-law state, one where that system was the rule of decision, unless expressly abrogated by statute, and in which the distinction between common law and equity procedure was still preserved." 53 Ariz. at 493, 90 P. 2d at 1003. This explanation of Fergus seems particularly applicable to Maryland and can be employed[***33] as a distinction between the two lines of authority.  We recognize that the Arizona Supreme Court is [*494] drawing a line between states which evolved from territories of the United States, which never truly adopted the common law of England, and states which have, from their inception, been subject to the English common law system.  Under the Maryland Declaration of Rights of 1776, as successively reenacted, it is beyond doubt that Maryland embraced the common law. Thus, the result is that the General Assembly may not abrogate the common law powers of the Attorney General of Maryland since his powers were the powers of a common law Attorney General, having been constitutionally stated as those "prescribed by law." And, since the office of State's Attorney in Maryland, by the Constitution, has been vested with a portion of the common law powers of the Attorney General, the General Assembly is equally powerless to abrogate the State's Attorney's powers and duties.

   Surely, language in Woelfel v. State, supra, 177 Md. 494, 9 A. 2d 826 supports this conclusion: "[n]one of the old English traditions apply to the office of justice of the peace in this State," 177 Md. at 503, [***34] 9 A. 2d at 829. The logical inference is that had these traditions been applicable, the General Assembly would have been barred from altering the duties of the justices of the peace. In fact, Hawkins v. State, supra, 81 Md. 306, 32 A. 278, is demonstrably not to the contrary.  In Hawkins, the Court made much of the fact that the writ of quo warranto was not within the powers of the Attorney General in England at the time of the Revolution.  Thus, when the office of State's Attorney was created by the Constitution of 1851, the State's Attorney, being vested with the powers previously exercised by the Attorney General, did not have the power to issue the writ either.  Hawkins, however, while suggesting that the power to issue a quo warranto writ [**848] could have been granted by the General Assembly, nowhere suggests that, had the power to issue the writ existed at common law, the General Assembly could have taken that power away.

   We do not find persuasive the contention that the duties imposed on the Special Prosecutor are concurrent with the powers of the State's Attorneys.  The simple fact is that the Special Prosecutor's power to initiate an investigation [***35]and to [*495] commence prosecution if a State's Attorney does not act is a clear invasion of the State's Attorney's most awesome discretionary power: to determine whether or not to prosecute. Furthermore, the Special Prosecutor is empowered by the Act to represent the State in any appeal or post conviction proceeding resulting from his prosecutions.  Such power is an invasion on the constitutional duty imposed upon the Attorney General. Moreover, in each instance the power is transferred from what has traditionally been an elected official to an appointed official.  Praiseworthy though the purpose of the General Assembly might have been in enacting the legislation, the result can only be validly achieved by a constitutional amendment.

   Long ago, Chief Judge Jeremiah Townley Chase, for the General Court, set this matter at rest in Whittington v. Polk, 1 H. & J. 236, 242-43 (1802):

   "The Bill of Rights and form of government compose the Constitution of Maryland, and is a compact made by the people of Maryland among themselves, through the agency of a convention selected and appointed for that important purpose.  This compact is founded on the principle that the people being [***36]the source of power, all government of right originates from them. In this compact the people have distributed the powers of government in such manner as they thought would best conduce to the promotion of the general happiness; and for the attainment of that all-important object have, among other provisions, judiciously deposited the legislative, judicial and executive, in separate and distinct hands, subjecting the functionaries of these powers to such limitations and restrictions as they thought fit to prescribe.  The Legislature, being the creature of the Constitution, and acting within a circumscribed sphere, is not omnipotent, and cannot rightfully exercise any power, but that which is derived from that instrument.

   [*496] "The Constitution having set certain limits or landmarks to the power of the Legislature, whenever they exceed them they act without authority, and such acts are mere nullities, not being done in pursuance of power delegated them: Hence the necessity of some power under the Constitution to restrict the Acts of the Legislature within the limits defined by the Constitution." n9

n9 Interestingly, this decision antedates by one year the landmark decision by Chief Justice Marshall for the United States Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

[***37]

   It follows from the conclusion which we reach that the declaratory decree entered by the trial court will be modified to read as follows, and that as thus modified, will be affirmed:

   The within cause for Declaratory Decree having come on for hearing on the motions for summary judgment of plaintiffs and defendants, arguments of counsel were heard, briefs were received, and the proceedings were read and duly considered.

   WHEREUPON, it is this 27th day of August 1975 by the Circuit Court for Anne Arundel County, in Equity, Declared that Chapter 255 of the Acts of the Legislature of the 1975 Session, be and the same is hereby declared to be unconstitutional and void in its entirety.

   [**849] It is further ordered that the costs of these proceedings be divided between the plaintiffs and the defendants.

   Decree modified as set forth in the foregoing opinion, and as modified, affirmed; mandate to issue forthwith; costs of this appeal to be paid by appellants.

   [*497] APPENDIX
 
Chapter 255 of the Laws of 1975 added new sections 33A through 33F to Maryland Code (1957, 1968 Repl. Vol., 1974 Cum. Supp.) Article 10 and repealed former section 33 and re-enacted it as[***38] section 34:
 
"33A. CREATED; QUALIFICATIONS: TERM: SALARY

   (A) THE OFFICE OF STATE PROSECUTOR IS CREATED AS AN INDEPENDENT UNIT IN THE EXECUTIVE BRANCH AND FOR ADMINISTRATIVE PURPOSES ONLY IS WITHIN THE OFFICE OF THE ATTORNEY GENERAL.  THE STATE PROSECUTOR SHALL BE NOMINATED BY THE STATE PROSECUTOR SELECTION AND DISABILITIES COMMISSION AND APPOINTED BY THE GOVERNOR WITH THE ADVICE AND CONSENT OF THE SENATE FOR A TERM OF SIX YEARS AND UNTIL HIS SUCCESSOR IS APPOINTED AND QUALIFIES.

   (B) A PERSON IS NOT ELIGIBLE TO BE STATE PROSECUTOR UNLESS, AT THE TIME OF HIS APPOINTMENT, HE HAS ACTIVELY AND LAWFULLY PRACTICED LAW IN MARYLAND FOR AT LEAST FIVE YEARS.

   (C) THE STATE PROSECUTOR SHALL RECEIVE THE SALARY PROVIDED IN THE STATE BUDGET, BUT NOT LESS THAN THE SALARY OF A JUDGE OF THE CIRCUIT COURT.

   (D) THE STATE PROSECUTOR MAY BE REMOVED FROM OFFICE BY THE GOVERNOR, BUT ONLY UPON THE RECOMMENDATION OF THE STATE PROSECUTOR SELECTION AND DISABILITIES COMMISSION, FOR MISCONDUCT IN OFFICE, PERSISTENT FAILURE TO PERFORM THE DUTIES OF HIS OFFICE, OR CONDUCT PREJUDICIAL TO THE PROPER ADMINISTRATION OF JUSTICE.
 
[*498] "33B. DUTIES

   (A) THE STATE PROSECUTOR HAS THE DUTIES, POWERS, [***39] AND RESPONSIBILITIES SET FORTH IN THIS SECTION.

   (B) EXCEPT WITH RESPECT TO OFFENSES ALLEGED TO BE COMMITTED BY HIMSELF OR MEMBERS OF HIS STAFF, HE MAY, ON HIS OWN INITIATIVE, OR AT THE REQUEST OF THE GOVERNOR, THE GENERAL ASSEMBLY, THE ATTORNEY GENERAL, OR A STATE'S ATTORNEY, INVESTIGATE:

   (1) CRIMINAL OFFENSES UNDER THE STATE ELECTION LAWS;

   (2) CRIMINAL OFFENSES UNDER THE STATE CONFLICT OF INTEREST LAWS;

   (3) VIOLATIONS OF THE STATE BRIBERY LAWS IN WHICH AN OFFICIAL OR EMPLOYEE OF THE STATE OR OF A POLITICAL SUBDIVISION OF THE STATE WAS THE OFFEROR OR OFFEREE, OR INTENDED OFFEROR OR OFFEREE, OF A BRIBE; AND

   (4) OFFENSES CONSTITUTING CRIMINAL MALFEASANCE, MISFEASANCE, OR NONFEASANCE IN OFFICE COMMITTED BY AN OFFICER OF THE STATE OR OF A POLITICAL SUBDIVISION OF THE STATE.  ANY PERSON WHO IS ADVISED BY THE STATE PROSECUTOR THAT HE IS UNDER INVESTIGATION MAY, AT HIS DISCRETION, RELEASE THIS [**850] INFORMATION INCLUDING ANY RESULTS PERTAINING TO HIM TO THE PUBLIC.

   (C) AT THE REQUEST OF EITHER THE GOVERNOR, ATTORNEY GENERAL, GENERAL ASSEMBLY OR A STATE'S ATTORNEY, THE STATE PROSECUTOR MAY INVESTIGATE CRIMINAL ACTIVITY CONDUCTED OR COMMITTED PARTLY IN THIS STATE [*499] AND[***40] PARTLY IN ANOTHER JURISDICTION, OR WHICH IS CONDUCTED OR COMMITTED IN MORE THAN ONE POLITICAL SUBDIVISION OF THE STATE.

   (D) IF THE STATE PROSECUTOR FINDS THAT AN ALLEGED VIOLATION OF THE CRIMINAL LAW SET FORTH IN SUBSECTIONS (B) OR (C) HAS OCCURRED, HE SHALL MAKE A CONFIDENTIAL REPORT OF HIS FINDINGS TOGETHER WITH ANY RECOMMENDATIONS FOR PROSECUTION TO THE STATE'S ATTORNEY HAVING JURISDICTION TO PROSECUTE THE MATTER. 

   (E) IF THE STATE'S ATTORNEY WITHIN 45 DAYS AFTER RECEIPT OF THE STATE PROSECUTOR'S FINDINGS AND RECOMMENDATIONS FAILS TO FILE CHARGES AND COMMENCE PROSECUTION IN ACCORDANCE WITH THE RECOMMENDATIONS, THE STATE PROSECUTOR MAY PROSECUTE THOSE CRIMINAL OFFENSES AS SET FORTH IN HIS INVESTIGATIVE REPORT AND RECOMMENDATIONS.

   (F) IF THE STATE PROSECUTOR FINDS THAT NO VIOLATIONS OF CRIMINAL LAW HAVE OCCURRED OR HE DOES NOT RECOMMEND PROSECUTION, HE SHALL REPORT HIS FINDINGS TO THE PERSON REQUESTING THE INVESTIGATION.  IF THE GENERAL ASSEMBLY REQUESTED THE INVESTIGATION, THE REPORT SHALL BE MADE TO THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF DELEGATES.  IN ADDITION, THE REPORT SHALL BE MADE AVAILABLE AS SOON AS POSSIBLE TO THE PUBLIC AT THE REQUEST OF THE PERSON [***41]WHO WAS THE SUBJECT OF THE INVESTIGATION.

   [*500] (G) IN THE INVESTIGATION OF ANY CASE AS PROVIDED IN SUBSECTION (B) OR (C), AND THE PROSECUTION OF ANY CASE AS PROVIDED IN SUBSECTION (E), THE STATE PROSECUTOR HAS ALL THE POWERS OF A STATE'S ATTORNEY.  HOWEVER, HE MAY NOT CHARGE A PERSON BY WAY OF INFORMATION BUT MAY PROCEED TO TRIAL ONLY UPON INDICTMENT BY A GRAND JURY WITHIN WHOSE JURISDICTION THE OFFENSE OCCURRED.

   (H) THE TRIAL OF ALL CASES PROSECUTED BY THE STATE PROSECUTOR PURSUANT TO SUBSECTION (E) SHALL TAKE PLACE BEFORE THE CIRCUIT COURT WITHIN WHOSE JURISDICTION THE OFFENSE WAS COMMITTED IN WHOLE OR IN PART, SUBJECT TO REMOVAL IN ACCORDANCE WITH THE MARYLAND RULES.

   (I) HE SHALL, BEGINNING WITH THE FISCAL YEAR 1977, PREPARE AND SUBMIT TO THE GOVERNOR, AFTER REVIEW AND COMMENT BY THE ATTORNEY GENERAL, A CONSOLIDATED BUDGET FOR HIS OFFICE.

   (J) HE SHALL SUBMIT AN ANNUAL REPORT TO THE GOVERNOR AND THE GENERAL ASSEMBLY ON THE ACTIVITIES OF HIS OFFICE WHICH ARE NOT CONFIDENTIAL.

   (K) HE AND THE ATTORNEYS ON HIS STAFF SHALL DEVOTE FULL TIME TO THEIR OFFICIAL DUTIES [**851] AND SHALL NOT ENGAGE IN THE PRIVATE PRACTICE OF LAW. 

   (L) HE SHALL REPRESENT THE STATE IN ALL APPEALS[***42] AND POST CONVICTION PROCEEDINGS ARISING FROM PROSECUTIONS CONDUCTED BY HIM.  HOWEVER, HE MAY REQUEST THE ASSISTANCE OF THE ATTORNEY GENERAL IN ANY SUCH APPEAL OR COLLATERAL PROCEEDING.

   [*501] (M) HE SHALL MEET AND CONFER REGULARLY WITH THE VARIOUS STATE'S ATTORNEYS, AND THE ATTORNEY GENERAL.
 
"33C. STAFF.

   THE STATE PROSECUTOR MAY APPOINT AND EMPLOY THE PROFESSIONAL, INVESTIGATIVE, AND CLERICAL STAFF PROVIDED IN THE STATE BUDGET.  TO THE EXTENT PRACTICABLE, THE STATE PROSECUTOR SHALL UTILIZE THE SERVICES AND PERSONNEL OF THE MARYLAND STATE POLICE AND OTHER ESTABLISHED STATE AND LAW ENFORCEMENT AGENCIES.  THESE AGENCIES SHALL, TO THE EXTENT FEASIBLE, COOPERATE WITH THE STATE PROSECUTOR AND HIS STAFF.

   * * *

   STATE PROSECUTOR SELECTION AND DISABILITIES COMMISSION
 
"33D. CREATION; COMPOSITION

   (A) THE STATE PROSECUTOR SELECTION AND DISABILITIES COMMISSION IS CREATED. IT CONSISTS OF THE CHIEF JUDGE OF THE COURT OF APPEALS, THE CHIEF JUDGE OF THE COURT OF SPECIAL APPEALS, THE CHIEF JUDGE OF THE DISTRICT COURT, THE ATTORNEY GENERAL, ALL EX OFFICIO, BUT WITH POWER TO VOTE, AND FIVE PERSONS APPOINTED BY THE GOVERNOR, AS FOLLOWS:

   (1) THREE PERSONS SHALL BE THE NOMINEES SUBMITTED[***43] JOINTLY BY THE PRESIDENT OF THE SENATE AND BY THE SPEAKER OF THE HOUSE OF DELEGATES.  THESE PERSONS SHALL NOT BE MEMBERS OF THE GENERAL ASSEMBLY, LAWYERS OR FULL-TIME STATE EMPLOYEES.

   [*502] (2) ONE PERSON SHALL BE THE NOMINEE SUBMITTED BY THE BOARD OF GOVERNORS OF THE MARYLAND STATE BAR ASSOCIATION, INCORPORATED.  THIS PERSON SHALL BE A LAWYER ADMITTED TO PRACTICE LAW IN MARYLAND.

   (3) ONE PERSON SHALL BE THE NOMINEE SUBMITTED BY THE GOVERNING BOARD OF THE MARYLAND STATE'S ATTORNEYS ASSOCIATION, INCORPORATED, OR ITS SUCCESSOR.  THIS PERSON SHALL BE AN INCUMBENT STATE'S ATTORNEY.

   (B) THE TERMS OF THE APPOINTED MEMBERS ARE FOUR YEARS AND UNTIL THEIR SUCCESSORS ARE APPOINTED AND QUALIFY.  HOWEVER, OF THE INITIAL APPOINTEES, TWO SHALL HAVE INITIAL TERMS OF FOUR YEARS, TWO SHALL HAVE INITIAL TERMS OF THREE YEARS, TWO SHALL HAVE INITIAL TERMS OF TWO YEARS, AND THREE SHALL HAVE AN INITIAL TERM OF ONE YEAR.  MEMBERS ARE ELIGIBLE FOR REAPPOINTMENT.

   (C) THE MEMBERS OF THE COMMISSION SHALL NOT RECEIVE COMPENSATION BUT SHALL BE REIMBURSED FOR THEIR REASONABLE EXPENSES INCURRED IN THE PERFORMANCE OF THEIR DUTIES, [**852] AS PROVIDED IN THE STATE BUDGET.
 
"33E. DUTIES; NOMINATION[***44] OF STATE PROSECUTOR

   (A) UPON NOTIFICATION BY THE GOVERNOR THAT A VACANCY EXISTS OR IS ABOUT TO OCCUR IN THE OFFICE OF THE STATE PROSECUTOR, THE COMMISSION SHALL SEEK AND REVIEW APPLICATIONS OF PROPOSED NOMINEES FOR THE POSITION.  IT SHALL NOTIFY THE MARYLAND STATE BAR ASSOCIATION, INCORPORATED, [*503] OF THE VACANCY, AND SHALL REQUEST RECOMMENDATIONS FROM THAT ASSOCIATION.  IT SHALL ALSO SEEK RECOMMENDATIONS FROM INTERESTED CITIZENS, AND GROUPS AND FROM ITS OWN MEMBERS.

   (B) THE COMMISSION SHALL EVALUATE EACH APPLICANT, AND SHALL SELECT AND NOMINATE TO THE GOVERNOR THE NAME OF THE PERSON IT FINDS TO BE LEGALLY AND PROFESSIONALLY QUALIFIED BY A VOTE OF A MAJORITY OF THE ENTIRE AUTHORIZED MEMBERSHIP OF THE COMMISSION, TAKEN BY SECRET BALLOT.

   (C) THE COMMISSION SHALL REPORT TO THE GOVERNOR, IN WRITING, THE NAME OF THE PERSON IT NOMINATES.  THE REPORT SHALL BE SUBMITTED WITHIN 70 DAYS AFTER NOTIFICATION THAT A VACANCY EXISTS OR IS ABOUT TO OCCUR.

   (D) THE GOVERNOR MAY REJECT THE NOMINEE FOR CAUSE, IN WHICH EVENT THE COMMISSION SHALL SUBMIT ANOTHER NOMINEE.  THE GOVERNOR, IF HE REJECT THE NOMINEE, SHALL STATE IN WRITING TO THE COMMISSION THE REASONS FOR HIS REJECTION. THIS STATEMENT[***45] IS CONFIDENTIAL, SECRET, AND PRIVILEGED; HOWEVER, THE COMMISSION MAY MAKE IT PUBLIC.
 
"33F. DUTIES; DISCIPLINE AND REPRIMAND OF STATE PROSECUTOR

   (A) THE COMMISSION MAY REPRIMAND OR RECOMMEND TO THE GOVERNOR THE REMOVAL FROM OFFICE OF THE STATE PROSECUTOR IF AFTER A HEARING, IT FINDS THAT HE IS GUILTY OF MISCONDUCT IN OFFICE, PERSISTENT FAILURE TO PERFORM THE DUTIES OF HIS OFFICE, OR [*504] CONDUCT PREJUDICIAL TO THE PROPER ADMINISTRATION OF JUSTICE.

   (B) THE PROCEEDINGS, TESTIMONY, AND OTHER EVIDENCE BEFORE THE COMMISSION ARE CONFIDENTIAL AND PRIVILEGED.  HOWEVER, THE COMMISSION, UPON TAKING FINAL ACTION IN THE MATTER MAY MAKE ITS ORDER AND THE PROCEEDINGS, TESTIMONY AND OTHER EVIDENCE PUBLIC.

   (C) THE COMMISSION IS EMPOWERED TO INVESTIGATE ALLEGATIONS MADE AGAINST THE STATE PROSECUTOR WHICH, IF TRUE, MAY WARRANT HIS REMOVAL OR DISCIPLINE, UPON COMPLAINT OR UPON ITS OWN MOTION.  IT MAY CONDUCT HEARINGS, ADMINISTER OATHS AND AFFIRMATIONS, ISSUE PROCESS TO COMPEL THE ATTENDANCE OF WITNESSES AND THE PRODUCTION OF EVIDENCE, AND REQUIRE PERSONS TO TESTIFY AND PRODUCE EVIDENCE BY GRANTING THEM IMMUNITY FROM PROSECUTION, PENALTY, OR FORFEITURE.

   * * *
 
"34.

   The State's Attorney[***46] for each county and the City of Baltimore shall, in such county or city, prosecute and defend, on the part of the State, all cases in which the State may be interested, SUBJECT TO [**853] THE PROVISIONS OF SECTION 33B OF THIS ARTICLE.

   SECTION 5. AND BE IT FURTHER ENACTED, That this Act shall take effect July 1, 1975."

DISSENTBY: LEVINE

DISSENT:  
Levine, J., dissenting:

   I respectfully dissent.

   Article V, section 9 of the Constitution of Maryland, in providing for the office of the State's Attorney, states that [*505] "[t]he State's Attorney shall perform such duties and receive such salary as shall be prescribed by law . . . ." It is the opinion of the majority that the effect of this constitutional provision is to vest in the State's Attorney all of the powers and duties possessed by the English Attorney General at common law with respect to the prosecution of cases, so that those powers and duties may not be diminished by the Legislature.  The majority's position is not only inconsistent with prior decisions of this Court, but is also contrary to the position taken in an overwhelming majority of jurisdictions faced with a similar issue.

   As created by the General[***47] Assembly in the State Prosecutor Act, Chapter 255 of the Laws of 1975, the office of State Prosecutor, an appointive and independent office in the executive branch, is empowered to investigate possible violations of certain laws of a politically sensitive nature and to commence prosecution of alleged violations upon failure of the State's Attorney to prosecute. Concurrent power with the State's Attorney to prosecute a certain class of crimes is thus given to the State Prosecutor.  I agree with the majority that the effect of giving such concurrent power to the State Prosecutor is to transfer some power from the State's Attorney to the State Prosecutor, that is, discretion to determine whether prosecution should be commenced with respect to that class of crimes enumerated in the Act.  See Ewell v. State, 207 Md. 288, 296, 114 A. 2d 66 (1955); Brack v. Wells, 184 Md. 86, 90, 40 A. 2d 319, 156 A.L.R. 324 (1944). I do not agree, however, that the Constitution prevents such a transfer of power.

   A basic problem with the position of the majority that the State's Attorney is vested, under the broad language of the Constitution, with the powers of the common law Attorney General is[***48] that the framers did not use the common law designation, but instead employed a title without common law significance.
 
   The majority cites the history of the various constitutional and statutory provisions in Maryland pertaining to the offices of State's Attorney and Attorney General to show that the office of State's Attorney was created out of the [*506] office of Attorney General, and, since the Attorney General was a common law officer, the majority concludes that the State's Attorney is therefore vested with the common law powers and duties of the Attorney General. But while it may be true that the State's Attorney now performs many of the duties previously performed by the Attorney General, the fact remains that the office of State's Attorney was not itself a common law office.  Consequently, the inference espoused by the majority, that the framers, while using the term "State's Attorney," meant to vest in the office the powers and duties of the Attorney General at common law, is weak at best.  Thus, in Hawkins v. State, 81 Md. 306, 313, 32 A. 278 (1895), this Court held that State's Attorneys do not possess powers by virtue of the common law because "they are unknown[***49] to it."

   This is not to say that the powers and duties of a common law office are of no significance when the common law term is employed in a constitutional provision, though there is authority to the effect that use of the common law designation of an office in a constitution, without reference to the duties of that office, does not imply that the office is clothed with common law powers and duties. See Baltimore v. State, 15 Md. 376, 468, 74 Am. Dec. 572 (1860); State v. Seattle Gas & Elec. Co., 28 Wash. 488, 68 P. 946, 949 (1902). Here the common law designation is not used and, as will be discussed at length below, reference is made to the duties of the office of State's Attorney.  Nor is it at all clear [**854] what the duties of the English Attorney General were at common law. Fergus v. Russel, 270 Ill. 304, 110 N. E. 130, 149 (1915) (dissenting opinion).  Perhaps the most that can be said in this case is that the common law duties of the predecessor office might aid in interpreting the legislative and constitutional grants of power.

   But, as suggested above, a more fundamental problem with the position of the majority is that the Constitution does make[***50] reference to the duties of the State's Attorney.  Section 9 of Article V provides that the State's Attorney "shall perform such duties . . . as shall be provided by law." While it is widely held that when an office known at [*507] common law is created by constitutional provision, but the constitution is silent as to the powers and duties of the office, constitutional duties of the common law office may be implied, Yelle v. Bishop, 55 Wash. 2d 286, 347 P. 2d 1081, 1086 (1959); Shute v. Frohmiller, 53 Ariz. 483, 90 P. 2d 998, 1000 (1939), such an inference is negated when the constitution seeks to define the duties of the office or authorizes the Legislature to do so.

   Of concern, then, is the effect of the phrase "as shall be provided by law" in Article V.  Only two or, at best, three jurisdictions have been found which hold that the effect of this or similar language in connection with a common law office vests in the office, and thus prevents the Legislature from diminishing, the powers of that office at common law. See Fergus v. Russel, supra; Ex parte Corliss, 16 N. D. 470, 114 N. W. 962, 965 (1907); cf. Wright v. Callahan, 61 Idaho 167, 99 P. 2d 961, 965-66[***51] (1940) (prior statutory office); but see Padgett v. Williams, 82 Idaho 28, 348 P. 2d 944, 948 (1960). The overwhelming majority of jurisdictions, however, have held that language such as that used in Article V authorizes the Legislature fully to prescribe the duties of the office, to the extent of diminishing those duties if it sees fit. See Johnson v. Commonwealth, n1 291 Ky. 829, 165 S.W.2d 820, 826-27 (1942), and Shute v. Frohmiller, supra, 90 P. 2d at 1001-02, and the cases collected therein.

n1 The court in Johnson found 27 jurisdictions with constitutional provisions dealing with the office of Attorney General and containing language similar to that contained in Article V, section 9.  Only two jurisdictions, Illinois and North Dakota, were found where the result was the same as that reached by the majority here.

   This Court faced the very same issue with respect to a common law officer in Beasley v. Ridout, 94 Md. 641, 52 A. 61 (1902). There, a 1901 statute transferring supervision and[***52] control of the Anne Arundel County jail from the Sheriff to a Board of Visitors was challenged as encroaching on vested powers of a constitutional office.  The constitution at that time provided that the Sheriff "shall exercise such powers and perform such duties as now or may hereafter be fixed by law." Upon appointment, the Board of Visitors demanded and was refused custody of the jail by the Sheriff; it then [*508] brought a petition for mandamus.  The Sheriff argued that his was a constitutional office and because the office of Sheriff was one known at common law, all of its duties and powers at common law were vested in the office by the Constitution and the Legislature could not limit these powers or transfer them to another officer. The Court rejected the Sheriff's argument, holding that the clear effect of the language of the Constitution vested complete control over the duties of the office in the Legislature:
 
"Under the present Constitution, the powers and duties which the Sheriff is to exercise and perform are not such alone as were then determined by the common law, but were those -- save and except as then or thereafter fixed by law, whether the effect[***53] of such law was to repeal, enlarge, or limit those powers.  The language could not have been more explicit or plainer in meaning if the Constitution said 'The powers and duties of Sheriffs shall be such as now are or may hereafter be conferred and prescribed by legislative enactment.'" 94 Md. at 656-57 (emphasis in original).

   [**855] Thus, the Court in Beasley upheld the transfer of power from the Sheriff to the Board of Visitors, though it concluded sua sponte that the act in question unconstitutionally imposed non-judicial duties upon the judges who were required to appoint the members of the Board.  I understand the majority to attempt to distinguish Beasley by attributing to that opinion a reliance on Baltimore v. State, supra, and its rationale.  There, the Court, in sustaining another statute having the effect of transferring common law powers of the Sheriff to another officer, adopted what became the minority view that in the case of a constitutional office of a ministerial nature, vested with common law powers and duties by reason of the creation of the office without reference to its powers, such powers and duties could be diminished by statute.

    The [***54] Beasley Court not only did not rely on Baltimore v. State, but to the contrary expressed doubt as to the efficacy [*509] of its reasoning in deference to the majority view.  94 Md. at 656. Instead, what Beasley held was that as a result of the addition of language to that section of the Constitution creating the office of Sheriff, to the effect that the Sheriff shall "exercise such powers and perform such duties as now or may hereafter be fixed by law," the common law powers of the Sheriff were no longer even arguably vested in that office by the Constitution.  It should, perhaps, be noted that the above quoted language was added to the Constitution just four years after the decision in Baltimore v. State, causing the Beasley Court to speculate that perhaps the language was added specifically to incorporate the holding in Baltimore v. State and to end any doubt as to the result.  94 Md. at 657.

   The interpretation in Beasley of the language at issue has also been employed by this Court in the case of a Justice of the Peace, Woelfel v. State, 177 Md. 494, 9 A. 2d 826 (1939), and in the case of a County Commissioner, Prince George's Co. v. Mitchell[***55] , 97 Md. 330, 336-37, 55 A. 673 (1903). So also has the Court held with respect to the Attorney General that he possesses no other powers than those prescribed by the Constitution or by statute, and possesses no powers by the common law of England.  Wells v. Price, 183 Md. 443, 446, 37 A. 2d 888 (1944); Kilgour v. Evening Star Co., 96 Md. 16, 29, 53 A. 716 (1902). The majority sub silentio overrules these cases as well as Beasley.

   The legislative history expounded at length by the majority lends further support to the Beasley interpretation.  The constitution of 1776, Article XLVIII, created the office of Attorney General without referring to the duties of that office, thus arguably vesting in that office the powers of the common law Attorney General.  The 1816 constitutional amendment, however, "abrogated, annulled, and made void . . . all and every part of the constitution and form of government of this state, which relates to the attorney general"; the amendment further provided that "the duties and services, now provided by law to be done and performed by the attorney general, shall be done and performed by such persons, and in such manner as the general assembly[***56] of [*510] Maryland shall hereafter direct." Thus was complete discretion to deal with the powers and duties of the Attorney General clearly vested in the Legislature.  It was against this background that in 1851, the office of State's Attorney was created with such duties "as may hereafter be prescribed by law," and reestablished in the 1864 and 1867 Constitutions with such duties "as are now or may hereafter be prescribed by law."

   The majority is correct only in its inference that the 1943 amendment, which changed the language of Article V, section 9 to provide that the State's Attorney "shall perform such duties . . . as shall be prescribed by law," had no effect upon the state of the office.  I submit that the more precise language of the 1943 amendment only serves to clarify what was the law prior to 1943: that the Legislature [**856] was empowered to modify the common law powers of the office of State's Attorney.

   In my view, it is unnecessary to reach the question whether the Legislature has the power to strip the office of State's Attorney of all of its powers and transfer them to another, perhaps appointive officer.  Woelfel v. State, supra, 177 Md. at 502-03,[***57] and Beasley, supra, 94 Md. at 656, indicate in dicta that the Legislature possesses such power.  See Shute v. Frohmiller, supra , 90 P. 2d at 1004. The Kentucky Court of Appeals, however, in Johnson v. Commonwealth, supra, 165 S.W.2d at 829, expressed the view that to so strip the office of its powers that it be "left without substantial duties, responsibilities and rights" would violate the constitution.  Suffice it to say, the State Prosecutor Act has no such effect.

   I would hold that nothing in Article V, section 9 of the Constitution prevents the Legislature from transferring the necessary power from the State's Attorney to the State Prosecutor to enable the latter to initiate prosecutions in the enumerated class of cases.  Judge Eldridge authorizes me to state that he concurs in the views expressed herein. 

WAKEFIELD et ux. v. LITTLE LIGHT, etc. et al. 
No. 5, September Term, 1975
 
Court of Appeals of Maryland
 
276 Md. 333; 347 A.2d 228; 1975 Md. LEXIS 730

 November  13, 1975, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Wray, J., pursuant to certiorari to the Court of Special Appeals.

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

CORE TERMS:  reservation, tribal, custody, tribe, domicile, guardianship, subject matter jurisdiction, decree, custom, treaty, federal government, guardian, vested, sovereignty, self-government, abandoned, domestic relations, state jurisdiction, child custody, abandonment, territory, parental, jurisdictional, permanent, neglected, domiciled, appointed, exercise jurisdiction, enabling legislation, preeminence

COUNSEL: John G. Gill, Jr., for appellants.

   Elloyd E. Lotridge, with whom was John C. Eidleman on the brief, for Gail Little Light, etc. et al., part of appellees.  Bertram E. Hirsch for Crow Tribe of Indians, other appellee.

JUDGES: [***4]

   Murphy, C. J., and Singley, Smith, Digges, Levine, Eldridge and O'Donnell, JJ.  Murphy, C. J., delivered the opinion of the Court.

OPINIONBY: MURPHY

OPINION: [*334] [**229] This appeal draws into question the power of a state court to award custody of an American Indian child to non-Indian petitioners over the objection of the child's mother and of the Indian tribe to which she belongs, and requires an [*335] examination of the jurisdictional relationships pertaining to child custody among the Indian [**230] tribes, the federal government, and the various states.

   The relevant facts are these: M. Brent Wakefield and his wife Wanda (the Wakefields) were assigned as VISTA volunteers to the Crow Indian Reservation, Lodge Grass, Montana, when in March of 1972 they first observed Allie Little Light (Allie), a Crow Indian child, then three and one-half years of age, in a neglected and undernourished condition.  The Wakefields learned that Allie's father was dead, that Gail Little Light (Gail), Allie's mother, was hospitalized in Billings, Montana, with serious injuries resulting from an automobile accident, and that Allie was left in the care of a white woman who lived on the [***5]reservation. The Wakefields thereafter spent considerable time caring for Allie and, over the course of eight months, they frequently visited Gail in the hospital.  Eventually, the Wakefields discussed with Gail the possibility of adopting Allie, a proposal which Gail refused.

   When their tour of VISTA service ended in late October of 1972, the Wakefields prepared to leave the reservation without Allie.  On October 31, 1972, a little girl appeared at the Wakefield residence with Allie and said, "Gail says you can take him." That afternoon the Wakefields met with Gail and requested that she give her permission in writing.  Gail did so, stating therein that the Wakefields could "take Allie with them and be responsible for him wherever they are, including out of state lines."

   When Mrs. Janice Bille, a Bureau of Indian Affairs social worker, learned that Allie was to be taken off the reservation by the Wakefields, she petitioned the Crow Court of Indian Offenses (the Crow Court) to have Allie declared a neglected and dependent child and made a ward of the Crow Court.  Gail joined in the petition and asked that the Wakefields "be appointed legal guardians of . . . [Allie] for a period[***6] of one (1) year." The Crow Court (Fred Knows Gun, Sr., tribal judge) granted the petition and issued "letters of guardianship" on November 1, 1972, appointing the Wakefields as Allie's "Special Guardians." The [*336] Wakefields appeared before the Crow Court and agreed to support the constitution of the Crow Tribe and to perform their duties as Special Guardians according to law.

   The Wakefields left the reservation with Allie and went to Arizona to visit Mr. Wakefield's parents; from there, they prepared and forwarded an "Affidavit of Consent and Waiver of Notice," to Gail, which she executed after conferring with Mrs. Bille.  This document, dated December 12, 1972, recited that Gail consented to the appointment of the Wakefields as "guardians of the estate and person of Allie . . ., a minor, pursuant to the laws of the State of Maryland or of Arizona or of any other jurisdiction that may be chosen by . . . [the Wakefields]." The document also specified that Gail waived "any notice whatsoever of any proceedings in re the guardianship of the estate and person of Allie . . . ."

   After leaving Arizona, the Wakefields came to Maryland with Allie in December of 1972 and took up[***7] residence.  On July 16, 1973, they filed a petition in the Circuit Court for Anne Arundel County pursuant to Maryland Code (1973 Repl. Vol.), Article 16, § 66 (now Courts & Judicial Proceedings Article, § 3-602), to obtain temporary and permanent custody of Allie.  Gail was served with notice of the Maryland proceeding and obtained counsel in Montana in October of 1973.  Gail telephoned the Wakefields in October and requested that they return Allie to the reservation, but the Wakefields did not do so.  In November of 1973, Gail answered the Wakefields' petition; she requested that it be dismissed and that Allie's custody be returned to her.  The Crow Tribe of Indians thereafter sought the Court's permission to intervene in the Maryland proceeding and it was granted.
 
   In June of 1974, Gail petitioned the Crow Court to terminate the guardianship [**231] previously granted by that court to the Wakefields.  Counsel for the Wakefields was notified of Gail's petition but the Wakefields did not enter an appearance in the proceeding.  By order dated July 10, 1974, the Crow Court (Fred Knows Gun, Sr., tribal judge) terminated the Wakefields' guardianship, granted [*337] permanent[***8] custody of Allie to Gail, and ordered that the Wakefields surrender Allie to tribal officials.  The order specified that Gail resided on the reservation, that the Wakefields' special guardianship was for a period of one year only and had expired, that the special guardianship had been granted solely on account of Gail's temporary ill health, and that Gail was now able to resume her parental responsibilities to Allie.

   The Wakefields' petition for custody was heard in the Circuit Court for Anne Arundel County on July 12, 1974.  Gail moved to dismiss the petition for lack of subject matter jurisdiction, contending that exclusive jurisdiction to determine Allie's custody was vested in the Crow Court on the reservation where Allie had remained domiciled. The chancellor reserved decision on the jurisdictional issue and heard testimony and arguments on the merits of the petition.  On October 7, 1974, he dismissed the petition.  After stating that "[t]he threshold question is whether this Court may act," the chancellor concluded:

   "In oppressing and exploiting a subjugated people, the United States has been a jealous sovereign.  In a line of cases beginning with Worcester v. Georgia [***9], 8 L.ed. 483 (1832), the federal government has denied the states any authority over Indian Reservations, or over Indians living on Reservations, in matters where the Indians had the right to govern themselves, Williams v. Lee, 3 L.ed.(2d) 251 (1959). And where an Indian Nation has a court as part of its government, that court's proceedings and judgments 'are on the same footing with proceedings and judgments of the courts of the territories of the Union, and are entitled to the same faith and credit,' Mehlin v. Ice, 56 Fed. 12 (8th Cir. 1893), at page 19.

   "These rules require this Court to deny the Petitioners the relief they seek, as the Court does not comprehend that the 1931 federal statute the Petitioners cite [46 Stat. 1494, An Act Relating to [*338] the Adoption of Minors by the Crow Indians of Montana] enlarges this Court's jurisdiction without some complementary state legislation, and none has been cited." (Footnotes omitted.)

   The Wakefields appealed to the Court of Special Appeals.  Gail filed a petition for a writ of habeas corpus to obtain Allie's custody pending determination of the appeal, which was denied.  On July 26, 1975, Gail removed Allie[***10] from Maryland without the Wakefields' consent and returned with him to the Crow Reservation in Montana.  We granted certiorari prior to briefing or argument of the case in the Court of Special Appeals.  See Code (1974) Courts and Judicial Proceedings Article § 12-203.

   The Wakefields contend on appeal, as they did below, that the Circuit Court for Anne Arundel County had subject matter jurisdiction to grant the petition notwithstanding Allie's American Indian origin.  They assert that state courts have jurisdiction to determine the custody of an Indian child where "significant acts or omissions" occur off the reservation. They say that all the complexities of subject matter jurisdiction involving Indians arise from transactions or incidents happening on or affecting those lands belonging to or set aside for the use of Indians or Indian tribes, but that an "off the reservation" Indian is subject to state law in exactly the same fashion as any other citizen of this State.  The Wakefields point out that they are Maryland residents, that at the time of the hearing Allie had resided with them for almost 20 months, and was therefore domiciled in Maryland, and that he was brought into[***11] Maryland with full knowledge of the Crow Court and Tribe and with the [**232]express consent of the mother.  In these circumstances, the Wakefields contend that no governmental interest of the Crow Tribe would be infringed if the Circuit Court for Anne Arundel County exercised subject matter jurisdiction to determine Allie's custody.

   The Wakefields additionally claim that Congress expressly granted power to state courts to determine the status of Crow Indian children by enacting 46 Stat. 1494 [*339] (1931); that statute, the Wakefields urge, authorizes state courts to decree adoption of Crow Indians, and necessarily includes the lesser power to grant guardianship and custody.

   The Wakefields also contend that the proceeding resulting in the Crow Court's order of July 10, 1974, was a sham specifically designed to frustrate the integrity of the Maryland court where the case had been in active litigation for almost one year.  The Wakefields say that in these circumstances Gail was estopped from obtaining the Crow Court decree after having submitted herself to the jurisdiction of the Maryland court.  They contend that in any event the Crow Court decree is not entitled to full[***12] faith and credit because, among other reasons, it did not involve the right of Indian self-government. Numerous other contentions based on federal and Maryland law are advanced by the Wakefields in support of their argument that the lower court had subject matter jurisdiction and therefore erred in dismissing the petition.

   (1)

   Section 8 of Article I of the Constitution of the United States gives implicit recognition to the distinct sovereign nature of Indian tribes, and to the federal preeminence in their relationship with non-Indians; that section provides that "[t]he Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . ." The early landmark decision of Worcester v. Georgia, 6 Pet. 515, 31 U.S. 515 (1832) reinforced the principle of Indian sovereignty:

   "The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by irresistible power.  . . . The very term 'nation,' so generally applied to them, means 'a people[***13] distinct from others.' The constitution, by declaring treaties already made, as well as those to [*340]be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently, admits their rank among those powers who are capable of making treaties. The words 'treaty' and 'nation,' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and wellunderstood meaning.  We have applied them to Indians, as we have applied them to the other nations of the earth; they are applied to all in the same sense."
31 U.S. at 559-60
 
 In Worcester, a non-Indian residing on the Cherokee reservation was incarcerated pursuant to a Georgia law which required white persons so residing to register and swear allegiance to the state, and which authorized the enforcement of Georgia laws within the reservation. In striking down these state laws, Chief Justice Marshall sounded the keynote of federal preeminence:
 
"The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia [***14]can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress.  The whole intercourse between the United States and this nation [**233] is, by our constitution and laws, vested in the government of the United States.

   "The act of the state of Georgia, under which the plaintiff in error was prosecuted is, consequently void, and the judgment a nullity."
Id. at 561. (Emphasis added.)
 
In United States v. Quiver, 241 U.S. 602, 36 S. Ct. 699, 60 L. Ed. 1196 (1917), the Supreme Court held that existing federal criminal statutes did not reach adultery committed [*341] by an Indian with another Indian on an Indian reservation. It said:

   "At an early period it became the settled policy of Congress to permit the personal and domestic relations of the Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their tribal customs and laws."
241 U.S. at 603-04.

   In recent years, as Indians have increasingly participated in American society outside[***15] the reservation, the Supreme Court has modified the principles of Worcester and its progeny to permit states to act "where essential tribal relations were not involved and where the rights of Indians would not be jeopardized." Williams v. Lee, 358 U.S. 217, 219-20, 79 S. Ct. 269, 3 L.Ed.2d 251 (1959). In Williams, the Supreme Court held that Arizona courts could not exercise jurisdiction over a civil suit by a non-Indian against an Indian, where the cause of action arose out of a commercial transaction on an Indian reservation. Writing for a unanimous Court, Justice Black said:
 
"Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them."
358 U.S. at 220.
 
To like effect, see Kennerly v. District Court, 400 U.S. 423, 426-27, 91 S. Ct. 480, 27 L.Ed.2d 507 (1971); Kake Village v. Egan, 369 U.S. 60, 74-75, 82 S. Ct. 562, 7 L.Ed.2d 573 (1962).

   The Williams test was reexamined in McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S. Ct. 1257, 36 L.Ed.2d 129 (1973); it was there held that a state had no[***16] jurisdiction to impose a tax on the income of reservation Indians which was wholly derived from reservation sources.  The Court stated:
 
 "[W]e reject the suggestion that the Williams test was meant to apply in this situation.  It must be [*342] remembered that cases applying the Williams test have dealt principally with situations involving non-Indians.  . . . In these situations, both the tribe and the State could fairly claim an interest in asserting their respective jurisdictions.  The Williams test was designed to resolve this conflict by providing that the State could protect its interest up to the point where tribal self-government would be affected."
411 U.S. at 179.

   The most recent expression of Indian sovereignty by the Supreme Court appears in United States v. Mazurie, 419 U.S. 544, 95 S. Ct. 710, 42 L.Ed.2d 706 (1975), where, in the course of upholding a delegation of congressional authority to an Indian tribe over the introduction of alcoholic beverages into Indian country, the Court said:
 
"Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, . . .; they are 'a[***17] separate people' possessing 'the power of regulating their internal and social relation. . . .' . . .

   ". . . [W]hen Congress delegated its authority to control the introduction of alcoholic beverages into Indian country, it did so to entities which possess a certain degree of independent authority over matters that affect the internal and social relations of tribal life.  Clearly [**234] the distribution and use of intoxicants is just such a matter . . . ."
419 U.S. at 557.

   That the federal government has carefully guarded the exercise of state civil jurisdiction over Indians is well indicated by 25 U.S.C. § 1322 (a) (1968); that statute authorizes a state, with the consent of the Indian tribe to be affected, to exercise jurisdiction over civil causes of actions between Indians, or to which Indians are parties, arising within the areas of Indian country affected by the assumption of state jurisdiction. Maryland has not enacted, [*343] nor has the Crow Tribe consented to, enabling legislation in response to this federal statute, and there is no other federal law granting jurisdiction to the Maryland courts in matters involving custody of Indian children.  Contrary [***18]to the Wakefields' position, 46 Stat. 1494 (1931) entitled "An Act Relating to the Adoption of Minors by the Crow Indians of Montana," does not grant general adoption jurisdiction over Crow tribal members to state courts. The statute provides that in order for a person adopted by a Crow Indian to inherit from its adoptive Crow Indian parent, the adoption must occur in a state court or under tribal procedures and be approved by the chief federal official on the reservation. The Act, by its terms, is not concerned with adoptions of Crows by non-Crows.  See H. Rep. No. 2604, 71st Cong., 3d Sess. (1931); S. Rep. No. 1689, 71st Cong., 3d Sess. (1931).

   We think it plain that child-rearing is an "essential tribal relation" within the doctrine espoused by the Supreme Court in Williams v. Lee, supra.  That the Crow Tribe possesses the requisite judicial authority to protect and enforce such "essential tribal relations" is equally clear.  The 1868 Treaty of Fort Laramie (15 Stat. 649) -- the last and the most important treaty between the United States and the Crow Tribe -- provided in Article II for a Crow Indian Reservation "for the absolute and undisturbed use and occupation" of[***19] the Crow Tribe, which it described as a "territory of the United States." Article II also affirmed the power of the Crow Tribe to govern Indians living on the reservation. The only restrictions on its powers of self-government agreed to by the Crow Tribe were contained in Article VI authorizing the United States to pass laws "on all subjects connected with the government of the Indians on said reservations . . . ."

   Prior to its adoption in 1949 of a written constitution and bylaws pursuant to the Indian Reorganization Act, 48 Stat. 984 (1934), the Crow Tribe consented to the establishment of a two-tier court system as authorized by 25 Code of Federal Regulations, Part 11.  See 25 U.S.C. §§ 476-79 (1934); 25 U.S.C. § 2 (1868).  The Crow Court of Indian Offenses functions as a trial court of general civil and criminal [*344] jurisdiction; the Crow Tribal Court of Appeals is vested with jurisdiction over appeals taken from judgments of the Crow Court of Indian Offenses. n1 The Crow Court of Indian Offenses primarily hears matters involving Crow tribal members, but it also has jurisdiction over suits involving members and nonmembers brought before the court on the agreement of[***20] both parties.  25 C.F.R. § 11.22C.  The federal regulations also provide for tribal control over marriage, divorce, and tribal custom adoption.  25 C.F.R. §§ 11.27-11.30.  Federal law grants "full force and effect" to tribal customs and ordinances in the determination of civil causes adjudicated in state courts. 25 U.S.C. § 1322 (c) (1968).  Although such ordinances must be "adopted by an Indian tribe in the exercise of any authority which it may possess" and must be consistent with the state's civil law, the statute manifestly indicates the regard in which traditional, unwritten Indian custom is held.  See also 25 C.F.R. § 11.23 [**235] (Courts of Indian Offenses apply ordinances, customs, and usages of the tribe in all civil matters).  The federal regulations supplement tribal customs and usages in the area of child welfare.  See 25 C.F.R. § 11.30 (determination of paternity and support); § 11.36C (juvenile delinquency); § 11.41 (abduction); § 11.64C (failure to support dependent persons); § 11.65 (failure to send children to school); § 11.66 (contributing to the delinquency of a minor).  That the absence of written provisions in the Crow law respecting guardianship[***21] or custody of Crow children did not significantly impair the tribe's judicial capability to act in such matters is, we think, abundantly clear.

n1 The judges of these courts are appointed for four-year terms by the Commissioner of Indian Affairs, subject to confirmation by a two-thirds vote of the tribal council.  25 C.F.R. § 11.3.

   (2)

   Despite the power of the Crow tribal courts and the implications of the Williams "infringement" test, there is little case authority bearing directly on the matter of state jurisdiction over the domestic relations of Indian tribal [*345]members.  The earliest case, In re Lelah-Puc-Ka-Chee, 98 F. 429 (D. Iowa, N.D. 1899), concerned an Indian child whose non-Indian guardian had been appointed by a state court.  A writ of habeas corpus was brought on the child's behalf because, as a consequence of the guardianship, she was allegedly being forced to attend an off-reservation Indian training school against her wishes. The federal court found that the state court had[***22] no authority to appoint guardians for Indian children living on the reservation. Basing its decision on the doctrine of federal preeminence, the court said:
 
"As I understand it, the purpose of the cession by the state to the national government of the jurisdiction over the reservation and the Indians living thereon was to center in the one government the duty of taking charge of these Indians, and thereby to avoid the evils that would necessarily arise from a divided control over them.  . . ."
98 F. at 432.
 
The court made it clear that its holding was not intended to apply to ". . . individuals who may have severed their tribal relations, or who have become incorporated into the citizenship of the state in which they reside . . . ." Id. at 433. See also Peters v. Malin, 111 F. 244 (C.C.N.D. Iowa 1901).

   In two cases decided the same day, a divided Supreme Court of Washington held that state juvenile courts had no jurisdiction to declare, as "dependent," Indian children residing on a reservation. In State v. Superior Court, 57 Wash. 2d 181, 356 P. 2d 985 (1960), the children had been abandoned by their fathers, and removed by state authorities from a grossly[***23] neglectful mother. The child in In re Colwash, 57 Wash. 2d 195, 356 P. 2d 994 (1960), had been abandoned by both parents on the reservation, and had for almost two years been a ward of the state court.  No Indian claimed jurisdiction for the tribal court and no federal officer claimed jurisdiction for any federal agency during this time.  The state court, on its own motion, dismissed its [*346] custody for lack of jurisdiction and its judgment was affirmed on appeal on the ground that no state jurisdiction vested beyond that expressly granted by Congress, assented to by the Indians, or authorized by the state legislature pursuant to a federal enabling statute.

   The first reported case where a state court assumed custody jurisdiction over an Indian child was In re Cantrell, 159 Mont. 66, 495 P. 2d 179 (1972). There the Montana Supreme Court upheld state court jurisdiction of an Indian child, a member of the Fort Peck Tribes, who had been abandoned off the reservation by its parents for more than one year.  At the time jurisdiction was assumed the child was apparently domiciled on the reservation. The Montana court distinguished Williams and other Supreme Court cases[***24] on the ground that the abandonment occurred off the reservation and continued for over a year. See also United States ex rel. Cobell v. [**236] Cobell, 503 F. 2d 790 (9th Cir. 1974), a case involving the custody of an Indian child, where the federal court concluded that jurisdiction was vested in the state court because the Indian tribe had ceded jurisdiction to it.

   A federal district court in a state which, like Maryland, has no state enabling legislation to complement 25 U.S.C. § 1322 (a), held in Wisconsin Potowatomies, Etc. v. Houston, 393 F. Supp. 719 (D.W. Mich., N.D. 1973), that the state court was without jurisdiction to make an award of custody of Indian children.  There, a full-blooded Indian married a white woman.  They and their children had been living sporadically on and off the reservation. Marital problems arose, the wife and children moved off the reservation, the husband followed them, and killed his wife and himself.  The Michigan Department of Juvenile Services filed a petition in a state court for custody of the children, claiming that they were dependent and neglected, and it was granted. Approximately six months thereafter, the Indian tribe[***25] filed an action in federal court, claiming that the state court lacked jurisdiction. n2 The federal court weighed the [*347] respective interests of the state and the Indian tribe in the children, in light of the Michigan custody statute and the case law concerning Indians.  It concluded that "[i]f tribal sovereignty is to have any meaning at all at this juncture of history, it must necessarily include the right, within its own boundaries and membership, to provide for the care and upbringing of its young, a sine qua non to the preservation of its identity." 393 F. Supp. at 730. It held that the Michigan jurisdictional basis of physical presence in custody cases was not suitable because "deeper" issues were involved, and that "the only rational approach is to determine the domicile of the children at the time their physical custody was gained" by the state court. Id. at 731. The court found that the children's domicile remained on the Indian reservation and that the Indian tribe thus retained exclusive jurisdiction to determine the matter of their permanent custody since the tribe had a tradition or custom of child care and had not waived its right to assert jurisdiction. [***26]

n2 Whether the Indian tribe intervened, or attempted to intervene, in the state court proceeding cannot be ascertained from the court's opinion.

   (3)

   While it is thus clear that the cases have placed restrictions on the exercise of state jurisdiction in areas where essential tribal relations are involved and tribal rights would be jeopardized, or where state action infringed on the right of reservation Indians to make their own laws and be ruled by them, Williams v. Lee, supra, as a general proposition Indians who find themselves outside the reservation have the same rights and responsibilities, and are subject to the jurisdiction of state courts in the same manner and to the same extent as other state citizens.  Mescalero Apache Tribes v. Jones, 411 U.S. 145, 93 S. Ct. 1267, 36 L.Ed.2d 114 (1973). In holding that New Mexico could impose a gross receipts tax on a ski resort operated by an Indian tribe on off-reservation land leased from the federal government, the Supreme Court said in Mescalero Apache [***27]  Tribes:
 
"[W]e reject . . . the broad assertion that the Federal Government has exclusive jurisdiction over [*348] the Tribe for all purposes and that the State is therefore prohibited from enforcing its revenue laws against any tribal enterprise '[w]hether the enterprise is located on or off tribal land.' Generalizations on this subject have become particularly treacherous.  The conceptual clarity of Mr. Chief Justice Marshall's view in Worcester v. Georgia, . . ., has given way to more individualized treatment of particular treaties and specific federal statutes, including statehood enabling legislation, as they, taken together, affect [**237] the respective rights of States, Indians, and the Federal Government. . . . The upshot has been the repeated statements of this Court to the effect that, even on reservations, state laws may be applied unless such application would interefere with reservation self-government or would impair a right granted or reserved by federal law.  . . ."
411 U.S. at 147-48.

   In a similar spirit of tripartite balancing, other courts have begun to examine the state interests in Indian children found off the reservation. As [***28]the court said in the Cobell case (supra):
 
"The State of Montana's interest in the welfare of the Cobell children is beyond dispute.  The children were domiciled in the state and enrolled in the state public school system when Joan and Henry Cobell began their divorce proceedings. Presence, domicile and jurisdiction over the parents are well recognized bases for the assertion of jurisdiction to determine child custody. Restatement (Second) Conflict of Laws § 79 (1971) . . . ."
503 F. 2d at 794.

   The interests of the tribe and the state were also balanced in Wisconsin Potowatomies, the issue there aptly being phrased as follows:

   "If then, Indians are to be accorded such independence and sovereignty within the limits of [*349] their reservation, and if on the other hand, they subject themselves to the benefits and obligations of state law when without, the question becomes at what point the transformation from one to the other is accomplished."
393 F. Supp. at 730.

   That Maryland also has cognizable jurisdictional interests in this case is clear.  Pursuant to the Crow Court decree of November 1, 1972, Allie had been in the Wakefields' custody and[***29] lived in this State from sometime in December of 1972 until the custody petition was filed on July 16, 1973. Thereafter he was enrolled in Maryland public schools, and continued to live in the State until July 26, 1975.  The Crow Court did not have before it a petition to dissolve the guardianship granted to the Wakefields until June 11, 1974, more than seven months after the expiration of its 1972 decree.

   The traditional Maryland method of determining subject matter jurisdiction in child custody cases has been to identify the domicile of the child.  See, e.g., Miller v. Miller, 247 Md. 358, 231 A. 2d 27 (1967); Naylor v. Naylor, 217 Md. 615, 143 A. 2d 604 (1958). By Chapter 265 of the Acts of 1975 (Code, Art. 16, § 184-207) jurisdiction of Maryland courts to make child custody determinations was substantially broadened to encompass considerations other than the child's domicile. Under the provisions of that Act, which became effective on July 1, 1975 during the pendency of this appeal, jurisdiction to make a child custody determination may attach, inter alia, where a child lives within this State with a person acting as a parent for six months prior to the filing of[***30] the Maryland custody petition.  But while this Act, and Supreme Court cases such as Mescalero Apache Tribes v. Jones, supra, may illustrate Maryland's significant interests with Allie's custody, other Supreme Court cases, including particularly Williams v. Lee, supra, and federal statutes such as 25 U.S.C. § 1322 (a), supra, recognize the significant interests of Indian self-government. Weighing these competing considerations in light of the unique facts in [*350]this case, including in particular that the Crow Court had continuing jurisdiction over Allie's custody, which it last validly exercised two days prior to the Maryland custody proceeding, and taking into account the limited duration of the Wakefields' guardianship, and considering that there can be no greater threat to "essential tribal relations," and no greater infringement on the right of the Crow tribe to govern themselves [**238] than to interfere with tribal control over the custody of their children, we agree with the conclusion expressed in Wisconsin Potowatomies that in determining whether to exercise subject matter jurisdiction in such circumstances, the only rational approach is to determine[***31] the domicile of the Indian child.  By using the Indian child's domicile as the state's jurisdictional basis, the Indian tribe is afforded significant protection from losing its essential rights of child-rearing and maintenance of tribal identity.

   That the domicile of a minor child is that of the parent with whom he lives is well settled.  See Ross v. Pick, 199 Md. 341, 86 A. 2d 463 (1952). Thus, Allie's domicile prior to the tribal court decree of November 1, 1972 was clearly on the Crow Indian reservation where his mother resided.  Although the Crow Court decree of November 1, 1972 contained no express indication of the extent of the Wakefields' authority over Allie's domicile, it appears that the "special guardianship" was limited to one year.  Indeed, the special nature of the Crow Court decree was explained in expert testimony in the proceedings below by Marjorie Wilkinson, an associate judge of the Crow Court of Indian Offenses. She testified that the Tribal Court could not give custody for more than a one-year period, and that "if it's going to be longer than a year, they have to come back and renew it in the tribal court." The Wakefields never returned to the reservation[***32] with Allie during or after this period.  In addition, the guardianship petition which Gail executed specifically requested the appointment of a legal guardian for a period limited to one year.  And, as we have previously indicated, the Crow Court decree of July 10, 1974 terminating the Wakefields' special guardianship, entered [*351] by the same judge who signed the earlier decree, stated that that guardianship was for a one-year period and that the Wakefields so understood.  Although the Wakefields disputed this understanding of the duration of the November 1, 1972 decree, the special vestiges of Indian sovereignty concerning "essential tribal relations" like child-rearing and tribal identity reinforce the policy not to easily imply the guardian's authority to shift domicile to another state.  See Restatement, Conflict of Laws (2d) § 22 (2) (1969), comment h.  We think, in the circumstances of this case, that Allie's domicile remained on the reservation in Montana, and that the Maryland court properly declined to interfere with the jurisdiction over his custody already vested in the Crow Court of Indian Offenses. n3

n3 We entertain no doubt that a Maryland court should exercise jurisdiction in an emergency over a neglected or dependent Indian child found in Maryland, without regard to his domicile. See Wisconsin Potowatomies, Etc. v. Houston, 393 F. Supp. at 730; Code, Art. 16, § 186 (a) (3).

[***33]

   (4)

   The Wakefields raised three other arguments which merit discussion.  First, they contend that the facts of this case indicated that Gail abandoned Allie. In Logan v. Coup, 238 Md. 253, 258, 208 A. 2d 694 (1965), we defined child abandonment as:
 
"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."
 
Assuming that a legal abandonment would have conferred subject matter jurisdiction on the lower court, it is clear that there was no abandonment in this case.  The facts indicate little more than two weeks passed between the expiration of the tribal decree on October 31, 1973 and Gail's intervention in the Maryland custody proceeding.  At no time could her [*352] actions be construed to evince a settled purpose to relinquish all parental claims to Allie.

   [**239] The Wakefields also argued that the "Affidavit of Consent and Waiver of Notice," which Gail executed, conferred subject matter jurisdiction in the Maryland courts.  We cannot agree.  That a party may not confer subject matter jurisdiction[***34] on a court by consent is well settled.  Mayor v. Shearwater Sailing, 265 Md. 280, 288 A. 2d 887 (1972); Meyer v. Henderson, 88 Md. 585, 42 A. 241 (1899).

   The Wakefields also contend that the Supreme Court case of DeCoteau v. District County Court, 420 U.S. 425, 95 S. Ct. 1082, 43 L.Ed.2d 300 (1975), holds that state courts have the right to determine the custody of an Indian child where certain significant acts or omissions occurred off the reservation. In that case dependency proceedings had been initiated in a state court to remove an Indian child from a neglectful Indian mother.  In a habeas corpus proceeding filed in the state court, the mother alleged that the state court had no jurisdiction and requested that her child be released from the foster home in which he had been placed.  The central issue in the case was whether the lands upon which half of the acts of parental neglect took place were nonreservation lands.  In holding that these lands were not part of the reservation, the Supreme Court held that the state court had civil and criminal jurisdiction over conduct of members of the tribe occurring thereon.  The Court did not address the jurisdictional issue[***35] presented in the case, and thus the Wakefields' reliance on DeCoteau is misplaced.  See 420 U.S. at 429, n. 3.

   Since Allie's domicile remained within the boundaries of the Crow Indian reservation in Montana, we think the lower court correctly concluded that in the circumstances of this case it should not exercise subject matter jurisdiction.

   Order affirmed; costs to be paid by appellants. 

SHILKRET, Infant, etc. et al. v. THE ANNAPOLIS EMERGENCYHOSPITAL ASSOCIATION, etc. et al. 
No. 7, September Term, 1975
 
Court of Appeals of Maryland
 
276 Md. 187; 349 A.2d 245; 1975 Md. LEXIS 720; 99 A.L.R.3d1119

 October  8, 1975, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals of Maryland.  Circuit Court for  Anne Arundel  County, Wray, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed; remanded to that court with instructions to remand the case as against all appellees to the Circuit Court for Anne Arundel County for a new trial; appellees to pay costs.

CORE TERMS:  locality, skill, standard of care, specialist, profession, medical malpractice, practitioner, similar locality, specialty, infant, degree of care, accredited, doctor, belongs, certification, neighborhood, practising, training, surgeons, reasonably competent, possessed, patient, practice of medicine, general practitioner, applicable standard of care, proper standard, specialization, accreditation, defendant-physician, neurological

COUNSEL: John Wheeler Glenn, with whom were O'Connor, Preston & Glenn, P.A. on the brief, for appellants.

   John F. [***3]  King, with whom was Frederick G. Savage on the brief, for appellees.

JUDGES: Murphy, C. J., and Singley, Smith, Digges, Levine, Eldridge and O'Donnell, JJ.  Levine, J., delivered the opinion of the Court.

OPINIONBY: LEVINE

OPINION: [*188] [**246] In this appeal, which stems from a negligence action brought against several physicians and a hospital, we are asked to decide upon the proper standard of care to be applied in medical malpractice cases.

   At the trial of the case in the Circuit Court for Anne Arundel County, the court (Wray, J.) ruled that the standard to be applied was the "strict locality" rule (the standard of care exercised by physicians in the defendant's own community or locality), and since appellants, who were plaintiffs below, had failed to meet the requirements of that rule, directed a verdict for appellees.  The Court of Special Appeals affirmed that decision in an unreported per curiam opinion.  Shilkret v. Annapolis Emergency Hospital Association T/A The Anne Arundel General Hospital, et al., [No. 83, September Term, 1974, filed November 12, 1974].  We granted certiorari for the limited purpose of deciding whether the Court of Special Appeals was correct[***4] in holding "that [in Maryland] the 'Strict Locality Rule' must be applied" in medical malpractice cases.

   According to the agreed statement of facts filed in lieu of a record extract, the infant plaintiff, Mark Alan Shilkret, was born at the Anne Arundel General Hospital (Anne Arundel) on December 22, 1968, and has been continuously institutionalized since that date because of brain damage [*189] that appellants allege resulted from intracranial bleeding caused by negligence at delivery.  This was allegedly complicated by subsequent treatment rendered by appellees, the various attending physicians and the hospital.  The several physicians who are appellees here include two obstetricians who treated the mother throughout the prenatal stage and then delivered the infant, an anesthesiologist in attendance at birth, and a pediatrician at the hospital who allegedly examined the infant the day after his birth. n1

n1 Initially, six physicians were sued but the plaintiffs ultimately dismissed the action against two of them.

[***5]

   At the trial, after excerpts from the depositions of the four defendant-physicians had been admitted in evidence, argument ensued over the applicable standard of care. When the court indicated that it would apply "the strict locality rule," appellants conceded that they could not prove their case against appellees under that standard and requested leave to make a proffer of expert medical testimony which "could meet any other rule in medical negligence cases." They were afforded this opportunity and proceeded with extensive statements of what their two experts, an obstetrician-gynecologist and a neurosurgeon, would say if called as witnesses.  Each expert had an impressive curriculum vitae.

   The proffered testimony of the obstetrician-gynecologist established that Anne Arundel belongs to the American Hospital Association, one of several members of the accrediting body known as the Joint Commission on Accreditation of Hospitals. n2 It was his opinion that all hospitals belonging to this group meet a national standard in caring for obstetrical patients. At the time of the infant's birth, the witness had been chief of the obstetrical-gynecological services at the U. S. Army Hospital[***6] at Aberdeen Proving Ground.  He believed that in this branch of medicine, the standards at Anne Arundel were the same as those observed at Aberdeen and at all other accredited [*190] hospitals in the United States.  Similarly, as a member of the American College of Gynecologists and Obstetricians, and being board certified, he believed that a national standard of care applied to those with the same qualifications.  He then detailed [**247] how the failure of the four physicians and the hospital to meet the national standards of care applicable to them resulted in the injury to the plaintiff.

n2 The record reveals that Anne Arundel is accredited by the Joint Commission.

   The other expert witness whose testimony was proffered would have stated in some detail that he was employed as a neurosurgeon at the National Institutes of Health at Bethesda, Maryland, that a national standard of care is observed in the diagnosis and treatment of neurological diseases, the knowledge of which is also possessed by general[***7] practitioners, and that each of the defendants had violated what he believed to be a national standard regarding the care of newborn infants.

   Following these proffers, the trial judge granted each appellee's motion for a directed verdict.  He adhered to his previously pronounced belief that the "strict locality" standard applies in Maryland, rather than the "national" (in which the standard of care is not tied to a particular geographic locality) or "similar locality" (the standard of care observed by physicians of ordinary skill and care in either the defendant-physician's locality or in a similar community) tests urged by appellants, and therefore ruled that the latter had failed to present a sufficient case for the jury.  The Court of Special Appeals affirmed, holding that its own prior cases -- and the decisions of this Court -- compelled this result.  For reasons that follow, we reverse.

   The general principles which ordinarily govern in negligence cases also apply in medical malpractice claims.  Benson v. Mays, 245 Md. 632, 636, 227 A. 2d 220 (1967); Sub. Hospital Ass'n v. Mewhinney, 230 Md. 480, 484, 187 A. 2d 671 (1963). Therefore, as in any other case founded upon[***8] negligent conduct, the burden of proof rests upon the plaintiff in a medical malpractice case to show a lack of the requisite skill or care on the part of the defendant. Id. But, whereas the conduct of the average layman charged with [*191] negligence is evaluated in terms of the hypothetical conduct of a reasonably prudent person acting under the same or similar circumstances, the standard applied in medical malpractice cases must also take into account the specialized knowledge or skill of the defendant.  W. Prosser, Torts § 32 (4th ed. 1971); McCoid, The Care Required Of Medical Practitioners, 12 Vand. L. Rev. 549, 558 (1959). The formulation of a standard of care that is consistent with these well established tort principles, but which is fair to both the patient and his physician, has troubled the courts for the past century.

   Recently, in Raitt v. Johns Hopkins Hospital, 274 Md. 489, 499-500, 336 A. 2d 90 (1975), where we held that an expert medical witness need not necessarily reside or practice in the defendant's community to testify as to the applicable standard of care in a medical malpractice case, we intimated that despite the plethora of reported medical[***9] malpractice decisions in Maryland, this Court actually had never been confronted with the need to adopt a standard of care from among the three we have mentioned.

   In State, use of Janney v. Housekeeper, 70 Md. 162, 172, 16 A. 382 (1889), the standard of care which this Court applied was ". . . that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients . . . ." Accord, Dashiell v. Griffith, 84 Md. 363, 380-81, 35 A. 1094 (1896) ("the amount of care, skill and diligence required is not the highest or greatest, but only such as is ordinarily exercised by others in the profession generally"); cf. McClees v. Cohen, 158 Md. 60, 66, 148 A. 124 (1930). As we noted in Raitt, this rule, which makes no reference to the defendant-physician's community, was followed in this state prior to 1962.  See Lane v. Calvert, 215 Md. 457, 462, 138 A. 2d 902 (1958) (standard of care "such as is ordinarily exercised by others in the profession generally").  Indeed, it has been quoted occasionally since 1962.  Nolan v. Dillon, 261 Md. 516, 534, [**248]276 A. 2d 36 (1971) (standard of care "such as is ordinarily [***10]exercised by others in the profession generally"); Johns Hopkins Hospital v. Genda, 255 Md. 616, 620, 258 A. 2d 595 (1969) ("the standard [*192]of skill and care ordinarily exercised by surgeons in cases of this kind"), accord, Anderson v. Johns Hopkins Hosp., 260 Md. 348, 350, 272 A. 2d 372 (1971).

   This Court applied the strict locality rule for the first time in State, use of Solomon v. Fishel, 228 Md. 189, 179 A. 2d 349 (1962), the purported authority for this proposition in Maryland.  It is important to note, however, that Fishel did not turn on the standard of care issue, but dealt with the proper use of hypothetical questions addressed to medical experts and with a jury instruction involving the plaintiff's burden of proof.  Similarly, although references to the strict locality rule, citing Fishel, appear in Tempchin v. Sampson, 262 Md. 156, 277 A. 2d 67, 51 A.L.R.3d 1268 (1971), and Kruszewski v. Holz, 265 Md. 434, 290 A. 2d 534 (1972), we were not directly confronted with the standard of care issue in either of those cases.

   The only reported decision to flatly hold that the strict locality rule applies in Maryland is Dunham v. Elder,[***11] 18 Md. App. 360, 306 A. 2d 568 (1973), which we did not have occasion to review.  There, the Court of Special Appeals read Fishel to stand for the application of the stricter rule. In applying the same rule in this case, the two courts below relied heavily on Dunham, but we hasten to point out that the portents in Raitt were not yet available to them.

   In any event, we now explicitly decide for the first time this question of the standard of care to be applied in medical malpractice cases.  It should hardly come as a surprise that appellants advocate the adoption of the national standard or, alternatively, the similar locality rule.  They claim that their proof satisfied both tests.  Appellees, on the other hand, contend for the strict locality rule.

   In addressing this issue, we note at the outset that we are dealing with two types of defendants, physicians and hospitals.

   (1)

   The Standard of Care Applicable to Physicians

    The earliest traces of the strict locality rule appeared a [*193] century ago.  Smothers v. Hanks, 34 Iowa 286 (1872); Tefft v. Wilcox, 6 Kan. 46 (1870); Hathorn v. Richmond, 48 Vt. 557, 559 (1876) ("such skill as doctors in the same [***12]general neighborhood, in the same general lines of practice, ordinarily have and exercise in like cases").  It is an exclusive product of the United States; possibly because of the difference in the size of the two countries, the English courts have never developed such a principle.  Waltz, The Rise And Gradual Fall Of The Locality Rule In Medical Malpractice Litigation, 18 DePaul L. Rev. 408 (1969). The rule was unquestionably developed to protect the rural and small town practitioner, who was presumed to be less adequately informed and equipped than his big city brother.  Id. The court reasoned with what was then unassailable logic in Tefft v. Wilcox, supra, 6 Kan. at 63-64:
 
". . . In the smaller towns and country, those who practice medicine and surgery, though often possessing a thorough theoretical knowledge of the highest elements of the profession do not enjoy so great opportunities of daily observation and practical operations, where the elementary studies are brought into every day use, as those have who reside in the metropolitan towns, and though just as well informed in the elements and literature of their profession, they should not be expected to exercise[***13] that high degree of skill and practical knowledge possessed by those having greater facilities for performing and witnessing operations, and who are, or may be constantly observing the various accidents and forms of disease.  . . ."

   [**249] In short, the rationale underlying the development of the strict locality rule a century ago was grounded in the manifest inequality existing in that day between physicians practicing in large urban centers and those practicing in remote rural areas.

   Ultimately, the rule came under sharp attack on two grounds.  First, "[i]t effectively immunized from malpractice liability any doctor who happened to be the sole practitioner [*194] in his community.  He could be treating bone fractures by the application of wet grape leaves and yet remain beyond the criticism of more enlightened practitioners from other communities." Waltz, supra at 411.  Secondly, a "conspiracy of silence" in the plaintiff's locality could effectively preclude any possibility of obtaining expert medical testimony.  Note, 40 Fordham L. Rev. 435, 438 (1971). n3

n3 This problem, of course, has been obviated in Maryland by our decision in Raitt.

[***14]

   Whatever may have justified the strict locality rule fifty or a hundred years ago, it cannot be reconciled with the realities of medical practice today. n4 "New techniques and discoveries are available to all doctors within a short period of time through medical journals, closed circuit television presentations, special radio networks for doctors, tape recorded digests of medical literature, and current correspondence courses." Note, An Evaluation Of Changes In The Medical Standard Of Care, 23 Vand. L. Rev. 729, 732 (1970). More importantly, the quality of medical school training itself has improved dramatically in the last century.  Where early medical education consisted of a course of lectures over a period of six months, which was supplemented by apprenticeships with doctors who had even less formal education, there now exists a national accrediting system which has contributed to the standardization of medical schools throughout the country.  Id. n. 16.

n4 The absurdity of coupling the standard of care with the doctor's community is aptly illustrated in Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968), in which the Supreme Judicial Court of Massachusetts overruled its earlier decision in Small v. Howard, 128 Mass. 131, 35 Am. Rep. 363 (1880), containing one of the first enunciations of the similar locality rule.  In Brune , which involved an act of alleged malpractice in the City of New Bedford, slightly more than 50 miles from Boston, the trial judge had instructed the jury: "'. . . If, in a given case, it were determined by a jury that the ability and skill of the physician in New Bedford were fifty percent inferior to that which existed in Boston, a defendant in New Bedford would be required to measure up to the standard of skill and competence and ability that is ordinarily found by physicians in New Bedford.'" 235 N.E.2d at 795.

[***15]

   A distinct minority of states, however, cling to the strict locality rule. Horton v. Vickers, 142 Conn. 105, 111 A. 2d 675, 679 (1955) ("in the same general neighborhood"), accord, [*195] Levett v. Etkind, 158 Conn. 567, 265 A. 2d 70, 41 A.L.R.3d 1343 (1969); Lockart v. Maclean, 77 Nev. 210, 361 P. 2d 670 (1961); Gandara v. Wilson, 85 N. M. 161, 509 P. 2d 1356, 1358 (1973) ("recognized standards of medical practice in the community"); see Bertrand v. Aetna Casualty & Surety Company, 306 So. 2d 343, 347 (La. App. 1975) ("in the same community or locality").  Nevertheless, recognizing the significant developments which have occurred in the training and practice of medicine, and the population shifts which have marked the increased urbanization of our society, a majority of American courts have now abandoned the strict locality rule as being too narrow.  We, too, conclude that it can be sustained no longer given the current state of medical science.

   We have noted that one of the earliest applications of the similar locality rule occurred in Small v. Howard, supra, 128 Mass. at 136, where, essentially for the same reasons that have traditionally undergirded[***16] the strict locality rule, the court enunciated as the standard: "'that skill only which physicians and surgeons of ordinary ability and skill, practising in similar localities, with opportunities for no larger experience, ordinarily possess'"; thus the defendant "'was not bound to possess [**250] that high degree of art and skill possessed by eminent surgeons practising in large cities, and making a specialty of the practice of surgery.'"

   A plurality, if not a majority, of states apply the similar locality rule. Sinz v. Owens, 33 Cal. 2d 749, 205 P. 2d 3, 5, 8 A.L.R.2d 757 (1949) ("'same locality' or 'vicinity'"); McGulpin v. Bessmer, 241 Iowa 1119, 43 N.W.2d 121, 126 (1950) ("under like circumstances and in like localities"); Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 510 P. 2d 190, 195 (1973) ("'in the community where he practices or similar communities'"); Mecham v. McLeay, 193 Neb. 457, 227 N.W.2d 829, 832 (1975) ("in the same neighborhood and in similar communities"); Wiggins v. Piver, 276 N. C. 134, 171 S.E.2d 393 (1970); Runyon v. Reid, 510 P. 2d 943, 950 (Okla. 1973) ("by similar specialist . . . in the same or similar communities"); [***17] Incollingo v. Ewing, 444 Pa. 263, 282 A. 2d 206, 214 n. 5a (1971) ("in the same or a [*196] similar locality or community"); Hundley v. Martinez, 151 W. Va. 977, 158 S.E.2d 159, 169 (1967); see also Williams v. Chamberlain, 316 S.W.2d 505, 510 (Mo. 1958); Cavallaro v. Sharp, 84 R. I. 67, 121 A. 2d 669, 672 (1956).

   The similar locality rule answers some of the criticism aimed at the strict locality standard by enabling the plaintiff to obtain expert witnesses from different communities, thus reducing the likelihood of their acquaintance with the defendant.  It does not, however, effectively alleviate the other potential problem, a low standard of care in some of the smaller communities, because the standard in similar communities is apt to be the same.  Another criticism leveled at the similar locality rule is the difficulty which arises in defining a "similar" locality. n5 For these reasons, the similar locality rule is regarded as no more than a slight improvement over the stricter standard.

n5 One standard which has been applied is geographic proximity between communities, which retains much of the "same" locality flavor.  Other courts have considered socio-economic factors such as population, type of economy, size of city, and income of inhabitants.  Most courts applying this standard, however, have adopted the view that "similar" locality should be defined in terms of medical factors such as the existence of research and laboratory facilities, medical schools, teaching hospitals and modern equipment in the localities to be compared.  The commentators agree that this is the most logical application of the rule when measured against a major reason for its adoption -- the availability of resources which will enable the physician to maintain the standard of his practice.  See generally Note, 40 Fordham L. Rev. 435, 439 (1971); Note, Medical Malpractice -- Expert Testimony, 60 Nw. U. L. Rev. 834, 838 (1966); Note, Medical Specialties And The Locality Rule, 14 Stan. L. Rev. 884, 890 (1962).

[***18]

   These deficiencies in the locality rules and the increasing emphasis on the availability of medical facilities have led some courts to dilute the rules by extending geographical boundaries to include those centers that are readily accessible for appropriate treatment.  See generally Sinz v. Owens, supra; Gist v. French, 136 Cal.App.2d 247, 288 P. 2d 1003 (1955); McGulpin v. Bessmer, supra; Josselyn v. Dearborn, 143 Me. 328, 62 A. 2d 174 (1948); Viita v. Dolan, 132 Minn. 128, 155 N. W. 1077 (1916); Tvedt v. Haugen, 70 N. D. 338, 294 N. W. 183, 132 A.L.R. 379 (1940). This expanded rule, expressed in terms of "medical neighborhood" or "medical locality," has paved the way for the national standard.  In any event, the trend continues away from standards which rest solely on geographic considerations.

    [*197] Ever-increasing emphasis on medical specialization has accelerated the erosion of the locality rules and the concomitant emergence of the so-called national standard. n6 Even within the framework of [**251] the locality rules, it has been generally accepted that where a physician holds himself out as a specialist, he is held to a higher standard of knowledge[***19] and skill than a general practitioner. Some courts, therefore, have abandoned the locality rules for a national standard only as to specialists. Kronke v. Danielson, 108 Ariz. 400, 499 P. 2d 156, 159 (1972) ("the standard of care required of physicians in the same specialty practiced by the defendant"); Brune v. Belinkoff, supra, 235 N.E.2d at 798 ("a specialist should be held to the standard of care and skill of the average member of the profession practising the specialty, taking into account the advances in the profession"); n7 Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788, 791 (1970) ("that of a reasonable specialist practicing medicine in the light of present day scientific knowledge"); Christy v. Saliterman, 288 Minn. 144, 179 N.W.2d 288 (1970); see Belk v. Schweizer, 268 N. C. 50, 149 S.E.2d 565, 21 A.L.R.3d 944 (1966). This is consistent with the position of the American Law Institute which otherwise adopts the similar locality rule. n8

n6 The editorial board of one law review conducted a survey to determine the extent to which the practice of medicine by certified specialists within each of the 19 specialties recognized by the American Medical Association is similar throughout the country.  On the basis of the existence of standardized requirements for certification, subscription to medical specialty journals, specialist societies, and statements from national specialty boards, it was concluded that the practice of medicine by certified specialists within most medical specialties is similar throughout the country.  Note, Medical Specialties And The Locality Rule, 14 Stan. L. Rev. 884, 887-89 (1962).

[***20] 

n7 Though it was there dealing with a specialist, the court also stated in dictum:

   "The proper standard is whether the physician, if a general practitioner, has exercised the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession." 235 N.E.2d at 798.

   We read this case to stand for the same rule as applied to both specialists and general practitioners.

n8 
"Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities." Restatement (Second) of Torts § 299 A (1965).

   Comment d provides:
 
   "An actor undertaking to render services may represent that he has superior skill or knowledge, beyond that common to his profession or trade.  . . . Thus a physician who holds himself out as a specialist in certain types of practice is required to have the skill and knowledge common to other specialists. . . ."

[***21]

   [*198] Were we to adopt a standard tied to locality for specialists, we would clearly be ignoring the realities of medical life.  As we have indicated, the various specialties have established uniform requirements for certification. The national boards dictate the length of residency training, subjects to be covered, and the examinations given to the candidates for certification. Since the medical profession itself recognizes national standards for specialists that are not determined by geography, the law should follow suit.

   The courts in another group of cases, however, have gone further, and have adopted this same standard of care -- one which is not governed by the locality of the defendant -- for all physicians regardless of whether they are specialists or not.  Blair v. Eblen, 461 S.W.2d 370, 372-73 (Ky. 1970) ("that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances"); Pederson v. Dumouchel, 72 Wash. 2d 73, 431 P. 2d 973, 978, 31 A.L.R.3d 1100 (1967) ("that degree of care and skill which is expected of the average practitioner in the class to which[***22] he belongs, acting in the same or similar circumstances"), n9 accord, Douglas v. Bussabarger, 73 Wash. 2d 476, [**252] 438 P. 2d 829, 837-38 (1968); Shier v. Freedman, 58 Wis. 2d 269, 206 N.W.2d 166, 174 (1973) ("that degree of care and skill which is exercised by the average practitioner in the class to which he belongs, acting in the same or similar circumstances").

n9 The Washington court did go on to add: ". . . This standard of care is that established in an area coextensive with the medical and professional means available in those centers that are readily accessible for appropriate treatment of the patient. . . ." 431 P. 2d at 978. We read this to mean that accessibility of medical centers is one of the factors to be considered in applying the standard of care.

   [*199] We agree with these courts that justification for the locality rules no longer exists.  The modern physician bears little resemblance to his predecessors.  As we have indicated at length, the medical schools of yesterday [***23]could not possibly compare with the accredited institutions of today, many of which are associated with teaching hospitals.  But the contrast merely begins at that point in the medical career: vastly superior postgraduate training, the dynamic impact of modern communications and transportation, the proliferation of medical literature, frequent seminars and conferences on a variety of professional subjects, and the growing availability of modern clinical facilities are but some of the developments in the medical profession which combine to produce contemporary standards that are not only much higher than they were just a few short years ago, but also are national in scope.

   In sum, the traditional locality rules no longer fit the present-day medical malpractice case.

   Moreover, while a specialist may be held to greater skill and knowledge in his particular field than would be required of a general practitioner under the same or similar circumstances, one standard can be fashioned for all physicians as the Kentucky, Washington and Wisconsin courts have carefully demonstrated. To that extent, there is no valid basis for distinguishing between general practitioners and specialists in[***24] applying standards of care. Although national board certification in the specialties has contributed significantly to standardization on a nationwide scale, all of the other reasons which justify a national standard of care apply with equal validity to general practitioners.

   Nevertheless, in one important respect there is even a difference of opinion among those three courts and the Massachusetts court.  As we noted earlier, the Massachusetts court articulated two standards, one for the "average qualified practitioner" and the other for the "average member of the profession practising [a] specialty." Brune v. Belinkoff, supra, 235 N.E.2d at 798 (emphasis added). Similarly, the Washington court framed its standard in [*200] terms of "an average, competent practitioner," Pederson v. Dumouchel, 431 P. 2d at 978 (emphasis added), and the Wisconsin court postulated its rule for the "average practitioner," Shier v. Freedman, supra, 206 N.W.2d at 174 (emphasis added). The Kentucky Court of Appeals, however, substituted "the term 'reasonably competent' for the term 'average' used in the Washington Court's definition." Blair v. Eblen, supra, 461 S.W.2d[***25] at 373.

   In eschewing the term "average," the Kentucky court sided with the American Law Institute, which, in comment e to Restatement (Second) of Torts § 299 A (1965), states:
 
". . . [The standard] is not that of the most highly skilled, nor is it that of the average member of the profession . . ., since those who have less than median or average skill may still be competent and qualified.  Half of the physicians of America do not automatically become negligent in practicing medicine at all, merely because their skill is less than the professional average.  On the other hand, the standard is not that of the charlatan, the quack, the unqualified or incompetent individual who has succeeded in entering the profession . . . ."
 
Or, as one learned scholar aptly stated, ". . . a true 'average' would involve an uneasy aggregation of the best and the worst, the experienced and the inexperienced, [**253] the quack and the specializing medical doctor. It has never been suggested that the law strikes the average from so diverse a grouping." Waltz, supra at 409 n.1.  Although "average" is probably expressed in the sense of "ordinary," this meaning may not be conveyed[***26] to the jury despite an explicit instruction on the point.  McCoid, supra at 559.

   We align ourselves with the Kentucky court and hold that a physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances.  Under this standard, advances in the profession, availability of facilities, specialization or general practice, proximity of specialists [*201] and special facilities, together with all other relevant considerations, are to be taken into account.

   (2)

   The Standard of Care Applicable to Hospitals

   In reviewing some of our medical malpractice decisions earlier, we intimated that neither of the locality rules has been applied in Maryland where a hospital has been the defendant.  Anderson v. Johns Hopkins Hosp., Johns Hopkins Hospital v. Genda, both supra.  Equally significant is the absence in our prior cases of any distinction between physicians and hospitals regarding the applicable standard of care. As the court stated in Pederson v. Dumouchel, supra, 431 P. 2d at 978, "[m]uch that we have said [in articulating the[***27] standard of care applicable to physicians] also applies to the jury instructions given concerning hospitals.  They, too, are members of national organizations and subject to accreditation." Courts elsewhere have tended to apply the same standards to hospitals that they apply to physicians.  Avey v. St. Francis Hosp. , 201 Kan. 687, 442 P. 2d 1013, 1022 (1968) ("similar communities"); Carrigan v. Roman Catholic Bishop, 104 N. H. 73, 178 A. 2d 502, 503 (1962) ("same or similar localities"); cf. Darling v. Charleston Community Memorial Hosp., 50 Ill.App.2d 253, 200 N.E.2d 149 (1964), aff'd, 33 Ill. 2d 326, 211 N.E.2d 253, 14 A.L.R.3d 860 (1965), cert. denied, 382 U.S. 946, 86 Sup. Ct. 1204, 16 L.Ed.2d 209 (1966); see generally Note, Non-Resident Expert Testimony On Local Hospital Standards. 18 Clev. St. L. Rev. 493 (1969).

   The only case, of which we are aware, to make a distinction of any kind between physicians and hospitals is Duling v. Bluefield Sanitarium, Inc., 149 W. Va. 567, 142 S.E.2d 754, 764 (1965). There, the court, although adhering to the similar locality rule in medical malpractice cases, held that an action brought against a hospital because[***28] of a nurse's carelessness, as distinguished from that of a physician, is founded solely on negligence and want of due care.  Hence, the proper standard was held to be "reasonable care."

   [*202] In Dickinson v. Mailliard, 175 N.W.2d 588, 596, 36 A.L.R.3d 425 (Iowa 1970), the court, in adopting as a standard "that which obtains in hospitals generally under similar circumstances," stated:
 
". . . It is doubtful today if there is any substantial difference from one locality to another in the type of hospital services rendered.  Hospitals must now be licensed and accredited. They are subject to statutory regulation.  In order to obtain approval they must meet certain standard requirements.  . . . It is no longer justifiable, if indeed it ever was, to limit a hospital's liability to that degree of care which is customarily practiced in its own community.  . . . [M]any communities have only one hospital.  Adherence to such a rule, then, means the hospital whose conduct is assailed is to be measured only by standards which it has set for itself.  There is no other hospital to which it may be compared."
 
[**254] We think the same reasoning is apposite here.  Hospitals[***29] in general, and Anne Arundel in particular, are accredited by the Joint Commission on Accreditation. This group establishes national standards to which all hospitals seeking accreditation must conform.  In addition, hospitals in Maryland are subject to a rigorous regulatory scheme which promotes statewide standards.  See Maryland Code (1957, 1971 Repl. Vol.) Art. 43, §§ 556 et. seq. These factors, together with much of what we said earlier regarding physicians, warrant the adoption of a standard of care for hospitals which conforms to that applied in cases against physicians.

   We hold, therefore, that a hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances.  As in cases brought against physicians, advances in the profession, availability of special facilities and specialists, together with all other relevant considerations, are to be taken into account.

   Here, there was evidence that there is a national standard [*203] of care for accredited hospitals in the prenatal, intrapartum and perinatal periods of pregnancy.  Similarly, the evidence proffered by appellants showed national [***30]standards of care for child delivery, infant care, and the treatment of neurological problems generally, and the measure of vital functions specifically, that are observed by specialists and general practitioners alike. Under our holdings here, this evidence was sufficient to take the standard of care issue to the jury as to all of the appellees.  Our review, as we observed at the outset, has been limited to this question.  Whether the evidence was sufficient to establish a failure to comply with the applicable standards of care, and, if so, whether said failure directly caused the injuries sustained by the infant plaintiff, are questions which we do not reach here.

   Judgment of the Court of Special Appeals reversed; remanded to that court with instructions to remand the case as against all appellees to the Circuit Court for Anne Arundel County for a new trial; appellees to pay costs. 

HARDESTY et al. v. STATE ROADS COMMISSION OF THE STATEHIGHWAY ADMINISTRATION 
No. 241, September Term, 1974
 
Court of Appeals of Maryland
 
276 Md. 25; 343 A.2d 884; 1975 Md. LEXIS 710

 September  8, 1975, Decided

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

DISPOSITION: Judgment reversed; case remanded for further proceedings; costs to be paid by the appellee.

CORE TERMS:  easement, scenic, condemnation, enjoyment, abandon, highway, plat, condemnees, condemnation proceedings, appropriation, condemnation proceeding, negative easement, property rights, right to erect, appropriated, perpetual, condemned, fences, snow, taking of property, recordation, landowner, finalized, Maryland Rule U26, constitutional sense, physical taking, fair value, condemning, seizure, destroy

COUNSEL: Ellen Luff, with whom were Harry C. Blumenthal, Jerome T. May and Blumenthal, Goldsborough & May on the brief, for appellants. [***4]

   Richard T. Brice, IV, with whom were Francis B. Burch, Attorney General, and Nolan H. Rogers, Special Assistant Attorney General, on the brief, for appellee. 

JUDGES: Murphy, C. J., and Singley, Smith, Digges, Levine, Eldridge and O'Donnell, JJ.  Murphy, C. J., delivered the opinion of the Court.

OPINIONBY: MURPHY

OPINION: [*27] [**885] On August 1, 1973, the State Roads Commission of the State Highway Administration (the Commission) filed a petition for land acquisition in the Circuit Court for Anne Arundel County pursuant to powers vested in it under § 40B of Article III of the Constitution of Maryland and Maryland Code (1969 Repl. Vol.) Art. 89B, §§ 10-20. n1 The petition stated: "This is not a formal condemnation petition and does not require an answer." The petition recited that it was necessary for the Commission to acquire the property and rights of W. Russell Hardesty et al. (Hardesty or condemnees) in 4.4 acres of land located on United States Routes 50 and 301, as shown on Commission Plat No. 36325 filed in the proceedings, for the following purpose:
 
"[F]or Perpetual Easement for Special Purpose of Scenic Easement . . . Together with any and all right[***5] of ingress or egress across the lines which are designated 'Right of Way Line of Through Highway' except by means of such public road [*28] connections as the Commission may construct or permit to be constructed; Together with the perpetual right to erect and maintain snow fences between October 1st and April 1st of each and every year, within one hundred feet of the land condemned."
 
In accordance with the provisions of § 13 of Art. 89B, the Commission deposited a check with the court for $23,600, which it estimated to be the fair value of the property rights to be acquired.

n1 Section 40B provides that if in the judgment of the Commission, the State needs a property for highway purposes, the General Assembly may by law provide that "such property may be taken immediately" upon payment to the owner or into court of its estimated value, provided the law also requires the payment of any subsequent additional award by a jury.  Sections 10-20 of Art. 89B were adopted in implementation of the constitutional provision.

[***6]

   [**886] The parties being unable to agree on the fair value of the property, the Commission referred the case on January 18, 1974 to the County Board of Property Review, pursuant to the provisions of Art. 89B, § 20. Thereafter, on March 5, 1974, Hardesty filed a petition with the court seeking to withdraw the money deposited by the Commission (with interest), as authorized by Art. 89B, § 14.  The court granted the petition upon the express condition that the condemnees "pay back to the said Commission the difference between the said sum and the final award, if said final award be less than the sum heretofore paid into Court.  . . ." On June 26, 1974, the Commission, pursuant to Code (1974) Real Property Article, § 12-109 and Maryland Rule U26 filed an election to abandon condemnation proceedings, and asked the court to order that Hardesty return $23,826.17 to the State because "[n]o taking of the property sought to be condemned has yet occurred nor will it ever occur." Hardesty filed an answer to the Commission's election, urging that the Commission not be permitted to abandon condemnation; the condemnees asserted that "a taking has already occurred and plaintiff has possession[***7] of the property and has appropriated it to the public purposes of the plaintiff by virtue of the fact that the taking was for a scenic easement for Maryland Route 50, the benefit of which the public has already enjoyed."

   A hearing was held before the court on August 29, 1974.  It was stipulated between counsel that "there has been no physical appropriation, no physical taking of the property" and that "this scenic easement was a situation in which the [*29] State did not intend to go down and knock down trees so you can see a lake, the scenic easement was for the purpose of leaving the trees there." No other evidence was adduced by either side.  Counsel for the Commission argued that because there had been no physical appropriation, entry upon, or seizure of the property, no taking had occurred.  He maintained that the rights of the parties with respect to the land "have not changed one iota" and that title to the property had not passed.  Counsel for Hardesty argued that it was the State's purpose in seeking a perpetual scenic easement to maintain the property "all wooded and hilly"; that the State's purpose was "to keep the woods there, keep the hills as they are so it will[***8] be nice and beautiful"; that during the period that the Commission plat was on record, title to the Hardesty property was affected and the condemnees "couldn't have done anything, in contradiction to the scenic easement"; that by its condemnation proceeding, the Commission had "deprived the owner of the right to build a high rise or anything he wants"; that the basic purpose of the Commission in acquiring the scenic easement "was so that people can look at what is actually there.  . . . They take possession . . . when they do this, and at that moment, when they file the plat and file the case, that deprives the owner of the right to make a contract." Hardesty maintained that physical possession is never involved in the taking of a scenic easement. The court concluded that no taking had occurred; it therefore permitted the Commission to abandon the condemnation proceedings and directed that Hardesty return the sum of $23,476.17 to the Commission. n2 This appeal followed.

n2 The original amount deposited plus interest, less attorney's fees.

[***9]

   Under Real Property Article, § 12-109 (d) and Maryland Rule U26, a condemnation proceeding may not be abandoned after "taking has occurred." Section 12-102 of that Article provides that property is deemed to be taken in cases where the condemning authority is authorized to take the property before trial when "the required payment has been made to the defendant or into court, any required security has been given, and the plaintiff has taken possession of the property [*30] and actually and [**887] lawfully appropriated it to the public purposes of the plaintiff."

   In initiating the condemnation proceedings in this case, the Commission acted under §§ 236-238 of Art. 89B (Subtitle "Highway Beautification"), which authorizes it to acquire, among other things, strips of land necessary for the restoration, preservation and enhancement of scenic beauty within and adjacent to federal-aid highways of this State.  The concept of a scenic easement according to Kamrowski v. State, 31 Wis. 2d 256, 263, 142 N.W.2d 793, 796 (1966) "springs from the idea that there is enjoyment and recreation for the travelling public in viewing a relatively unspoiled natural landscape . . . ." One [***10]federal statute defines a scenic easement as "the right to control the use of land . . . for the purpose of protecting the scenic view . . . but such control shall not affect, without the owner's consent, any regular use exercised prior to the acquisition of the easement." 16 U.S.C.A. § 1286 (c) (1970).  A scenic easement has otherwise been characterized as a negative easement or servitude precluding the owner of land from doing an act which, if no easement existed, he would be entitled to do:

   "Negative easements involve the payment to the landowner for a termination or extinguishment of a portion of his property rights. Scenic easements are an example: the landowner is paid by the state to terminate his right to erect structures or buildings or otherwise use his land so as to destroy the view from the highway. The state obtains no rights to enter upon the land, either for its departments or for the public at large.  The state obtains only the right to enforce the negative easement through court action."
Comment, Progress and Problems in Wisconsin's Scenic and Conservation Easement Program, 1965 Wis. L. Rev. 352, 360 (1965).

   Hardesty argues on appeal that the occupancy[***11] or possession of a scenic easement is visual, not physical; that it is a negative easement prohibiting the landowner from [*31] altering the scenic nature of his land. He contends that because the scenic easement condemned by the Commission was along a well-traveled highway and the condemnees refrained for 10 months from taking any action inconsistent with the scenic easement, the property was possessed by the public and appropriated to the purposes of the Commission.  The Commission having made the required payment into court, and the condemnees having properly withdrawn the sum deposited, the condemnees maintain that a taking has occurred and that the easement cannot now be abandoned.  The Commission argues that it has not taken Hardesty's property within the contemplation of § 12-102 of the Real Property Article because it has not "taken possession . . . [of it] and actually and lawfully appropriated it to the [Commission's] public purposes . . . ." The Commission says that physical entry must be shown before a taking will be decreed and that filing of the plat and posting of money with the court do not constitute a taking.

   That there can be a taking of property giving[***12] rise to a vested right of compensation without formally divesting the owner of his title is well settled.  State Roads Comm'n v. Orleans, 239 Md. 368, 211 A. 2d 715 (1965); LaFontaine's Heirs v. LaFontaine's Heirs, 205 Md. 311, 107 A. 2d 653 (1954). That a taking of property may occur without actual physical appropriation, entry or seizure is likewise clear.  Arnold v. Prince George's Co., 270 Md. 285, 294, 311 A. 2d 223, 227-28 (1973); see also Leet v. Montgomery County, 264 Md. 606, 616, 287 A. 2d 491, 497 (1972) and Stevens v. City of Salisbury, 240 Md. 556, 566, 214 A. 2d 775, 780 (1965).

   [**888] As noted in Nichols, Eminent Domain § 6.1 (1) (3rd ed. 1970):

   "Constitutional rights rest on substance, not on form, and the liability to pay compensation for property taken cannot be evaded by leaving the title in the owner, while depriving him of the beneficial use of the property.  . . . a legal restriction upon the use of land may constitute a taking, although the title is unaffected and the land is physically untouched, and the same is true when the owner's [*32] enjoyment of the land is physically interfered with, although his legal rights remain[***13] unimpaired.  However, just how severe the interference with the owner's enjoyment of his property must be to constitute a taking . . . is not a question which can be answered in such a way as to furnish a concise rule readily applicable to all cases likely to arise.  . . ."
 
In stating that the weight of authority does not support the view that a physical appropriation is prerequisite to a "taking" of property in the constitutional sense, Nichols says at § 6.3:
 
"The modern, prevailing view is that any substantial interference with private property which destroys or lessens its value (or by which the owner's right to its use or enjoyment is in any substantial degree abridged or destroyed) is, in fact and in law, a 'taking' in the constitutional sense, to the extent of the damages suffered, even though the title and possession of the owner remains undisturbed."

   We observed in Stevens v. City of Salisbury, supra, that not every injury to property involves a taking, that compensation for a taking may be exacted only for severe interferences which are tantamount to deprivations of use or enjoyment, and that whether there has been a taking is dependent on the facts [***14]of each case.  See also Mayor & City Council of Baltimore v. Himmelfarb, 172 Md. 628, 192 A. 595 (1937); Mayor & City Council of Baltimore v. Baltimore Marine Works, Inc., 152 Md. 367, 136 A. 829 (1927). Our predecessors held in LaFontaine's Heirs, 205 Md. at 320-21 that in determining the time of taking in immediate entry cases under § 40B of Article III of the Constitution of Maryland "the taking occurs when there is an actual appropriation of the land to highway purposes." It was there said:
 
"The Constitutional prohibition against the taking of private property means: '* * * taking the [*33] property from the owner, and actually applying it to the use of the public.  It does not mean the preliminary measures necessary in such cases.' Steuart v. Baltimore, 7 Md. 500, 516." (Emphasis in Steuart)
 
To like effect, see Concannon v. State Roads Comm., 231 Md. 87, 188 A. 2d 700 (1963).

   In setting forth criteria governing determination of when property is deemed to have been taken by the condemning authority in "quick-take" cases, Section 12-102 of the Real Property Article makes no distinction between affirmative and negative[***15] easements. Nor does Hardesty suggest that because a negative easement is here involved, the taking occurred simultaneously with the filing of the so-called informal condemnation petition and accompanying plat; that question, therefore, is not now before us.  We note, however, that in the usual case, under the provisions of § 12-102 the mere posting of money in court does not constitute a taking since the right to abandon a condemnation proceeding ceases only when "the authorized appropriation of land for public use actually has taken place." LaFontaine's Heirs, supra, at 319. For similar reasons, the filing of a finalized plat under § 14 of Art. 89B would not in [**889] itself ordinarily constitute a taking of property. It has been held that the recordation of the finalized plat freezes the value of the property as of the date of recordation; it is not a taking and does not determine when, or whether, possession of property is taken in a constitutional sense. Pumphrey v. State Roads Comm., 260 Md. 633, 273 A. 2d 81 (1971); State Roads Comm. v. Orleans, supra; LaFontaine's Heirs, supra. For an extensive collection of cases citing the general rule that mere filing[***16] of a plat in anticipation of a public improvement does not constitute a taking, or damage to the property affected, see Annot., 37 A.L.R.3d 127 (1971).

   It is the manifest purpose of the early entry statutes to permit the Commission to invoke an immediate right to possess or appropriate property for highway purposes.  As we noted in State Roads Commission v. Orleans, supra, "in [*34] almost every [such] case" the Legislature contemplated that "the physical taking would either be simultaneous with the recording [of the finalized plat] . . . or follow so shortly that there would be little likelihood of any rise in value between the date of recordation and the date of the taking." 239 Md. at 377. The petition filed by the Commission in the present case sought to condemn a scenic easement, together with the right of ingress or egress across the right-of-way lines along the 4.4 acres of the property fronting on the highway, and the right to erect snow fences within 100 feet of the land condemned. As previously indicated, the Commission's petition to abandon the condemnation proceeding alleged simply that no taking had occurred. The only evidence adduced at the hearing[***17] in support of the Commission's petition to abandon consisted of a stipulation that "there had been no physical appropriation, no physical taking of the property" and that the scenic easement to be acquired was "for the purpose of leaving the trees there." Considering the position taken by the Commission that physical entry upon the property was required before a taking could be mandated, the skimpy evidentiary record before us, the character of the property interest at stake, the immediate entry procedure employed by the Commission in undertaking to condemn the property, the fact that the public enjoyment of the scenic beauty of the property was immediate, the length of time involved before the Commission elected to abandon condemnation, and the legal restrictions placed upon the property during the pendency of the condemnation proceedings, we conclude that Hardesty was deprived of the full use and enjoyment of his property by the Commission's action to a degree sufficient to constitute a taking within the contemplation of § 12-102 of the Real Property Article. n3 See Stevens v. City of Salisbury, supra. The Commission cannot, therefore, totally abandon the condemnation proceedings[***18] it initiated on August 1, 1973.  [*35] It may choose to await the award of the Board of Property Review, to which the case was referred on January 18, 1974, or, after complying with the provisions of Maryland Rule U27 f, file a formal condemnation petition in compliance with Rule U6. n4 Although the Commission may not [**890] be precluded in the circumstances of this case from undertaking to amend the extent of its taking of Hardesty's property rights (see Rule U26) to a scenic easement of less than perpetual duration, it will in any event be required to pay compensation for the fair value of those property rights heretofore actually taken for public purposes.

n3 The Commission suggests that no taking occurred because it did not exercise its right to erect snow fences within 100 feet of the property.  There is no evidence in the record, one way or the other, showing whether the Commission exercised this right.  Assuming it did not, however, we would not thereby be persuaded that no taking of the scenic easement occurred.

n4 Rule U27 f authorizes the Commission to compel the Board to relinquish jurisdiction over a case referred to it where, as here, the Board did not hear the matter within three months after the filing of the notice of referral.  If the Commission takes such action, it is obliged under Rule U27 g 2, within thirty days, to "institute a proceeding for condemnation by filing in court a petition for condemnation." Rule U6 outlines the essential averments to be made in a formal condemnation petition, and Rule U9 sets forth requirements pertaining to the form and content of the condemnee's Answer.

[***19]

   Judgment reversed; case remanded for further proceedings; costs to be paid by the appellee. 

ANNE ARUNDEL COUNTY, MARYLAND v. NORAIR ENGINEERINGCORPORATION 
No. 239, September Term, 1974
 
Court of Appeals of Maryland
 
275 Md. 480; 341 A.2d 287; 1975 Md. LEXIS 981

 July  8, 1975, Decided

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

DISPOSITION: Judgment affirmed in part and reversed in part and case remanded to the Circuit Court for Anne Arundel County for further proceedings consistent with this opinion; one-half costs to be paid by Anne Arundel County and one-half by Norair Engineering Corporation.

CORE TERMS:  pipe, liquidated damages, specification, contractor, pile, feet, outfall, construction contract, declaration, discovery, repair, top, sufficient notice, Maryland Rule, matter of law, longitudinal, completion, elevation, engineer, chamber, station, stable, laying, bottom, pair, ascertainment, required to perform, breach of contract, contract price, extra work

COUNSEL: John M. Court, Assistant County Solicitor, with whom were Paul F. Borden, County Solicitor, Michael R. Roblyer, County Solicitor, and Charles Fred Delavan, Assistant County Solicitor, on the brief, for appellant.

   Jerome T. May, with whom were David R. Cuttler and Blumenthal, Goldsborough & May on the brief, for appellee.

JUDGES: Murphy, C. J., and Singley, Smith, Digges, Levine, Eldridge and O'Donnell, JJ.  Smith, J., delivered the opinion of the Court.

OPINIONBY: SMITH

OPINION: [*482] [**288] Appellee, Norair Engineering Corporation (Norair), contracted with appellant, Anne Arundel County (the County), to construct in the County the Broadneck Wastewater Treatment Plant.  After construction was well[***4] under way a large outfall line extending from a chlorine contact chamber to a manhole structure near the shoreline of the Chesapeake Bay was discovered to have pulled apart or to have moved to such an extent that the danger of separation appeared imminent, thus producing this litigation.
 
   Norair sued the County for the extra work involved in correction of this problem.  The matter was tried without a jury.  The trial judge entered judgment in favor of Norair against the County for $62,241.97, of which $50,741.97 was for this extra work and $11,500 was in connection with a dispute relative to funds that had been retained by the County as a result of its claim for liquidated damages.

   The matter reaches us on direct appeal.  We shall affirm the judgment relative to the extra work, but on the issue of liquidated damages we shall remand for further proceedings.

   Four questions are presented on appeal, (1) whether the judge who considered an earlier law motion erred as a matter of law in sustaining Norair's exceptions to the County's demand for a bill of particulars; (2) whether the trial court "err[ed] as a matter of law in denying the County's special plea of limitations as to the[***5] first Count"; (3) whether the trial court "err[ed] as a matter of law under the contract in finding the County rather than the contractor responsible for the repairs to the outfall line which occasioned the damages claimed in Count I"; and (4) whether the trial court "err[ed] as a matter of law under the contract in finding that the County was either required or failed to demonstrate damage sufficient to recover liquidated [*483] damages stipulated in the contract as to Count III." We shall develop facts in the process of discussing these questions.

   I

   The Demand for Particulars

   Count I of the Declaration consisted of three paragraphs, the first two of which were the common counts relative to work done and materials provided and money found to be due on accounts stated, respectively.  The third paragraph of that count was as follows:

   "3. and for that on August 19, 1968 in consideration of the sum of Two Million, Four Hundred Fifty Thousand ($2,450,000.00) Dollars Plaintiff contracted with Defendant to construct the Broadneck Wastewater Treatment Plant in Anne Arundel County, Maryland.  That the Plaintiff performed its side of the contract in its entirety according to[***6] specifications provided by the Defendant but was also required to perform additional work, as permitted under the contract, due to deficiencies and omissions in the specifications for the project, as provided by Defendant.  That the additional work was not caused by any fault [**289] of the Plaintiff.  That the Plaintiff was forced to repair the 48 foot outfall line on the project due to the improper specifications causing additional expense over and above the contract price, which the Defendant has refused to pay thereby breaking the contract, and the Plaintiff claims the sum of Fifty Thousand Seven Hundred Forty-One Dollars and Ninety Seven Cents ($50,741.97)."
 
The demand for particulars here under consideration was:

   "1. With respect to Count 1, subparagraph 3, please state what repairs were accomplished to the 48' outfall line and which specifications are alleged [*484]to have been improper and to have caused additional expense above the contract price."
 
Norair excepted to that demand as improper, claiming that "[t]he information demanded [was] a matter of evidence to prove [Norair's] claim, and [was] not necessary in order to give sufficient[***7] notice of the claim," that "[i]t m[ight] not be obtained by particulars, but only, if at all, by interrogatory or other discovery procedure." This exception was sustained, thus producing the County's assignment of error.

   First of all, it must be noted that the demand for particulars is not of the first two paragraphs of the first count, the two common counts.  Under the statute as it existed for many years prior to 1957 (Maryland Code (1951) Art. 75, § 28 (107) being the most recent codification), a bill of particulars could be obtained as a matter of right "where the pleading [was] so general as not to give sufficient notice to the opposite party of the evidence to be offered in support of it." This was interpreted to require particulars of a common count upon request.  See 1 Poe, Pleading and Practice § 136 (5th ed. Tiffany 1925). The present Maryland Rule 346 a provides for "a bill of particulars whenever a pleading is so general as not to give sufficient notice to [a defendant] of the claim . . . asserted by such pleading," which has been interpreted as effecting a change in the former rule.  See editor's note to Rule 346 a.  It is in the light of this rule[***8] that the present request must be examined.

   In Sommers v. Wilson Bldg. & L. Ass'n, 270 Md. 397, 311 A. 2d 776 (1973), we had before us a demurrer to a declaration. We said relative to the declaration:
 
"Even a careful examination leaves one at a loss in determining whether the declaration sounds in assumpsit or tort, or whether it represents an effort by the pleader to impermissibly combine these two forms of action into a single count." Id. at 400.
 
We concluded that the declaration was vulnerable to attack on demurrer and that the interests of justice would be [*485] promoted by remanding the case without affirmance or reversal in accordance with Rule 871 a, with leave to file an amended declaration. However, in acceding to the request of the appellant that he be given an opportunity to file an amended declaration, Judge Digges said for the Court:
 
"This request is granted in part because confusion has resulted from the appellees' erroneous utilization of Rule 346 (demand for particulars) to procure information which is only obtainable under the deposition and discovery rules (Rules 400-425).  Here, the demand sought the particulars of all[***9] agreements and understandings between the parties, written or otherwise, whether they formed the basis of the action or not, concerning the duty of the appellees to keep the appellants' property insured.  Such a broad request under Rule 346 is improper.  Particulars are only permitted to satisfy the demands of pleading. Cline v. Fountain, etc., Company, 214 Md. 251, 134 A. 2d 304 (1957). On the other hand, if a party desires the extensive information requested here, interrogatories and other forms of discovery are the proper tools to be utilized.  The discovery rules are designed to satisfy the cravings [**290] of a litigant to acquire pretrial knowledge of the contentions being made by opposing parties, as well as all facts relevant to the dispute.  In fact, a bill of particulars is rarely used today as its function has been largely made obsolete by the rules governing discovery and summary judgment.  Nicholson v. Blanchette, 239 Md. 168, 188, 210 A. 2d 732 (1965); Hub Bel Air, Inc. v. Hirsch, 203 Md. 637, 641, 102 A. 2d 550 (1954)." Id. at 401-02.  (Emphasis in original.) 

   It must be remembered that our present discovery practice is of comparatively recent[***10] origin, dating from the adoption by the Court of General Rules of Practice and Procedure on January 30, 1941, effective September 1, 1941, "pursuant to the 18th Section of Article 4 of the Constitution [*486] of this State, and Chapter 719 of the Acts of the General Assembly of 1939." All of the information sought by the County here was available to it under Chapter 400 of the Maryland Rules and could well have been obtained by interrogatories under Rule 417.  The third paragraph of the first count of the declaration "g[ave] sufficient notice to [the County] of the claim . . . asserted by such pleading." Accordingly, Judge Melvin did not err in sustaining the exceptions to the demand.

   II and III

   Denying the Plea of Limitations to the First Count and Holding the County Responsible for Repairs to the Outfall Line

   On this count the trial judge, sitting as the trier of fact, said in his memorandum opinion:

   "COUNT I

   "Count one embodies the common counts for work and materials and for money found to be due between plaintiff and defendant.  It also contains a special count alleging a contract between plaintiff and defendant dated August 19, 1968 which plaintiff asserts had[***11] been fully performed.  However, it goes on to state that it was required to perform additional work as permitted under the contract due to deficiencies and omissions in the specifications in that it was required to repair a forty-eight inch outfall line due to improper specifications. The defendant refused to pay the expense of the repair, thereby allegedly breaking the contract.

   "To this count the defendant has entered the special plea of limitations as well as a defense.

   "The limitations defense is inappropriate.

   "Exhibit one which was entered into evidence without objection and purports to be the [*487] Specifications Proposal Contract and Bond for Contract No. 580-BS -- Broadneck Wastewater Treatment Plant on page A-3 indicates n1 that it is a sealed instrument.  Such being the case, this case was filed well within the twelve-year period of limitations for such a contract.  [Code (1974) § 5-102 (a) (5) of the Courts and Judicial Proceedings Article.] Even if somewhere within this weighty document there were contained a three-year limitation provision, the last payment made by the County on account of the contract was dated March 5, 1971.  Suit was filed March 14, 1973, [***12] also within the three-year limitation apparently urged by defendant.  . . .

   "The nature of the claim arises over the fact that on or about November 19, 1969, an inspector surveying the effluent line in question which extended from the chlorine contact chamber to a manhole structure located distant therefrom some 1000 feet and near the shoreline of the Chesapeake Bay, discovered that some of the sections of pipe which were generally 16 feet in length had either pulled apart completely or had moved to such an extent that danger of [**291]separation appeared imminent.  The entire line had moved twenty inches toward the outfall structure . . . .  When this fact was called to the attention of the project engineer for Norair, he immediately directed that all work stop on the line.  A meeting was held with the principals to determine what could be done.  The County officials blamed the condition upon gross neglect . . . on the part of the plaintiff; the plaintiff attributed the problem on design deficiencies.  The court finds that plaintiff has the better of the argument.

   [*488] "Details of the line are graphically presented on Exhibit 2, the working drawing.

   "The outfall line[***13] was made of prestressed concrete cylinder pipe to be placed in stable soil to a point approximately 259 feet from the north face of the chlorine contact chamber. At that point, the placement was to be made for the remaining distance in unstable soil and muck typical of tidal marsh material found in the Chesapeake Bay region.  Beginning four pipe sections in the stable area, the plans called for the pipe to be supported on pile 'bents.' These bents consisted of a creosoted pile driven on either side of the pipe line, the plane formed by the piles being perpendicular to the center line of the pipe. This pair of piles was then notched to receive a pair of four inch by twenty inch timber wales -- horizontal beams -- bolted to the piles at the precise elevation for the particular station. These bottom wales would provide a stable platform to support the pipe as it was placed on grade.  Shifting of the pipe in a lateral direction was to be prevented by a pair of tapered wooden chocks secured to the bottom wales in such a fashion that the tapered faces contacted the outside diameter of the pipe. Once the pipe had been placed on the lower wales, a second pair of four by sixteen inch wales[***14] were placed horizontally in contact with the top of the pipe and bolted to the piles. There was no requirement that the upper wales were to exert a compressive force upon the top of the pipe.

   "Exhibit 2 indicated that from station 2 + 11 to station 8 + 41 the pipe sections were to be laid with the spigot ends toward the Bay.  In other words, down hill.  From station 8 + 41 to station 9 + 90 the Exhibit 2 called for 10 sections of pipe to be laid in the opposite direction, or up hill.  This drawing was later revised, however, when a pipe laying schedule, Exhibit 4, was issued by the pipe manufacturer.  [*489] The schedule was approved by the County's consulting engineer. It called for the laying to commence 4 feet six inches from center line of pipe to face of contact chamber, and 'lay bells ahead up station' ('up station' would necessitate laying pipe toward the Bay -- or downward, the difference in elevation between the beginning and the end being 8.45 feet -- 2.83 feet or 5.62 feet over the entire distance).  While the plan as originally drawn, Exhibit 2, indicated the spigot end of the pipe to be laid up-station, the copy furnished the court indicates a pencilled revision [***15]showing the bell end to be laid up station consistent with the pipe laying schedule.  Section 10-03 of the specification required that installation of all concrete pipe shall be in strict accordance with the manufacturer's instructions and recommendations.

   "The specifications also required the contractor to refill all excavations as rapidly as possible after completion of the work therein, or after the excavations have served their purpose.  . . . Pursuant to this provision only two sections of pipe were allowed to be exposed at one time.  It was County policy to back-fill as rapidly as possible to avoid the hazard of anyone falling into the excavation and to protect the completed work.

   "In the entire design of the system there was no provision whatsoever to guard against longitudinal movement, even though at the point of greatest movement unstable earth existed to an approximate [**292] depth of twenty-two feet below the finished grade of the pipe bottom.

   "James J. Schnabel, a professional engineer and soil mechanics expert produced by plaintiff, testified that timber piles driven for pipe support were off as much as 1-1/4 inches per foot with directional movement generally [***16]toward the man hole.  Specifications required that all piles be driven [*490] in the presence of the engineer and would be considered plumb if their batter did not exceed 1/4 inch per foot . . . .  Mr. Schnabel further was of the opinion that longitudinal pressures from the method of progressive backfilling would result in cumulative movement towards the soft deposits of marsh vegetation with the sections of pipe being carried along with this force.

   "The County argues that had plaintiff followed the usual engineering practice and worked down-station (uphill) instead of up-station (down-hill) and backfilled at a constant level throughout the length of the line after the entire line had been completed, the problem would never have arisen.  That this is so, it argues, is self-evident in that once that procedure was followed, the line remained stable and no further difficulty was encountered since no other provisions were taken to prevent horizontal movement.

   "In the first place, there was no testimony from which the court could conclude that it was customary in such projects to work from the lower to the higher elevation. Secondly, had this been done it would have been violative [***17]of the contract specifications, since the manufacturer's directions clearly called for laying the pipe up-station and as a result of this the County revised exhibit 2 to provide for working upstation.  Moreover, had the pipe been laid downstation, each succeeding pipe section would have had to be supported in a sling or some such device and adjusted to proper elevation until joined to the next pipe section -- a highly awkward and inefficient procedure.  Plaintiff's specifications also called for immediate back filling.  Additional steps were taken by the subcontractor to prevent longitudinal movement in that 'dead men' n2 [*491] were placed at regular intervals and the pipe anchored to them . . . .  Plaintiff's subcontractor initially followed the County's specifications precisely, except that upon uncovering the line it was found that some of the top wales were not in contact with the top of the pipe as called for in the plans.  The County's inspector in Exhibit D, p. 6, noted that these wales were installed with top wale touching the pipe. The only possible conclusion which can be drawn from this set of circumstances is that the County's requirement for progressive back-filling[***18] created upward pressures which floated or lifted the pipe off the bottom wale before the top wale could be secured in place, since the weight of the pipe in and of itself would have kept it in place had not an extraneous lifting pressure been previously exerted.

   "Attempt was made by defendant to attribute the shifting of the piles to the method of removal of the overburden, but the court has heard no convincing evidence of this.  While it was reported that backfill was placed longitudinally with the pipe rather than transversely as suggested by the County's inspectors, there was no prohibition as to the longitudinal backfill method in the specifications. Since the subcontractor was not a designer of the structure, it could scarcely be held responsible for inherent design deficiencies which failed to guard against structure movement in a medium recognized to be unstable.

   "Therefore, in the first count the court will award judgment to the plaintiff in the amount of $50,741.97 . . ., there having been no contest as to the unreasonableness of this charge." (Emphasis in original.)

n1 "The exhibit is a blank copy, but the court assumes that the original is fully executed by both parties.

[***19] 

n2 "An anchoring device buried in the ground to which a structure is attached to prevent movement.

   [**293] We perceive no error of law in that opinion, nor, as to the factual matters there set forth, can we say that "the judgment of the lower court . . . [is] clearly erroneous . . . ." Maryland Rule 886.

   [*492] IV

   Liquidated Damages

   The contract provided in paragraph 4-07 (a) for the County to "determine the number of calendar days, if any, that the Contractor is in default in completing the contract" and that "[f]or each calendar day of default, the Contractor sh[ould] pay the County the sum of $150.00, which sum [was] [t]hereby agreed upon, not as a penalty, but as liquidated damages which the County w[ould] suffer by reason of such default . . . ." The County originally assessed liquidated damages for 77 days, but ultimately concluded that 58 days was the proper number of days, thus producing a dispute here as to $8,700.00.  The trial judge found "that the County having sustained no demonstrable damage arising from [Norair's] delay in completion of the project, [***20] the assessment of the per diem sum of $150 per day was completely unrealistic and bore no relation to any justifiable claim on the County's part and constituted an unenforceable penalty," a point which, of course, is here urged by Norair. We do not agree.

   In Balto. Bridge Co. v. U. Rwys. & E. Co., 125 Md. 208, 93 A. 420 (1915), Judge Pattison said for this Court:

   "From the authorities given above it may be stated as a settled rule of law, that where the parties, at or before the time of the execution of the contract, agree upon and name a sum therein to be paid as liquidated damages, in lieu of anticipated damages which are in their nature uncertain and incapable of exact ascertainment, that the amount so named in the agreement will be regarded as liquidated damages and not as a penalty, unless the amount so agreed upon and inserted in the agreement be grossly excessive and out of all proportion to the damages that might reasonably have been expected to result from such breach of the contract.  And whether it is excessive or whether the damages are incapable of exact ascertainment should be determined from the [*493] subject-matter of the contract considered in[***21] the light of all the surrounding facts and circumstances connected therewith and known to the parties at the time of its execution.  That these questions should be considered and determined from the contract itself, its subject-matter and the surrounding facts and circumstances connected therewith with which the parties are confronted at the time of its execution, is made necessary in order to ascertain the intention of the parties, which is one of the essential factors in deciding whether the stipulation is for liquidated damages or is a penalty.  It may afterwards be disclosed that the damages actually sustained are more or less than those anticipated at the time of the execution of the contract.  If more, this fact would not characterize or stamp the stipulation as a penalty unless it was so exorbitant as to clearly show that such amount was not arrived at in a bona fide effort, made at or before the execution of the contract, to estimate the damages that might have been reasonably expected to result from a breach of it, and that it was named as a penalty for such breach.  And on the other hand, if the amount stipulated was found to be inadequate, a greater amount could not[***22] be recovered for such breach, because of the agreement between the parties that the amount so named should be in lieu of the damages resulting therefrom." Id. at 214-15.
 
In that case the plaintiff had entered into a contract to do certain work upon a viaduct of the defendant in Baltimore City.  The contract was to be completed "within four months from the date of the agreement, [**294] or sooner if possible." It was agreed that if the work was not completed at the required time the owner was authorized to retain as liquidated damages the sum of $25 for each day the work remained unfinished after the date designated for its completion. As the Court put it, "the inquiry . . . [was], whether the amount stipulated in the agreement to be paid by the appellant in [*494] the event of its failure to complete the work within the designated period, [was] to be regarded as liquidated damages or as a penalty." The Court found the charge in that instance to be one for liquidated damages. This holding remains viable today.  Traylor v. Grafton, 273 Md. 649, 667-668, 332 A. 2d 651 (1975); Goldman v. Conn. Gen. Life Ins. Co., 251 Md. 575, 582, 248 A. 2d 154 (1968);[***23] H. J. McGrath Co. v. Wisner, 189 Md. 260, 264-265, 55 A. 2d 793 (1947); and Hammaker v. Schleigh, 157 Md. 652, 667, 147 A. 790 (1929). Moreover, as Judge Parke said for the Court in Hammaker, "[i]t is a question of law whether the provision is penal or only a liquidation of damages."

   It will be noted that the determination of whether the amount specified is a penalty or liquidated damages is to be determined as of the time of execution of the contract.  The damages in this instance that would be suffered by the County by delay obviously would be difficult of ascertainment. The amount specified, $150 per day, is not grossly excessive nor is it out of all proportion to the damages that might reasonably be expected to result from breach of the contract, particularly when it is noted that the full contract price was $2,450,000. Accordingly, we conclude that the trial judge erred in awarding Norair the full sum retained by the County as liquidated damages. Since he did not address himself to the number of days for which the County might properly claim liquidated damages, the case must be remanded for a determination on that point. 

   Judgment affirmed in part and reversed [***24]  in part and case remanded to the Circuit Court for Anne Arundel County for further proceedings consistent with this opinion; one-half costs to be paid by Anne Arundel County and one-half by Norair Engineering Corporation. 

STEWART v. STATE OF MARYLAND 
No. 111, September Term, 1974
 
Court of Appeals of Maryland
 
275 Md. 258; 340 A.2d 290; 1975 Md. LEXIS 960

 June  25, 1975, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals of Maryland.  Circuit Court for  Anne Arundel  County, Heise, J.

DISPOSITION: Judgment of the Court of Special Appeals affirmed; costs to be paid by appellant.

CORE TERMS:  venue, place of confinement, prisoner, custody, confined, escaped, house of correction, confinement, sentenced, reformatory, physically, penitentiary, sentence, departure, inmate, assigned, guard, farm, constructive, prison, convicted, jail, constructively, penal institution, correctional, transferred, temporarily, constructive custody, work release, proper venue

COUNSEL: Argued and reargued by Arthur D. Condon, Assigned Public Defender, for appellant.

   Argued and reargued by Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.

JUDGES: The cause was argued on January 13, 1975, before Singley, Smith, Digges, Levine, Eldridge and O'Donnell, JJ., and reargued on May 13, 1975, before Murphy, C. J., and Singley, Smith, Digges, Levine, Eldridge and O'Donnell, JJ. O'Donnell, J., delivered the opinion of the Court.  Smith, Digges and Eldridge, JJ., dissent and Eldridge, J., filed a dissenting opinion[***3] in which Smith and Digges, JJ., concur at page 275 infra.

OPINIONBY: O'DONNELL

OPINION: [*259] [**291] This case involves the question of where venue may lie for the trial of the crime of escape under Maryland Code (1957, 1971 Repl. Vol. [1974 Cum. Supp.]) Art. 27, § 139.

   The evidence presented by the prosecution tended to show the following: On October 9, 1969, the petitioner Brenda Stewart was committed to the custody of the Maryland Correctional Institution for Women, located in Anne Arundel County, to serve two sentences imposed by the Criminal Court of Baltimore -- one, a three-year term on a charge of burglary and the other a one-year consecutive term.  On February 16 of that year, in company with two other inmates, she was transported in the custody of two correctional officers to University Hospital in Baltimore City for medical treatment.  While there, waiting to see a nurse, she received permission from the correctional officer in whose custody she was, to "go to the bathroom." After an interval of several minutes the petitioner did not return; when the nurse called out her name, the correctional officer searched the bathroom only to discover that the petitioner[***4] was nowhere to be found.  At large for more than three years, she was returned to the Institution for Women on May 14, 1973.

   Subsequently a criminal information was filed in the Circuit Court for Anne Arundel County charging Brenda Stewart with the crime of escape in violation of Art. 27, § [*260] 139.  Prior to her trial, and before entering a plea, the petitioner's attorney objected to venue in Anne Arundel County and argued that since she had escaped while actually at the University Hospital, the proceedings should have been instituted in Baltimore City.  In connection with her motion challenging "venue" it was stipulated that "the actual place from which she left the jurisdiction of the proper authorities would be in Baltimore City." Nonetheless, the prosecution argued that the petitioner was legally confined at the Maryland Correctional Institution for Women, located in Anne Arundel County, and proper venue was in that court.  The trial judge (Heise, J.) denied the motion based on improper venue.

   Following a non-jury trial, during which her counsel reiterated his objection to the prosecution being laid in Anne Arundel County, Brenda Stewart was found guilty and sentenced[***5] to a term of eighteen months consecutive to the sentence she was serving when she escaped, in accordance with the mandate of Art. 27, § 139, as amended by Ch. 121 of the Acts of 1972.

   The Court of Special Appeals affirmed the petitioner's conviction, holding that under the provisions of Art. 27, § 139, and the facts of this case, "venue lies both in Baltimore City, where the departure actually occurred, and in Anne Arundel County, where the crime constructively took place." Stewart v. State, 21 Md. App. 346, 348, 319 A. 2d 621, 622 (1974). Since this Court had not previously dealt directly with the venue question presented, and because of the recurring nature of the issue, in the light of the number of trials which take place upon the charge of escape, we granted certiorari.

   The first paragraph of Art. 27, § 139 creating the offense, as it read at the time of the petitioner's departure from University Hospital, provided as follows:

   "If any offender or person legally detained and confined in the penitentiary, or jail, or house of correction, or reformatory, or station house, or any other place of confinement, in this State, shall [*261] escape he shall be guilty [***6]of a felony and on conviction thereof by the Criminal Court of Baltimore City or by the circuit court of the county in which the escape takes place, be sentenced to confinement [**292] in the penitentiary, jail or house of correction for such additional period, not exceeding ten years, as the court may adjudge.  However, for escapes from the Maryland Correctional Institution-Hagerstown or the Maryland Correctional Training Center-Hagerstown which have not involved an assault, the sentence shall not exceed confinement for three years." (Emphasis supplied.)

   Historically, the progenitor of § 139 was enacted as § 32 of Ch. 138 of the Acts of 1809, entitled "An Act Concerning Crimes and Punishments." The offense was limited to those "sentenced to undergoing confinement in the penitentiary." Venue over the offense was vested in the Court of Oyer and Terminer and Gaol Delivery for Baltimore County.  By the Acts of 1837, Ch. 320, § 18, limitation of the crime of escape to "any offender sentenced to undergoing confinement in the Penitentiary" was retained, the statute, however, providing as amended that one so adjudged guilty might be subjected to "such additional confinement [***7]and hard labour" as the Baltimore City Court shall adjudge and direct. n1 Following the construction of the House of Correction and the Reformatory the statute was materially changed and reenacted by Ch. 374 of the Acts of 1927 which, for the first time, made the offense of "escape" applicable not only to those confined in the Penitentiary, but to those detained and confined in the "Jail, or House of Correction, or Reformatory, or Station House, or any other place of confinement." It was upon this broadening of the scope of the offense that the provision was then inserted that "on conviction thereof by the Criminal Court of Baltimore or by [*262] the Circuit Court of the County in which the escape takes place," the offender shall "be sentenced to confinement for not more than ten years in the Penitentiary, or Jail, or House of Correction as the Court may adjudge." By Ch. 157 of the Acts of 1963 the Legislature limited the punishment on escapes from the Reformatory for Males.  For a review of the history of the statute see Fabian v. State, 3 Md. App. 270, 276-78, 239 A. 2d 100, 105-06 (1968). See also Beasley v. State, 17 Md. App. 7, 299 A. 2d 482, cert. denied,[***8] 268 Md. 745 (1973).

n1 The penitentiary was located in Baltimore City when it was the county seat of Baltimore County.  Baltimore City later became a separate political subdivision of the State.

   Thus, after a recitation of various "places of confinement," the statute -- in the very same sentence -- provides that the offense be tried either in the City of Baltimore or in the circuit court of the county "in which the escape takes place." This use of the phrase, within the same sentence, designating "places of confinement," as we construe it, provides that venue rests geographically in that area where the "place of confinement" is located.  This view is strengthened by the language of the last sentence included in the paragraph placing a limitation upon the punishment for escape from the two correctional institutions located at Hagerstown, Maryland Correctional Institution and Maryland Correctional Training Center, "descendants" of the former Reformatory for Males.

   Since a statute should be construed according[***9] to the ordinary and natural import of the language used, unless a different meaning is clearly indicated by its context, without resorting to subtle or forced interpretations for the purpose of extending or limiting its operation, the use of the clause "on conviction thereof by the Criminal Court of Baltimore City or by the circuit court of the county in which the escape takes place" makes use of relative and qualifying language which must be applied to the phrases immediately preceding it -- designating places of confinement -- and thus cannot be construed as limiting venue to the place where the prisoner physically happens to have been when he eloped.  See 82 C.J.S. Statutes § 334 (1953).  Compare Webb v. Mayor & City Council, 179 Md. 407, 19 A. 2d 704 (1941).

   [**293] In connection with fixing venue at the "place of [*263] confinement," it is interesting to observe that under the provisions of Art. 27, § 725, as it read at the time of the petitioner's departure, it was provided that escapes by prisoners working upon the roads (under the provisions of §§ 719 to 726) were misdemeanors punishable by confinement for an additional term not to exceed one-half[***10] of the entire term for which the prisoner had been sentenced prior to escape, or in the discretion of the court, subjecting him to any penalties which may be by law provided for prisoners escaping "from the institution to which he had previously been committed." Although that statute was repealed by Ch. 121, § 1 of the Acts of 1972, as to the penalty therein provided, and escapees were thus brought within the purview of Art. 27, § 139, the language formerly used in § 725 lends congruity by the Legislature to the interpretation that venue certainly coincides with the "place of confinement." Similarly, Art. 27, § 700A (c), provides that if any prisoner, released from actual confinement to a "work release" plan shall willfully fail to return to the place of confinement at the time specified in such plan he shall be guilty of a misdemeanor and be subject to the penalties of Art. 27, § 139.  Those, too, who have been granted "compassionate leave" under the provisions of Art. 27, § 700B (f), are considered to violate the provisions of § 139 upon their failure to comply with the terms of their authorization for leave.  It would thus seem to be within the legislative scheme[***11] of things to fix the gravamen of the offense under these statutes to the failure of the prisoner to return to his "place of confinement," while temporarily outside the confines of the institution to which he has been committed when working upon the roads, or in a "work release" plan, or upon a grant of "compassionate leave." The same logic would seem to apply to one who, like the petitioner here, was temporarily absent from the Maryland Correctional Institution for Women -- her "place of confinement" -- when she was taken to the University Hospital for medical treatment and then escaped.

   While it is true that since 1967 judges in sentencing convicted persons no longer commit them to any designated [*264] institution but rather commit them to "the custody of the Commissioner of Correction," Art. 27, § 690 (b), the correctional and reformatory institutions under the Department of Correction are designated in Art. 27, § 689, as, "the Maryland Penitentiary, the Maryland House of Correction, the Maryland Correctional Institution-Hagerstown, the Maryland Correctional Training Center-Hagerstown, the Maryland Correctional Institution for Women-Jessup, the Maryland Correctional Camp[***12] Center, at Jessup," other "correctional camps as established from time to time elsewhere in the state," "receiving and classification centers located at either one of the enumerated institutions or elsewhere," and as provided by Ch. 82 of the Laws of 1973, "any community correction center established and maintained as set forth in Art. 27, § 706.  As a matter of practice, upon a sentence to the custody of the Commissioner of Correction such prisoners are -- generally -- in the first instance delivered to the Reception, Diagnostic and Classification Center located in a portion of the Maryland Penitentiary whence they are, by warrants of commitment, ordered transferred and confined by the Commissioner of Correction to a designated "place of confinement." n2 Hence, no problem is presented in ascertaining "the county of 'constructive departure'" in that the situs of the inmate's "place of confinement" is specifically fixed.

n2 As we understand it, sentenced female prisoners are transferred directly to the Correctional Institution for Women without being processed through the Reception, Diagnostic and Classification Center.

[***13]

   In Johnson v. Warden, 196 Md. 672, 75 A. 2d 843 (1950), the appellant initially sentenced to the House of Correction had been transferred to the Reformatory for [**294] Males and was sentenced in the Circuit Court for Washington County to a consecutive term for escape from the Reformatory. In an application for leave to appeal a denial of habeas corpus the appellant challenged the legality of his conviction asserting that he was not subject to the statute in that he was not confined in the Reformatory at the time of his escape but [*265] had been assigned, without the supervision of any guard, to work on a private farm from which he had departed.

   In rejecting this contention Chief Judge Marbury for the Court, stated:
 
"There can be no doubt that the applicant was legally confined in the Reformatory at the time of his escape.  The mere fact that he was allowed to work outside on a farm in the daytime does not change the nature of his detention or confinement, and escape from the farm had no legal significance different from an escape from the Reformatory itself." (Emphasis supplied.) 196 Md. at 674, 75 A. 2d at 844.

   In Taylor v. State, 229 Md. [***14] 128, 182 A. 2d 52 (1962), the appellant, after serving 19 months on a three-year sentence at the House of Correction was transferred to the Sandy Point Correctional Camp.  While on a work detail from the Camp at the University Hospital in Baltimore he escaped. When he was arraigned in the Criminal Court of Baltimore upon a charge of escape "from the House of Correction," he pleaded guilty.  On appeal, in addition to challenging the voluntariness of his plea, he contended that he could not be guilty of the offense proscribed in § 139 since he was not confined at the House of Correction at the time of his escape.

   In rejecting this contention Chief Judge Brune, for this Court, stated:

   "The exact relationship between the Correctional Camps (including the one at Sandy Point) and the House of Correction is not shown by the record or briefs before us, nor is it shown (so far as we can discover) by any statute.  No statute treats them as separate places of confinement, as the statutes do treat the Penitentiary, the House of Correction, the Reformatory for Males and other institutions.  It would appear that the Sandy Point Correctional Camp was merely an adjunct of the House of Correction. [***15] n1 ["1. We are informed that as an [*266] administrative matter all prisoners assigned to Correctional Camps have been originally committed to the House of Correction or have been transferred to it from other institutions before being classified and assigned to such camps and that they continue to be carried on the rolls of the House of Correction while assigned to such camps."] We therefore think that the prisoner continued to be under confinement at that institution and escape therefrom would, therefore, constitute escape from the House of Correction. Johnson v. Warden, 196 Md. 672, 75 A. 2d 843. . . ." (Emphasis supplied.) 229 Md. at 130, 182 A. 2d at 53. (Footnote in original.)

   A case virtually identical to the facts here is Best v. Warden, 235 Md. 633, 201 A. 2d 490 (1964), in which Best, serving a term for murder in the Penitentiary, while at the University Hospital for medical treatment, escaped when his guard left him temporarily unwatched in order to arrange for return transportation to the Penitentiary. In his petition for post conviction relief, filed in the Criminal Court of Baltimore, Best asserted that he did not commit the crime of escape as[***16] defined in Art. 27, § 139, since the University Hospital was not a "place of confinement" and that it was his guard who violated the statute by abandoning custody over him when he was left unguarded.

   In rejecting these contentions, and in denying application for leave to appeal, Judge Sybert, writing for this Court, stated:

   "The argument that the applicant did not commit the crime of escape since he was left unguarded and the hospital was [**295] not a 'place of confinement', is answered in Johnson v. Warden, 196 Md. 672, 75 A. 2d 843 (1950). There this Court held that a prisoner was legally confined in the State Reformatory within the meaning of what is now Art. 27, sec. 139, even though he was allowed to work outside, unguarded, on a private farm, and that, when he [*267]escaped from the farm, he was subject to punishment for escape from the Reformatory. The same reasoning applies in the instant case, and thus the applicant was properly convicted of escape under Art. 27, sec. 139.  Cf. Taylor v. State, 229 Md. 128, 182 A. 2d 52 (1962). The claim that the guard had abandoned 'jurisdiction' or custody (even if it were assumed that he could lawfully do so), [***17] is negated by the fact that the only reason the applicant was left alone was to permit the guard to arrange for transportation back to the penitentiary." 235 Md. at 634-35, 201 A. 2d at 491.

   The issue was more directly raised in Ford v. State, 237 Md. 266, 205 A. 2d 809 (1965), where the appellant, serving a sentence in the Maryland Correctional Institution for a motor vehicle offense, was brought to the Criminal Court of Baltimore to stand trial upon an indictment charging him with burglary and larceny of an automobile.  Escorted to the court by an Institution correctional officer, the appellant's handcuffs were removed; having been granted permission "to get a drink of water," he broke away from his guard, and ran out of the courtroom.  He was recaptured on the street almost immediately.  Subsequently convicted and sentenced in the Criminal Court of Baltimore for escape from the Maryland Correctional Institution the appellant contended, inter alia, that he could not be guilty of escape because he was physically outside the prison area and that he had been subjected to "double jeopardy" by reason of administrative intramural punishment.  On the authority of the holdings[***18] in Best v. Warden, supra, Taylor v. State, supra, and Johnson v. Warden, supra, this Court held that even though he was physically outside the prison area of the Maryland Correctional Institution, he was still in the legal custody of the Institution and when he broke away from the guard he escaped in violation of § 139.

   In Shifflett v. State, 4 Md. App. 227, 242 A. 2d 182 (1968), the appellant, committed to the Baltimore County Jail under a lawful sentence, was assigned to work as a "trusty" in the [*268] office of the chief clerk of the Baltimore County magistrate's court from which he "took leave." Convicted of violating § 139 he contended that he had not escaped from the Baltimore County Jail, but rather from the office at the magistrate's court, which was not a "place of confinement" within the meaning of the statute.

   The Court of Special Appeals in an opinion by Chief Judge Murphy (then Chief Judge of that court) stated:
 
"We find no merit in this argument.  The jail is expressly included as a place of confinement under the statute.  As appellant was lawfully under sentence and committed to the jail, the fact that he was physically beyond its confines [***19]when he escaped does not immunize him from prosecution under the statute.  See Fabian v. State, 3 Md. App. 270, 280, at footnote 5, collecting authorities to the effect that no distinction exists between an escape from within prison walls and one effected when the prisoner, in legal custody, was physically outside the prison area." 4 Md. App. at 229, 242 A. 2d at 184.

   In Beasley v. State, 17 Md. App. 7, 299 A. 2d 482, cert. denied, 268 Md. 745 (1973), the appellant was convicted in the Circuit Court for Anne Arundel County, under a criminal information, with a violation of Art. 27, § 139. Although the appellant had pleaded guilty, on appeal he contended that he had escaped while on the "work release" program and should have been convicted [**296]instead of a misdemeanor under Art. 27 § 700A (c).

   The Court of Special Appeals, in holding that the appellant had been properly charged, stated:
 
"The language in the information [footnote omitted] charges that the appellant 'while undergoing lawful custody in pursuance of a sentence * * * did * * * from * * * said custody, escape * * *.' We held in Shifflett v. State, 4 Md. App. 227 that the escape of[***20] a prisoner while in constructive custody under a work release program [*269] constituted an escape from a place of confinement in violation of § 139.  In the light of Shifflett we now conclude that the allegations in the information are legally equivalent to stating that the appellant escaped from a place of confinement as proscribed by § 139.  The language used to charge a violation of a statutory offense need not be in the exact language of the statute." (Emphasis supplied.) 17 Md. App. at 11, 299 A. 2d at 484.

   After tracing the legislative history of both § 139 and § 700A (c), that court, in concluding that the appellant could have been charged and convicted under either statute, stated:
 
"There is no substantial difference in the conduct prohibited by the two statutes.  Section 139 proscribes the escape of prisoners generally from a place of confinement while § 700A (c) prohibits the escape of prisoners under the jurisdiction of the Department of Correction while on a work release program. We hold therefore that at the time of the enactment of § 700A (c) in 1963 and prior to the 1966 amendment of § 139 there was no inconsistency or repugnancy [***21]between the two statutes and that both were then in full force and effect." 17 Md. App. at 13, 299 A. 2d at 485.

   See also Robinson v. State, 18 Md. App. 438, 306 A. 2d 624 (1973), in which the Court of Special Appeals in reversing the appellant's conviction and ordering a new trial, pointed out that the gravamen of the offense was a "wilful failure to return to the place of confinement at the time specified in such [work release] plan." That court, however, in discussing § 139 -- after pointing out the holdings of this Court in Ford v. State, supra, Best v. Warden, supra, Taylor v. State, supra and Johnson v. Warden, supra -- stated:
 
"§ 139 is a broadly based statute embracing within its purview all escapes from lawful confinement, whether the escape was initiated from within or [*270] without the walls or other boundaries of a penal facility; whether the confinement was actual or constructive; whether it was effected with or without force, and without regard to the circumstances of confinement if the detention was under color of law." 18 Md. App. at 441-42, 306 A. 2d at 626.

   Although, in none of the cases which have come before this Court, [***22] or before the Court of Special Appeals, has the question of venue been raised in eo nomine, the issue was certainly obliquely before this Court in both Taylor v. State, supra, where the defendant was charged in the Criminal Court of Baltimore with escaping from the House of Correction (in Anne Arundel County), and Ford v. State, supra, where he was tried in the Criminal Court of Baltimore for escape "from the Maryland Correctional Institution" (in Washington County).  In each the indictments on their face presented the issue of venue. As a result of these decisions under the provisions of § 139 a certain "gloss" has been placed upon the statute which recognizes that "constructive" custody remains in the place of confinement to which the prisoner had been committed and it is legally indistinguishable from "actual" custody. As a distillation of these decisions § 139 has come to be interpreted to mean that the crime of escape takes place either (1) in the county where the physical [**297] departure actually occurs, or (2) in the county where the institution is located, which is the prisoner's "place of confinement" and from which his "constructive" departure occurs. [***23] Since the Legislature has elected, following these decisions, not to amend the statute, but rather has acquiesced in its judicial construction there is a strong presumption that the intention of the Legislature and the words used by it have been correctly interpreted and such interpretation should not be disregarded.  See Hearst Corp. v. State Dept. of Assessments, 269 Md. 625, 308 A. 2d 679 (1973); Perdue Foods v. State Dept. of Assessments, 264 Md. 672, 288 A. 2d 170 (1972); Shriner v. Mullhausen, 210 Md. 104, 122 A. 2d 570 [*271] (1956). See also Creaser v. Owens, 267 Md. 238, 297 A. 2d 235 (1972). 

   Thus, by judicial interpretation, acquiesced in by the Legislature, § 139 has been given a construction that would make it similar to the statute applied in People v. Vanderburg, 67 Cal. App. 217, 227 P. 621 (1924), and the Kentucky statute applied in Cutter v. Buchanan, 286 S.W.2d 902, 903 (Ky. 1956), and Clark v. Commonwealth, 293 S.W.2d 465, 467 (Ky. 1956), cert. denied, 353 U.S. 923 (1957), in both of which cases the Court of Appeals of Kentucky held that their statute prescribed two modes of committing a single offense, i.e. escaping from [***24]the institution itself -- from within the walls of the prison -- or escaping "from the bounds where he had been assigned."

    In State v. Hutcheson, 251 Ore. 589, 447 P. 2d 92 (1968), the Supreme Court of Oregon held that a "work release" enrollee who escaped from his job in one county was nonetheless in the "constructive" custody of the Corrections Division in another county and his trial was properly conducted in the county where the Corrections Division was located.  Although that court, in Hutcheson, did not rule whether or not he could also be prosecuted in the county where he escaped -- because the question was not then before the court -- the Court of Appeals of Oregon in Kneefe v. Sullivan, 2 Ore. App. 152, 465 P. 2d 741 (1970), held that notwithstanding the provisions of Art. I, § 11, of the Oregon Constitution, which creates the right to a public trial in the county in which the offense shall have been committed, there was proper venue over the offense of escape either in the county where the petitioner was in "constructive" custody, or in the county where he was physically in custody at the time of his escape.  That court stated:

   "The Constitution of the[***25] State of Oregon provides for venue to be in the county in which a crime is committed.  Escape becomes, under the circumstances of this case, a crime in which the prohibited act or the effects thereof occur in more than one county, i. e., physically in one, constructively [*272] in the other.  [Footnote omitted] Generally, one will be able to receive a fair trial in either county.  Either Marion County, where the petitioner was constructively in custody, or Multnomah County, where he was physically in custody at the time of the escape, would have been the right county for his trial on the charge of escape." 2 Ore. App. at 156, 465 P. 2d at 743.

   The doctrine of "constructive custody" in the place of confinement to which the prisoner had been committed, notwithstanding the fact that he absented himself at a place other than at the place of confinement, has been consistently applied by the Supreme Court of Missouri in State v. Baker, 355 Mo. 1048, 199 S.W.2d 393 (1947) and in Ex Parte Rody, 348 Mo. 1, 152 S.W.2d 657 (1941), by the Supreme Court of Indiana in State v. Rardon, 221 Ind. 154, 46 N.E.2d 605 (1943), by the Supreme Court of Connecticut in State v. Mead,[***26] 130 Conn. 106, 32 A. 2d 273 (1943), by the Supreme Court of California in Bradford v. Glenn, 188 Cal. 350, 205 P. 449 (1922) and by the Criminal Court of Appeals of Oklahoma in Sweden v. State, 83 Okla. Crim. 1, 172 P. 2d 432 (1946).

   [**298] Premised as it is upon the fact that the prisoner has been committed to a specific institution, and that the offense occurs when he elopes therefrom -- regardless of whether he is confined within its walls or temporarily away therefrom -- the doctrine of "constructive custody" appears to be in accord with the weight of authority.

   In view of the holdings by this Court in Kisner v. State, 209 Md. 524, 122 A. 2d 102 (1956), where Judge Hammond (later Chief Judge), pointed out that neither the Constitution of 1776 nor succeeding Maryland Constitutions require that the trial of an accused take place in the county where the crime was committed and that the "concept that the common law necessity for trial in the county of the commission of the crime is not a fundamental right or requirement," the petitioner's reliance on State v. Dignan, 114 W. Va. 275, 171 S. E. 527 (1933) and Rice v. State, 192 So. 2d 698 (Miss. 1966), [*273] [***27] is misplaced.  In Dignan the Supreme Court of Appeals for West Virginia held that the provision of Art. 3, § 14, of that state's constitution prohibited venue for the trial of escape in one county where the prisoner had actually escaped from a road gang in another county, and concluded that "there is no room under the West Virginia Constitution to interpret any statute as creating a constructive venue of crime." In Rice the Supreme Court of Mississippi, in rejecting the doctrine of "constructive custody," applied a similar provision in its state constitution.  See State v. Hutcheson, supra, where, notwithstanding a substantially similar provision in the Oregon Constitution, the Supreme Court of that state specifically rejected the holdings in Dignan and in Rice.

   As we see it, the gravamen of the offense prohibited by § 139 is the physical departure by an inmate from the "place of confinement" and although the prohibited act may physically take place in a separate geographical area, the effects of that act occur at the place of confinement. The concurrence of the act with its resultant effect thus permits venue in the subdivision where the "place of confinement" [***28] is located.  See Urciolo v. State, 272 Md. 607, 631, 325 A. 2d 878, 892 (1974).

   To limit venue in such cases to the place where the inmate physically happened to be when he eloped would impose impractical impediments in the administration of criminal justice.  Customarily when a prisoner escapes he is, upon apprehension, returned to his "place of confinement," where his records are on file and where the custodial personnel who may have had custody over him at the time of his elopement are stationed.  Charging the escapee in the county where the "place of confinement" is located, accommodates the presentation of the evidence without requiring the attendance of witnesses and the production of documents at a place far removed from the situs of the institution to which the inmate had been committed.

   Additionally, if venue were held to be limited to the place where an inmate physically made good his escape, there would be a complete frustration on the part of prison [*274] officials, in those cases where a prisoner may have been dispatched on a work detail or some assignment in an area distant from his place of confinement which would require inter-county transportation, and [***29]his disappearance became noted only at the point of destination, in undertaking to fix geographically that county (somewhere between the point of embarkation and scheduled disembarkation) where the prisoner physically departed the transporting vehicle.

   When Brenda Stewart was lawfully committed to the Maryland Correctional Institution for Women, that institution, located at Jessup in Anne Arundel County, became her "place of confinement." When escorted to the University Hospital for outpatient medical care, she was still "confined" at the institution and was "within the bounds where she had been assigned"; she was only temporarily absent from that institution's actual custody. Although she [**299]was physically in Baltimore City when, by a subterfuge, she escaped by evading the custody of the correctional officer who accompanied her, she constructively remained confined in Anne Arundel County; her prohibited act in Baltimore City took effect in Anne Arundel County, and she thus escaped from the confinement to which she had been legally committed at the Maryland Correctional Institution for Women.  We conclude that venue over the offense with which she was charged was properly[***30] laid in Anne Arundel County and that her motion was thus properly denied.

   Although the Court of Special Appeals in affirming the petitioner's conviction, opined that venue would also lie in Baltimore City -- where the actual departure occurred -- we need not here, upon the facts of this case, in the light of our holding that there was venue in the county where her place of confinement was located and where she was constructively in custody, pass upon the correctness of that conclusion.

   Judgment of the Court of Special Appeals affirmed; costs to be paid by appellant.

DISSENTBY: ELDRIDGE

DISSENT:  
[*275] Eldridge, J., dissenting:

   In my view, the proper venue where a defendant is charged with the crime of escape is the jurisdiction where the escape actually took place.  Where a timely objection to venue is made, the statute does not permit trial in a different county because of the location of the institution in which the defendant was previously confined. Therefore, I would reverse petitioner's conviction of escape.

   Art. 27, § 139, provides in pertinent part (emphasis supplied):

   "If any offender or person legally detained and confined in the penitentiary or jail, or[***31] house of correction, or reformatory, or station house, or any other place of confinement, in this State, shall escape he shall be guilty of a felony and on conviction thereof by the Criminal Court of Baltimore City or by the circuit court of the county in which the escape takes place, be sentenced to confinement . . . for such additional period, not exceeding ten years, as the court may adjudge."
 
The majority opinion purports to recognize the principle, which this Court has reiterated on numerous occasions, that "a statute should be construed according to the ordinary and natural import of the language used, unless a different meaning is clearly indicated by its context, without resorting to subtle or forced interpretations for the purpose of extending or limiting its operation." Balto. County v. White, 235 Md. 212, 218, 201 A. 2d 358 (1964); Dundalk Liquor Co. v. Tawes, 197 Md. 446, 454-455, 79 A. 2d 525 (1951); Barrett v. Clark, 189 Md. 116, 123, 54 A. 2d 128, 173 A.L.R. 988 (1947); Schmeizl v. Schmeizl, 186 Md. 371, 375, 46 A. 2d 619 (1946). See also Grosvenor v. Supervisor of Assess., 271 Md. 232, 237-238, 315 A. 2d 758 (1974); Radio Communications, [***32]  Inc. v. Public Service Commission, 271 Md. 82, 93, 314 A. 2d 118 (1974); Chillum-Adelphi Volunteer Fire Dept., Inc. v. Prince George's County, 269 Md. 486, 491, 307 A. 2d 481 (1973); Scoville Service, Inc. v. Comptroller of [*276]the Treasury, 269 Md. 390, 395, 306 A. 2d 534 (1973); Giant of Maryland, Inc. v. State's Attorney for Prince George's County, 267 Md. 501, 511-512, 298 A. 2d 427, appeal dismissed, 412 U.S. 915, 93 S. Ct. 2733, 37 L.Ed.2d 141 (1973); Germenko v. Pub. Service Comm., 226 Md. 295, 301-302, 173 A. 2d 362 (1961).

   Applying this principle of statutory construction to the subject case, the ordinary and natural import of the language used dictates that a prosecution for escape be only in the jurisdiction where the actual escape takes place.  An escape occurs when there is a "departure or deliverance out of custody," Black's Law Dictionary (Rev. 4th ed. 1968), 639, and in the present [**300] case such event concededly occurred in Baltimore City.  Art. 27, § 139, specifies that the defendant shall be guilty of escape if convicted by "the circuit court of the county in which the escape takes place . . . ." The statutory language [***33]is clear and unambiguous in specifying one and only one court for the trial of escape cases, namely that of the jurisdiction where the "escape" occurs.  To construe the statute, as did the Court of Special Appeals, to permit trial in either the county where the escape takes place or the county where the correctional institution in which the defendant had previously been confined is located, would be, in the language of the above-cited cases, "resorting to subtle or forced interpretations for the purpose of extending . . . [the statute's] operation."

   The holding of the majority and of the Court of Special Appeals, that venue for escape may lie "in the county of the penal institution from which the constructive departure occurs" (21 Md. App. at 353), could present serious problems with regard to ascertaining the county of "constructive departure." Since 1967 in Maryland, convicted persons have not been sentenced to correctional institutions as was formerly the practice.  Instead, all sentences are to the jurisdiction of the Division of Correction of the Department of Public Safety and Correctional Services, and all such sentenced persons "shall be committed to the custody of the Commissioner[***34] of Correction." Code (1957, 1971 Repl. Vol., 1974 Cum. Supp.), Art. 27, § 690 (b).  See also Code (1957, [*277] 1971 Repl. Vol.), Art. 41, § 204D (a).  The Commissioner of Correction may confine them in "institutions," county or Baltimore City detention facilities, correctional camps, community correction centers, other "facilities" under his jurisdiction, State Police barracks, or, in the case of illness, "to a place where adequate treatment for the illness of the prisoner may be maintained." Art. 27, §§ 689, 690, 698.  Moreover, under Art. 27, § 700E, the Commissioner of Correction need not keep inmates, sentenced to his jurisdiction for certain specified crimes, in "actual confinement," but he may grant them the privilege of living in a "noninstitutional environment" including living at home.  In light of the fact that sentences are not to designated institutions, and considering the flexibility which the Commissioner of Correction has in regard to places of confinement, or even places of "non-confinement," the concept of "constructive custody" in the "institution" to which a person had been confined is just not a practical one for determining venue in escape cases. [***35] Under the existing statutory scheme, for escape purposes there is little or no rational basis for distinguishing between "institutions" and other places where a person may be held in custody by the Commissioner of Correction.  A convicted person, sentenced to the custody of the Commissioner of Correction, may never be "confined" in what has traditionally been regarded as an institution.

   The majority opinion discusses in detail the cases in this Court dealing with what constitutes the crime of escape under Art. 27, § 139, states that the "question of venue . . . was certainly obliquely before this Court" in two of the cases, and further states that, as a result of those decisions, "a certain 'gloss' has been placed upon" § 139.  The cases are: Slagle v. State, 243 Md. 435, 221 A. 2d 641 (1966); Ford v. State, 237 Md. 266, 205 A. 2d 809 (1965); Best v. Warden, 235 Md. 633, 201 A. 2d 490 (1964); Taylor v. State, 229 Md. 128, 182 A. 2d 52 (1962); and Johnson v. Warden, 196 Md. 672, 75 A. 2d 843 (1950). However, in none of these cases was the issue of the proper venue presented or considered.  Since it is well settled that any question concerning venue is waived[***36] if [*278] not timely raised, I do not understand how the issue of venue was before the Court in any of the prior cases, even "obliquely." This Court, in the above-cited cases, was not construing the phrase in Art. 27, § 139, delineating the proper venue for trial of the crime of escape.  Instead, the Court was [**301] construing the language in the statute which comes before the venue provision, setting forth the substantive crime of "escape."

   Moreover, assuming arguendo that the prior cases in this Court concerning Art. 27, § 139, were instructive on the matter of venue, they would support the position that venue for the crime of escape under § 139 lies in the county where the escape actually takes place and not in the county where the penal institution is located.  In Best v. Warden, supra, 235 Md. at 634, and presumably in Johnson v. Warden, supra, n1 the penal institution and the place from which the actual escape took place were in the same county; so no question of venue pertinent here could have been raised.  In all of the remaining cases, where it appears that the penal institution was in one jurisdiction and the escape in another, the trial for the crime[***37] of escape took place in the jurisdiction where the escape actually occurred.  Thus, in Slagle v. State, supra, 243 Md. 435, the inmate was confined in the Baltimore City jail awaiting trial; he was sent to the Clifton T. Perkins Hospital in Howard County for an examination; and, like the petitioner in the instant case, he escaped from the hospital.  His trial for the crime of escape was in Howard County, where the hospital was located, instead of in Baltimore City where the penal institution where he had been confined was located.  In Ford v. State, supra, 237 Md. 266, the appellant was confined in the Maryland Correctional Institution in Washington County; he was brought to the Baltimore City courthouse by a guard from the Maryland Correctional Institution; at the courthouse he [*279] asked the guard if he could go get a drink of water; and after he was granted permission and his handcuffs were removed, he escaped. The trial on the escape charge was in Baltimore City, where the escape occurred, and not in Washington County where the penal institution was located.  In Taylor v. State, supra, 229 Md. 128, the inmate was confined in the House of Correction in Anne Arundel [***38]County, and was later transferred to a "Correctional Camp" at Sandy Point, also in Anne Arundel County.  He was then placed on a work detail at University Hospital in Baltimore City, and, like petitioner Brenda Stewart, escaped from University Hospital.  The prosecution of Taylor for escape was in Baltimore City, where University Hospital is situated, and not in Anne Arundel County where both the House of Correction and the Sandy Point Correctional Camp were situated.  Consequently, if the issue of venue were "obliquely before this Court" in any of our prior cases, one would have to draw the conclusion that, under our cases, the appropriate jurisdiction for trial of the crime of escape is the jurisdiction where the escape actually takes place.

n1 In Johnson, the inmate was confined in an institution located in Washington County; the institution officials assigned him to work on a farm; and he escaped from the farm. While the reported opinion does not specify the county in which the farm was located, it is reasonable to assume that institution officials in Washington County would choose nearby farms for the assignment of their inmates.

[***39]

   Cases in other jurisdictions under constitutional or statutory venue provisions like Art. 27, § 139, have reached the same result as I would here. In State v. Dignan, 114 W. Va. 275, 171 S. E. 527 (1933), a convict was temporarily assigned to a road gang in Braxton County, West Virginia, from which he escaped. However, he was tried for escape in a different county, where the state penitentiary was located.  In light of the provision of the West Virginia Constitution that trials for such crimes shall be held in the "county where the alleged offense was committed," the Supreme Court of West Virginia reversed the conviction, rejecting the argument "that a convict can be constructively in the penitentiary for the purposes of venue of a criminal offense without being physically present in . . . [such] county." 171 S. E. at 528. [**302] The Supreme Court of Mississippi under similar facts and a similar constitutional provision reached the same result in Rice v. State, 192 So. 2d 698 (Miss. 1966). n2

n2 The majority opinion states that the petitioner's reliance on Dignan and Rice is misplaced because Maryland, in light of the holding in Kisner v. State, 209 Md. 524, 122 A. 2d 102 (1956), does not have a constitutional provision like West Virginia's and Mississippi's.  While Maryland may not have a constitutional provision specifying the venue for criminal offenses like this, we do have a statutory provision specifying that the proper jurisdiction for the trial of escape cases is the "county in which the escape takes place," Art. 27, § 139.

[***40]

   [*280] On the other hand, the cases which have reached the same result as does the majority in the instant case, have all involved statutory provisions which specified that venue in escape cases would lie in more than one county, or have arisen where there were no constitutional or statutory provisions bearing on the question.  Thus in People v. Vanderburg, 67 Cal. App. 217, 227 P. 621 (1924), the statute provided "that a charge of escaping from a prison may be tried in any county of the state." In People v. Richards, 247 Mich. 608, 226 N. W. 651, 652 (1929) and People v. Thomas, 1 Mich. App. 118, 134 N.W.2d 352, 357-358 (1965), the statute provided that one charged with an escape "shall be charged with said offense and tried in the courts of the county wherein the administrative offices of the prison may be," regardless of where the escape took place.  See also Cutter v. Buchanan, 286 S.W.2d 902, 903 (Ky. 1956), and Clark v. Commonwealth, 293 S.W.2d 465 (Ky. 1956), cert. denied, 353 U.S. 923, 77 S. Ct. 682, 1 L.Ed.2d 720 (1957) (involving a Kentucky statute expressly permitting trial in both places); State v. Hutcheson, 251 Or. 589, 447 P. 2d 92 (1968)[***41] (involving an Oregon statutory scheme which decreed that custody should remain with a specified institution); Sweden v. State, 83 Okl. Cr. 1, 172 P. 2d 432 (1946) (no pertinent constitutional or statutory provisions involved).  The cases from other jurisdictions cited by the majority, namely State v. Mead, 130 Conn. 106, 32 A. 2d 273 (1943); State v. Rardon, 221 Ind. 154, 46 N.E.2d 605 (1943); State v. Baker, 355 Mo. 1048, 199 S.W.2d 393 (1947); Ex Parte Rody, 348 Mo. 1, 152 S.W.2d 657 (1941), did not involve questions concerning appropriate venue.

   The plain language of Art. 27, § 139, requires that venue for the crime of escape be only where the actual escape takes place.  Therefore I would reverse the judgment of the Court of Special Appeals. 

KARNS v. LIQUID CARBONIC CORPORATION et al. 
No. 168, September Term, 1974
 
Court of Appeals of Maryland
 
275 Md. 1; 338 A.2d 251; 1975 Md. LEXIS 942

 May  15, 1975, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals of Maryland.  Circuit Court for  Anne Arundel  County, Wray, J.

DISPOSITION: Judgment of Court of Special Appeals reversed and case remanded for passage of an order reversing the judgment of the Circuit Court for Anne Arundel County and remanding the case for a new trial; appellee to pay the costs.

CORE TERMS:  intoxication, willful misconduct, wilful misconduct, duty, injured employe, prayer, claimant, wilful, truck, sole cause, injured employee, intoxicated, driving, deceased, ditch, contributing cause, self-inflicted, occasioned, cylinder, drinking, meaningless, departure, decedent, killed, wagon, ound, matter of law, misconduct, drink, brakes

COUNSEL: Lester H. Crowther, with whom was Claude F. McKenzie on the brief, for appellant.

   Glenn C. Parker, with whom were Theodore B. Cornblatt and Smith, Somerville & Case on the brief, for appellees.

JUDGES: Smith, Digges, Levine, Eldridge and O'Donnell, JJ.  Smith, J., delivered the opinion of the Court.

OPINIONBY: SMITH

OPINION: [*2] [**253] Appellant, William J. Karns (Karns), was injured [***4]on June 30, 1972, while operating the truck of his employer, appellee, Liquid Carbonic Corporation (Liquid Carbonic).  The [*3] Workmen's Compensation Commission found "that the claimant's conduct was wilful due to alcoholic intoxication." For that reason, the claim was disallowed.  On appeal to the Circuit Court for Anne Arundel County the jury determined that the injury did not result solely from intoxication but did result from willful misconduct. Accordingly, the determination of the Commission was affirmed.  The Court of Special Appeals affirmed in Karns v. Liquid Carbonic Corp., 22 Md. App. 460, 323 A. 2d 642 (1974). We granted the writ of certiorari in order that we might consider the contention of Karns that under the Maryland Workmen's Compensation Act he could not be denied benefits on the basis of willful misconduct if that willful misconduct involved the consumption of alcoholic beverages since the jury had already determined that Karns' injuries did not result solely from his intoxication.

   Maryland Code (1957) Art. 101, § 45, in effect on the date of the accident provided:

   "Notwithstanding anything hereinbefore or hereinafter contained, no employee or dependent[***5] of any employee shall be entitled to receive any compensation or benefits under this article on account of any injury to or death of an employee caused by self-inflicted injury, the wilful misconduct, or where the injury or death resulted solely from the intoxication of the injured employee." n1
 
Related language is found in §§ 15 and 64.  By § 15 the act is not applicable "where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty." By § 64 there is a presumption "[t]hat the injury did not result solely from the intoxication of the injured employee while on duty."

n1 By Chapter 300 of the Acts of 1972 an additional provision was added relative to drugs effective July 1, 1972.

   [*4] The facts were summarized by Judge Moore for the Court of Special Appeals:

   "Mr. Karns, age 33 at the time of the accident on June 30, 1972, [***6] 200 pounds, an experienced truck driver, married, and the father of two children, had been with the appellee-employer for more than ten years at the time of the hearing before the Commission in August, 1972.  He was also the shop steward of the Teamsters' Union.  The employer ran a dry ice, CO[2] cylinder gas business; 75% to 80% of the customers were independent restaurants and bars and approximately 25% of the business was with the Gino's chain.  Appellant received a salary plus commission.  On the day of the accident, he was driving a 1965 International Truck, van-type, with a load of gas cylinders which weighed approximately 7,000 pounds.  This was not his regular vehicle but he had inspected it and found no mechanical defects.

   "After lunch, he made a delivery to Glacken's Bar on Pulaski Highway.  He was there from 2:25 until about 3:30 during that time delivered 2 cylinders and had some drinks. The barmaid testified that he had as many as six bourbons [**254]and beers ('boilermakers'); that he told her in conversation that he 'had been drinking all day' and that he purchased a 'six-pack' of beer before he left.  Mr. Karns admitted the purchase but denied that he was a[***7] 'drinking man' and testified that he had a total of 'three shots' and 'three small drafts.'

   "When he left Glacken's he was supposed to stop next at a Gino's but traffic on the lot prevented him.  He proceeded to Old Philadelphia Road (Route 7) intending to 'come back in town and do my next stop there.' The accident occurred after he crossed Big Gunpowder River Bridge, about five miles from his last stop.  Appellant testified on cross-examination that it took him 25 minutes to [*5] travel this distance.  Before the bridge, he stated, there is a long, steep hill.  As he proceeded down the hill, the truck started to swerve. He thought something was wrong with the rear wheels because when he applied the brakes, the truck 'leaned' as if capsizing.  He released the brakes, resigned to riding it out, intending to apply the brakes when he reached the bottom.  He had difficulty controlling the vehicle and was using both sides of the road as much as possible; there was no other traffic on the road, he said.  The heavy gas cylinders had broken loose from their chains and the weight was shifting back and forth.  After crossing the bridge at the bottom of the hill, he pumped the brakes. [***8] The right rear wheel locked and the truck overturned, spilling its contents on the roadway.

   "After the accident, it was ascertained that the retread of one of the right rear dual wheels had peeled off.  Mr. Karns testified on cross-examination that this 'caused the truck to jump up and down . . . the cylinders to break loose and the truck to swerve.' The evidence was undisputed, however, that all four rear (dual) tires were still inflated after the accident.

   "A sample of appellant's blood was taken, with his consent, at the hospital to which he was removed.  The test revealed that at 5:45 p.m. when the sample was taken, the blood alcohol concentration was 0.16%.  There was also expert testimony that, at the time of the accident (one hour and 45 minutes before the test) his alcohol concentration was actually between 0.18% and 0.24%.  Under Art. 35, § 100, a blood alcohol concentration of 0.10% raises a presumption that the person's driving ability was impaired; at 0.15%, intoxication is presumed.

   "There was evidence before the jury that the union contract covering employees of Liquid [*6] Carbonic Corporation provided that drunkenness, drinking during working hours or being[***9] under the influence of liquor or drugs during working hours, including lunch time, constituted grounds for immediate dismissal.  The Motor Carrier Safety Regulations of the U. S. Department of Transportation, received in evidence, prohibit (§ 392.S) consuming an intoxicating liquor within 4 hours before having physical control of a motor vehicle and being under the influence of an intoxicating liquor while operating a vehicle; even possession of an intoxicating liquor, regardless of its alcoholic content, while operating a vehicle is prohibited." Id. at 462-64.
 
As pointed out by Judge Moore, Code (1957, 1970 Repl. Vol.) Art. 66 1/2, § 11-902 makes it "unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while he is in an intoxicated condition" or "while his driving ability is impaired by the consumption of alcohol."

   The Maryland Workmen's Compensation Act was enacted by Chapter 800 of the Acts of 1914.  On May 11, 1913, Governor Phillips Lee Goldsborough appointed a commission "to prepare a bill on the question of Employers' Liability and Workmen's [**255] Compensation Laws to be submitted to the[***10] General Assembly at its session held in 1914." The report of that commission to the Governor, submitted under date of November 15, 1913, recommended the enactment of the appended statute, said to be the Uniform Workmen's Compensation Act, § 4 of which provided:

   "No compensation shall be allowed for an injury caused (1) by the employee's wilful intention to injure himself or to injure another, or (2) by his intoxication."

   The proposed act contained no section or language concerning presumptions relative to intoxication similar to [*7] that contained in § 61 of Chapter 800 of the Acts of 1914, § 64 in today's act, to which we have made reference. What was enacted by the General Assembly as § 14 of Chapter 800, with the exception of one word, read as does § 15 today.  It provided, in language identical to that in present § 15, that the coverage was applicable "except where the injury [was] occasioned by the wilful intention of the injured employe to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employe while on duty." It then went on to provide:
 
"Where the injury is occasioned[***11] by the wilful intention of the injured employe to bring about the injury or death of himself or of another, or where the injury results from the intoxication of the injured employe while on duty, neither the injured employe nor any dependent of such employe shall receive compensation under this Act."
 
By Chapter 597 of the Acts of 1916 the word "solely," found in § 15 today, was added to that sentence so that it read:
 
"Where the injury is occasioned by the wilful intention of the injured employe to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employe while on duty, neither the injured employe nor any dependent of such employe shall receive compensation under this Act."
 
The original act provided in § 45, the antecedent of today's § 45:

   "Notwithstanding anything hereinbefore or hereinafter contained, no employe or dependent of any employe shall be entitled to receive any compensation or benefits under this Act, on account of any injury to or death of an employe caused by a self-inflicted injury, the wilful misconduct or the intoxication of such employe."
 
[*8] [***12] This, too, was amended by Chapter 597 of the Acts of 1916 so that it read (then called § 46):

   "Notwithstanding anything hereinbefore or hereinafter contained, no employe or dependent of any employe shall be entitled to receive any compensation or benefits under this Act on account of any injury to or death of an employe caused by self-inflicted injury, the wilful misconduct, or where the injury or death resulted solely from the intoxication of the injured employe."
 
Since § 61 of the original act provided that there was a presumption "[t]hat the injury did not result solely from the intoxication of the injured employee while on duty," as does § 64 today, the amendments in 1916 really only brought all of the language of the act in line with § 61.

   The first case to come before the Court on the subject of intoxication after the enactment of the Workmen's Compensation Act in 1914 was American Ice Co. v. Fitzhugh, 128 Md. 382, 97 A. 999, 1917D Ann. Cas. 33 (1916).  The Court said relative to the facts in that case:

   "The evidence shows that Seymour Fitzhugh was employed by the appellant, the American Ice Company, as driver of a two-ton ice and coal wagon; that his [***13]duties also required him to load and unload the wagon, and that on the 12th of [**256] December, 1914, while driving the wagon of the company, loaded with oysters shells, along North avenue in Baltimore City he fell or was thrown from the wagon and killed. The ice company offered evidence tending to show that he was drunk at the time of the accident, and that the accident was due to his intoxication." Id. at 386.
 
The portion of the opinion pertinent to the question here at hand concerned the propriety of the ruling of the trial court on prayers. The jury had been instructed:
 
"'If they shall find from the evidence that the deceased, Seymour Fitzhugh, met his death in an [*9] accident while in the employ of the American Ice Company, and in the course of his said employment, and that his said death was not due to any self-inflicted injury, or willful misconduct, or intoxication on the part of the said Seymour Fitzhugh, then the verdict of the jury must be for the claimants. And the jury are further instructed that it is presumed by the law, in the absence of substantial evidence to the contrary, that the death of said Seymour Fitzhugh was not occasioned[***14] by his willful intention, and that his said death did not result solely from intoxication while on duty.'" Id. at 390-91.
 
The Court approved that prayer. The employer had offered prayers of which the Court said:
 
"These prayers ignore the provision of the Act which disentitles the employee to recover only where intoxication is the sole cause of the injury which results in death.  The prayers properly present the defense of contributory negligence applicable to ordinary cases of negligence, but the Act in question was designed to abolish the defense of contributory negligence in cases falling within its provisions, and it is only where intoxication is the sole cause, and not the contributing cause of the injury that it can be relied on as a defense to the claim of the employee or his dependents.  In other words under the terms of the Act the injury for which compensation is sought must be due exclusively or entirely to the intoxication of the employee in order to constitute a defense to the claim.  Sub-section 7 of section 61 declares that 'death,' referred to as the basis of compensation under this Act, means 'only death resulting from such injury,' and[***15] where the injury, which results in the death of the employee, results solely from intoxication the defendants are not entitled to compensation." Id. at 391-92 (Emphasis in original.)

   [*10] On motion for modification of the opinion the Court said:

   "Where, therefore, the intoxication of the injured employe is relied on as a defense, it must be made to appear that the injury, that is to say the accident which resulted in the injury for which compensation is sought, was caused solely and exclusively by the intoxication of such employe.  In other words, the injury for which compensation is required is the 'accidental personal injury' of the employe resulting in his 'disability or death,' except where such injury, or the accident resulting in such injury, is attributable solely and exclusively to 'the intoxication of the injured employe while on duty.'" Id. at 393. (Emphasis in original.)

   In S. Rosenbloom, Inc. v. Willingham, 190 Md. 552, 59 A. 2d 311 (1948), the employee drove his car on to the Chesapeake Bay Ferry at Matapeake.  A ferry employee drove it off at Sandy Point and parked it about 75 feet beyond the ferry slip, [***16] facing in the direction of Baltimore.  He had noticed that Willingham staggered slightly when he left the car at Matapeake, but he staggered more than ever and came down the wrong stairway when the ferry reached Sandy Point.  The wife testified [**257] that in their 20 years of married life she had never seen her husband intoxicated. About 35 minutes after the ferry left Sandy Point on its return trip to Matapeake the employee drove his car overboard and was drowned.  The police officer who attempted to revive him did not detect any odor of alcohol or find any bottle on his person.  Among the objects that fell from the vehicle when it was recovered was a half-pint bottle of whiskey, still containing one drink. The employer contended that compensation should be denied on the ground that death was due solely to intoxication while on duty. Judge Henderson there said for the Court:
 
"There was no evidence that would supply any motive for suicide.  Compare Krell v. Maryland Drydock Co., [184 Md. 428, 41 A. 2d 502 (1945)]. No [*11] one saw the decedent take a drink. His conduct may have been due to alcohol or something else.  Even if we should draw the inference[***17] that he was intoxicated, we think the evidence falls short of establishing that intoxication was the sole cause of the accident, as required by the statute.  Compare Southern Can Co. v. Sachs, 149 Md. 562, 131 A. 760, 43 A.L.R. 417; Baltimore Dry Docks & Shipbuilding Co. v. Webster, 139 Md. 616, 628, 116 A. 842, and American Ice Co. v. Fitzhugh, 128 Md. 382, 97 A. 999, Ann. Cas. 1917D, 33.  That intoxication was a contributing cause is not sufficient, it must be the exclusive cause.  The action of the decedent was more suggestive of dementia than intoxication. We cannot say that the trial court was clearly wrong in finding that causes other than intoxication played a part in the accident." Id. at 558.

   Smith v. State Roads Comm., 240 Md. 525, 214 A. 2d 792 (1965), involved the death of an employee of that commission in an accident in which his pickup truck went off of Liberty Road and struck a telephone pole, causing the employee's death.  As Judge McWilliams put it for the Court:

   "In the case before us the fact of intoxication, if not actually admitted, is established, for the first time in Maryland, by evidence which is both overwhelming and unchallenged. [***18] Whether or not the trial judge was clearly erroneous in concluding that the death of Smith resulted solely from his intoxication is the issue raised by appellant's principal contention and the one which we shall consider first." Id. at 529.
 
The case was tried in the Baltimore City Court without a jury.  The trial judge found that death resulted solely from the intoxication of the employee.  The evidence showed the presence of 0.27% alcohol in his blood.  There was no evidence of any mechanical defect in the vehicle nor any evidence of malfunction in its operation.  There was no evidence of [*12] blowout or other tire trouble nor of any defect in the road.  Applying what was then Maryland Rule 886 a (now Rule 886), the Court stated that it could not say that the trial judge's finding that intoxication was the sole cause of the accident was clearly erroneous and thus affirmed the judgment.  Judge McWilliams also said for the Court:

   "Appellant argues that where intoxication and the hazards of the employment concur the claimant must prevail; that Smith, even though intoxicated, was in the course of his employment and compensation cannot be denied his widow.  If [***19]appellant is right, then the Maryland statute is meaningless and we do not agree that it is meaningless. We agree with the New Jersey court that if the employment does no more than supply the setting, the stage or the situation in which the injury occurs, if it is no more than an inactive condition and not a moving cause, compensation must be denied.  Concurrence of intoxication and the setting, alone, is not enough.  There must be in addition, if compensation is to be awarded, some active or moving or contributing cause." Id. at 534-35. (Emphasis in original.)

   [**258] In Balt. Car Foundry Co. v. Ruzicka, 132 Md. 491, 104 A. 167, 4 A.L.R. 113 (1918), the Court first faced the issue of willful misconduct. The employee was crushed in the car-erecting shop of his employer.  As he was starting to leave the shop on his way to his home he tried to pass between two of a number of finished cars standing at intervals on the track and ready to be coupled together and drawn out of the shop by an engine which had been brought to the end of the building for that purpose.  The Court said:

   "It is, of course, perfectly clear that the fatal accident we have described was the result[***20] of Ruzicka's own negligence.  But we agree with the Court below and the State Industrial Accident Commission in the opinion that the highly [*13] imprudent act which caused the unfortunate man's death is not properly to be characterized as willful misconduct. It lacked the element of intentional impropriety which those words imply.  It was a thoughtless and heedless act, but not a willful breach of a positive rule of conduct or duty." Id. at 493-94.

   * * *

   "In the present case it is evident that the death of Ruzicka was due to his erroneous assumption that there was sufficient time for him to pass between the cars before they were moved.  There was in fact ample time for that purpose when he started to cross, but when, after his progress had been interrupted by the conversation in which he became engaged with another workman, he resumed his forward movement, he apparently failed to realize how long he had been delayed. This was a very serious lapse of memory and judgment.  It led him into an imminent peril which he could readily have avoided by ordinary attention.  But in thus neglecting to have proper regard to his safety he was not, in our opinion, guilty of willful [***21]  misconduct within the purview of the Workmen's Compensation Law, which, except in cases of injury produced by such misconduct or self-inflicted, or due to intoxication, provides compensation for the disability or death of employees resulting from accidental personal injury arising out of and in the course of the employment 'without regard to fault as a cause of such injury.'" Id. at 495. (Emphasis in original.)

   In Beasman v. Butler, 133 Md. 382, 105 A. 409 (1918), there was evidence adduced tending to prove that the accident on which the claim was based was the result of an unsuccessful effort made by the claimant to climb on the side of a motor truck as it passed him on a roadway.  The Court referred to Baltimore Car Foundry and said:
 
[*14] "If the appellee in the case at bar in fact attempted to climb upon the side of the passing motor truck, which was moving at the rate of five or six miles an hour, according to the testimony, his act was undoubtedly reckless. But it would not be proper to rule as a matter of law that his sudden and heedless effort to board the truck was 'wilful misconduct' within the adjudicated meaning of those words, and to[***22] direct a verdict against him on that theory.  By an appropriate instruction the question of 'wilful misconduct' was submitted to the jury for their consideration.  The prayer which would have required them to thus characterize the act referred to was properly rejected." Id. at 387-88.

   In Harris v. Dobson & Co., 150 Md. 71, 132 A. 374 (1926), employees had been told at the end of work on a Saturday not to go back into a ditch on Monday until it was shored up.  The foreman was not present on Monday when certain of the employees reported for work.  Harris, stating that he had nothing else to do, went into the ditch and was killed when dirt fell in and crushed him.  The State Industrial Accident Commission found that the death was not caused by an accident arising out of [**259] and in the course of the deceased's employment and that he had been guilty of willful misconduct causing the accident.  On appeal, the Superior Court of Baltimore City found against the claimant solely on the ground of willful misconduct by the deceased. The matter was tried by the court, without a jury.  Under the practice then prevailing questions of fact were not before this Court for review. [***23] This Court said the trial court refused to declare as a matter of law "that there was no evidence legally sufficient to show wilful misconduct on Harris' part, and, at the same time refused to declare . . . that wilful misconduct was shown by uncontradicted evidence." It did grant prayers to the effect that the claimant was "entitled to recover, on other facts subsequently found by the court 'unless the court, sitting as a jury, further f[ound] that by his own wilful misconduct, the said [employee] intended to [*15] place himself in a position whereby he might expect to meet with injury or death, and in carrying out such intention, met his death as the result of the injuries received by him.'" It also declared "that if it were found that on returning to work Monday morning [the employee] did not wait as ordered by the foreman on Saturday, but worked in the ditch and was killed by the caving in, still, '[the widow was] entitled to compensation, unless the court, sitting as a jury, further f[ound] that the failure to follow said instructions constituted such wilful misconduct on the part of the deceased, [employee], as to show that he intended thereby to place himself [***24]in such a hazardous position that injury or death might result as the reasonable consequence of his act.'" The Court said:

   "There was evidence here that the workman who was killed went into the ditch after having been twice warned not to do so until it was shored up.  When he came to work it had not been shored up, there was no one there to shore it up, and no one to give him orders.  And, according to all the evidence, he and his fellow workman, Manley, went into the ditch because they had nothing else to do.  They appear to have assumed that they must work, not thinking of the alternative of temporary idleness, and their mistake might be described as one of misjudgment, rather than that of misconduct. The decision of the question whether, on the uncontradicted evidence, it amounted to wilful misconduct, within the meaning of the statute, is not free from difficulty.  However, the commission, which is a body of men in touch with such practical work, viewed it as wilful misconduct, and, this being true, we have concluded that in this case the lower court was right in taking the question up as one of fact, instead of disposing of it as a question of law on the prayer submitted[***25] for that purpose.  We find that the court, in granting the prayers which it did grant, stated the principles of law [*16] governing the decision on the facts, at least as favorably to the claimant as she was entitled to have them stated; and there was, therefore, no reversible error in any rulings on the prayers." Id. at 76-77.

   In Red Star etc. Coaches v. Chatham, 163 Md. 412, 163 A. 886 (1933), a bus driver was found dead in the garage of his employer a short time after the scheduled time for the departure of the bus of which he was the driver.  The motor of the bus was running and all the doors and windows of the garage were closed.  The testimony of the physicians was that the cause of death was carbon monoxide poisoning.  The State Industrial Accident Commission found the death to be the result of willful misconduct. The jury found for the claimant. The matter was before the Court on the refusal of the trial court to rule as a matter of law that the deceased employee was guilty of willful misconduct. The Court pointed out that taking the testimony as a whole the jury could have found that when the superintendent testified that he communicated to employees rules [***26]against sleeping in buses and starting of the engine when doors and windows [**260] were closed "he might have been thinking of [the employee] as one of a group and taken for granted that he was present when [the] witness talked with the group; or that [the] witness, remembering that he had spoken to the men as he 'would individually see the several men,' might have thought he had spoken to the decedent personally, and yet it was quite possible that he missed this particular man.  Besides, the jury had the right to disbelieve [the employer's] witnesses." It further said:
 
"'As was stated in the opinions in those cases [(Baltimore Car Foundry, Beasman, and Harris)], not all violations of rules or orders amount to wilful misconduct which, under the statute, disentitles an injured workman to compensation.  Few operations, perhaps none, can be carried out in strict accordance with rules and orders.  Some departures in practice are inevitable.  And we must assume [*17]that the Legislature had this in mind, and did not intend to deny compensation for injuries resulting from such ordinary departures. The very words 'wilful misconduct,' in their general[***27] acceptation, mean something else.  The distinction has been variously expressed, but, while the expressions are helpful, we are not prepared to accept any of them as giving final definitions.  We must, of course, avoid restricting the words of the statute by explanations adopted in particular cases.  That wilful misconduct may consist in disregard of rules or orders has been decided in many cases. Baltimore Car Foundry Co. v. Ruzicka, supra; authorities collected in 23 A.L.R. 1168, and 26 A.L.R. 166. But there must be something more than thoughtlessness, heedlessness, or inadvertence in it.  There must be, at least, a wilful breach of the rule or order.  Baltimore Car Foundry Co. v. Ruzicka, supra; Gonier v. Chase Companies, 97 Conn. 46, 57, 115 A. 677, 19 A.L.R. 83; Mancini v. Scovill Mfg. Co., 98 Conn. 591, 119 A. 897.'
 
   "It cannot be said that it was established, as a matter of law, that the decedent was advised of the alleged rules and appreciated the danger; or that, if he did, any disregard of them by him was deliberate and wilful." Id. at 416-17.

   From the cases on intoxication one distills that when an employer relies upon intoxication as a defense an employee[***28] to recover compensation must show that his employment contributed to the occurrence of the accident, that "[c]oncurrence of intoxication and the setting, alone, is not enough." To bar the employee on this ground from recovering compensation the intoxication must be the sole cause of the injury.  It is not sufficient that it is a contributing cause. In this regard the employer has the burden of overcoming the statutory presumption "[t]hat the injury did not result solely from the intoxication of the injured employee while on duty."

   [*18] From the cases on willful misconduct one learns that not all violations of rules or orders amount to willful misconduct, that the General Assembly "did not intend to deny compensation for injuries resulting from . . . ordinary departures" from rules, that "there must be something more than thoughtlessness, heedlessness, or inadvertence in" the employee's conduct to deny him compensation.  The mere fact that he neglected to have proper regard for his own safety is not sufficient to bar him.

   We have said that a hornbook rule of statutory construction is that in ascertaining the intention of the General Assembly, all parts of a statute are [***29]to be read together to find the intention as to any one part and that all parts are to be reconciled and harmonized if possible and that a corollary rule of construction is that if there is no clear indication to the contrary and it is reasonably possible, a statute is to be read so that no word, clause, sentence, or phrase shall be rendered surplusage, superfluous, [**261] meaningless, or nugatory.  See, e.g., Kadan v. Bd. of Sup. of Elections, 273 Md. 406, 415, 329 A. 2d 702 (1974); A. H. Smith Sand & Gravel v. Dep't, 270 Md. 652, 659, 313 A. 2d 820 (1974); Anne Arundel County v. Moushabek, 269 Md. 419, 426, 306 A. 2d 517 (1973); Parker v. Junior Press Printing, 266 Md. 721, 725, 296 A. 2d 377 (1972); Prince George's County v. Beard, 266 Md. 83, 91, 291 A. 2d 636 (1972); Baltimore City v. United Stores, 250 Md. 361, 368, 243 A. 2d 521 (1968); and Thomas v. Police Commissioner, 211 Md. 357, 361, 127 A. 2d 625 (1956).

   It must be borne in mind in the current case that the only misconduct alleged relates to intoxication. It is easy enough to conceive of bases for the jury's reasoning in this case.  It might well have reasoned that it could not say [***30]that intoxication was the sole cause of the injury because it believed the testimony of Karns relative to the shifting load in the truck which it believed contributed to the accident, thus not making intoxication the sole cause of the accident, and yet the jury might have believed that without the impairment of his faculties by the alcohol he had consumed in violation of law and company regulations he would have [*19] been able to cope with the shifting load, thereby making the injury one caused by his misconduct, his drinking. The problem comes when one attempts to read the statute "so that no word, clause, sentence, or phrase shall be rendered surplusage, superfluous, meaningless, or nugatory." We regard intoxication as willful misconduct. This point of view is reinforced by statements in In re Von Ette, 223 Mass. 56, 111 N. E. 696, 1916D L.R.A. 641 (1916); and Frazer v. Riddell [1914] S. C. 125, [1913] 2 Scot. L. T. 377, 51 Scot. L. R. 110, 7 B.W.C.C. 841. The statements in both of those cases to which we refer are dicta.  Nevertheless, they are highly persuasive.  In Von Ette the Supreme Judicial Court of Massachusetts said:

   "If the deceased met[***31] with his injury by reason of his serious and willful misconduct, no compensation can be awarded, and it may be conceded that if he voluntarily took his life, or if his fall from the roof was due to a condition of intoxication the ruling requested [(that no compensation could be awarded)] should have been given." Id. 111 N. E. at 697.
 
In Frazer it was said in the case stated that when the employee began his duties on the date in question "he was sober," but "[a]t the time of the said accident he was under the influence of drink and was unfit for his work." The matter under discussion was whether the accident arose "out of and in the course of his employment, but which was brought about by his serious and wilful misconduct, namely, his intoxicated condition?  or did the injury by accident arise whilst 'in the course of' his employment but not 'out of' his employment?" The Lord President said:
 
"A man may be engaged in the performance of his work and an accident may occur incidental to his work, and therefore 'out of' his employment, even although he is in a state of intoxication so great as to be, in the opinion of ordinary people, unfit for the performance[***32] of his work.  If an accident befalls [*20] him under these conditions, it appears to me that, owing to his intoxicated condition, it is rightly called an accident due to serious and wilful misconduct, but it is none the less an accident arising 'out of' his employment, because it is incidental to it." Id. 7 B.W.C.C. at 844-45.
 
See also Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S. E. 208, 211 (1929); Gooseby v. Pinson Tire Co., 65 Ga. App. 837, 16 S.E.2d 767, 769 (1941); Banks v. Dept. of Education, 462 S.W.2d 428 (Ky. 1971); Williams v. Llandudno Coaching, etc., Co., [1915] 2 K. B. 101, 31 Times L. R. (Eng.) 186, 84 L.J.K.B.N.S. 655, [1915] W.C. & Ins. Rep. 91, [1915] W. N. 52, 59 Sol. Jo. 286, 8 B.W.C.C. 143, 147; 99 C.J.S. Workmen's Compensation § 263 at 908 [**262] (1958); and 58 Am. Jur. Workmen's Compensation § 207 (1948).  The fact that there are not more cases on this subject is undoubtedly explained by the statement in 1A Larson, Workmen's Compensation § 34.31 at p. 6-62 (1973) that "[t]hirty-six states make intoxication the basis of a separate defense, and three others make it a ground for reduction in the[***33] amount of the award."

   We can conceive of situations in which a jury might find that an accident was not caused solely by an employee's intoxication and yet find him to have been guilty of some willful misconduct other than intoxication which might reasonably be said to be a proximate cause of the accident.  It must be borne in mind that there may be more than one proximate cause of an accident.  Thomas v. Corso, 265 Md. 84, 103-04, 288 A. 2d 379 (1972); Hillebrecht v. Stein, 245 Md. 93, 96, 225 A. 2d 44 (1966); and Yellow Cab Co. v. Bonds, 245 Md. 86, 90, 225 A. 2d 41 (1966). Here, however, the only suggested willful misconduct involves intoxication. Moreover, we regard it as highly significant that the original proposal for a workmen's compensation act called for barring an employee from receiving compensation where the "injury [was] caused . . . by his intoxication," with no mention of any type of willful misconduct other than intoxication as a bar and no presumption written into it relative to intoxication, but what was enacted by the [*21] General Assembly barred the employee on the basis of willful misconduct "or the intoxication of such employe" with a presumption[***34] written into the statute "[t]hat the injury did not result solely from the intoxication of the injured employe while on duty." The General Assembly punctuated that statement when it added to the present § 45 at the very next session in line with that presumption that an employee is barred from receiving compensation if his injury results from his willful misconduct or "result[s] solely from the intoxication of the injured employe."

   With the language of the statute as it is and with the legislative history behind that language, we conclude that the trial judge erred under the facts of this case in submitting to the jury as issue number one whether the claimant's injury resulted solely from his intoxication and as issue number two whether the injury resulted from his willful misconduct and then instructing the jury on the latter point that if it "f[ound] that the drinking and driving was a willful breach of a rule or order of his employer or of the Maryland law against driving while the ability [was] impaired and if [it] f[ound] that as a result of this disregard of the rule or order or the law a chain of events developed which caused the accident in question, then [it] [***35] must find that the accident resulted from his willful misconduct." Accordingly, we shall award a new trial.

   Judgment of Court of Special Appeals reversed and case remanded for passage of an order reversing the judgment of the Circuit Court for Anne Arundel County and remanding the case for a new trial; appellee to pay the costs. 

PETERS v. RAMSAY 
No. 40, September Term, 1974
 
Court of Appeals of Maryland
 
273 Md. 21; 327 A.2d 472; 1974 Md. LEXIS 687

 November  7, 1974, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals of Maryland.  Circuit Court for  Anne Arundel  County, Beardmore, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed; appellee to pay costs.

CORE TERMS:  lane, roadway, intersection, traveled, right turn, northbound, shoulder, width, traffic, highway, collision, berm, driving, surface, driver, solid, curb, matter of law, medical center, constructed, southbound, pavement, improved, driveway, feet, guilty of contributory negligence, motor vehicle, new trial, constituting, correctly

COUNSEL: Henry L. Conway, Jr., for appellant.

   C. MacNair Speed, with whom were Lord, Whip, Coughlan & Green, P.A. on the brief, for appellee.

JUDGES: Singley, Smith, Digges, Levine, Eldridge and O'Donnell, JJ.  Levine, J., delivered the opinion of the Court.

OPINIONBY: LEVINE

OPINION: [*22] [**473] This is a personal injury case arising out of a collision on May 12, 1971, between two automobiles being operated by the parties at the intersection of Ritchie Highway and Hahn Drive in Anne Arundel County. As a result of injuries suffered by appellant, she brought suit against appellee in the Circuit Court for Anne Arundel County.  There, the case was tried before a jury which, having found upon special issues that appellee was guilty of negligence proximately causing the collision, and that appellant was free of contributory negligence, rendered a verdict in favor[***3] of the latter in the sum of $7,000. n1 Subsequently, the trial judge (Beardmore, J.) denied a motion for judgment n.o.v. and a new trial. On appeal to the Court of Special Appeals, the judgment in favor of appellant was reversed upon the ground that she was guilty of contributory negligence as a matter of law, Ramsay v. Peters, 20 Md. App. 61, 314 A. 2d 722 (1974). In light of the unusual physical circumstances which prevailed, novel questions arise under the motor vehicle code; hence, we granted certiorari.

n1 Appellee also sued appellant for personal injuries resulting from the same collision; hence, the two cases were tried together pursuant to an order of consolidation.  Having been found guilty of negligence by the jury, appellee was, of course, barred from recovery.  Although he sought unsuccessfully in the Court of Special Appeals to challenge the submission of his negligence vel non to the jury, he does not raise that question in this Court.

   The collision occurred while appellant was proceeding[***4] in a northerly direction on Ritchie Highway. Appellee, who had been southbound, was making a left turn to proceed easterly on Hahn Drive which intersects Ritchie Highway at a right angle on the east side only.  The cars collided at a point established by a state trooper, who investigated the accident, as being in what we shall identify for convenience as the right of three northbound lanes in Ritchie Highway, approximately midway between an imaginary extension of the north and south sides of Hahn Drive.

   [*23] Ritchie Highway is a divided highway with a grass median strip separating the northbound and southbound lanes. The center and left northbound lanes are separated from each other by an interrupted white line.  There are also left turn lanes at the Hahn Drive intersection for both northbound and southbound traffic on Ritchie Highway. Between intersections, the right lane is separated from the center lane by a solid white line.  At the time of this accident, the right lane on Ritchie Highway began at the entrance to a medical center located in the southeast quadrant of the Hahn Drive intersection and extended northward to the intersection at State Route 648, an overall distance [***5]of some 800 feet. All three northbound lanes were similar to each other in width, composition [**474] and appearance.  Apparently, Ritchie Highway initially had been constructed as a predominantly four-lane divided highway, and remained that way for much of its length, although not in this vicinity, on the day of the accident.  Except to the extent that the solid white line separating the right lane from the center lane can be so regarded, there were no signs or devices restricting the use of the right lane. There were curbs in some parts of the east side of Ritchie Highway, just above and below Hahn Drive.

   As appellant was proceeding in a northerly direction on Ritchie Highway, she reached the entrance to the medical center, the point at which the northbound segment of Ritchie Highway widened from two to three lanes. There, she observed that traffic in both the left lane and what had become the center lane was backed up to that point from Route 648.  Since the righthand lane was virtually unoccupied, she moved into it prior to reaching Hahn Drive, not for the purpose of turning right at that intersection, but with the intention of entering a service station approximately 230[***6] feet north of Hahn Drive.

    According to appellant, the right lane, which abutted an assortment of commercial establishments in that area, was ordinarily used by traffic to make a right turn. The trooper confirmed that it was "used by the public in general for right turns." Appellant explained that, based on her prior [*24] experience in that vicinity, it was necessary to enter the right lane in advance if one was preparing to make a righthand turn, because to do so directly from the center lane would subject that person to the danger of being struck by other vehicles which might already have occupied the right lane.

   As appellee reached the intersection, proceeding in a southerly direction, he stopped to make his left turn.  At that point, the northbound traffic, which was backed up, had allowed sufficient room for vehicles wishing to turn easterly into Hahn Drive.  The lead driver in the center or left northbound lane motioned to appellee as if to wave him on.  Upon entering the right lane, he struck appellant's car on its left side, while, as we have indicated, it was approximately midway through the intersection.

   In essence, the primary contention of appellee at every stage[***7] of these proceedings has been that appellant is barred from recovery as a matter of law because her automobile was positioned at a point where it should not have been under the circumstances which then obtained.  Indeed, even here he clings to the notion, which he advanced at the prior levels, that appellant was actually on an "improved" berm or shoulder. Appellant, of course, has consistently maintained that she was properly in the right lane, and that the failure of appellee to yield the right of way was the sole proximate cause of the collision. The focal point for these conflicting claims -- as submitted to the jury and at both appellate levels -- has been the following provisions of the motor vehicle laws, Md. Code (1957, 1970 Repl. Vol.) Art. 66 1/2:
 
§ 1-132:

   "Highway means the entire width between the boundary lines of every way or thoroughfare of any kind used by the public for purposes of vehicular travel, whether actually dedicated to the public and accepted by the proper authorities or otherwise."
§ 1-177:

   "Roadway means that portion of a highway [*25] improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder [***8].  If a highway includes two or more separate roadways the term 'roadway' as used herein refers to any such roadway separately but not to all such roadways collectively." (emphasis added).
§ 11-304:

   "(a) The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following [**475] conditions, and in all cases subject to the requirements of subsection (b):

   * * *

   "(b) The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting this movement in safety.  In no event shall this movement be made by driving off the pavement or main traveled portion of the roadway." (emphasis added).
 § 11-402:

   "(a) The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard."

   The ultimate question upon which this case turns, as the Court of Special Appeals recognized, is whether appellant, at the point of impact, was on the "main traveled portion of the roadway" within the[***9] meaning of § 11-304 (b).  In effect, judging by the tenor of its jury instructions and its decision in denying appellee a new trial and judgment n.o.v., the trial court concluded that this was a question for the jury.  The Court of Special Appeals held, correctly, of course, that this called for an interpretation of a statute, which is a function of the court, not the jury.  Falcone v. Palmer Ford, 242 Md. 487, 493-94, 219 A. 2d 808 (1966); Aravanis v. Eisenberg, 237 Md. 242, 259, [*26] 206 A. 2d 148 (1965); Vogelsang v. Sehlhorst, 194 Md. 413, 419, 71 A. 2d 295 (1950); see Hunt v. Montgomery County, 248 Md. 403, 415, 237 A. 2d 35 (1968).

   Indeed, save for the conclusion, we are in agreement with virtually the entire opinion of the Court of Special Appeals.  For example, we think it quite correctly observed:

   "It is from the physical characteristics of the area in question, and the use ordinarily made of it, in the absence of governing traffic control devices or markers, that its lawful use is to be determined.  To make that determination, the court looks to the area's adjacency to the curb and to the main traveled portion of the roadway; to the nature[***10] of its surface compared with the adjacent surface; and to the uses ordinarily made of it by the public generally.

   "At the point where Miss Peters entered it, the lane in question adjoined the curb to the right and the main traveled portion of the roadway to the left; its surface was continuous with and physically indistinguishable from the other pavement, except for an unbroken white line painted on the surface; and it was ordinarily used by the public in general for right turns.

   * * *

   "Clearly the lane which Miss Peters entered was a well-defined improved extension of the normal width of the roadway, which not only was in fact used but was lawfully used by the general public as a right turn lane.  Neither the fact that the lane had been privately constructed on public property nor that it was separated from the main traveled portion of the roadway by a solid white line made it any the less a lawful right turn lane. n2

   [*27] "Up to the intersection with Hahn Drive, both the right turn lane and the left turn lane were extensions of the normal width of the roadway, not only capable of but in fact designed and provided for the very purpose of conducting a special[***11] kind of traffic. . . ." 20 Md. App. at 68-69 [**476](emphasis added).
 
We part company, however, on reaching the following statement:
  
". . . At no time however, was either turn lane a part of the main traveled portion of the roadway. The word 'main', as used in Art. 66 1/2, § 11-304 (b), must be given meaning, and we conclude that it was used to distinguish the through lanes constituting the normal width of a roadway from a roadway enlarged where necessary by additional lanes for turns or other special purposes.  When the right turn lane on which Miss Peters was driving reached the intersection of Hahn Drive, it ceased to be a turn lane. Her intention to make a right turn at some more distant point did not entitle her to use it as a through lane across Hahn Drive.  In using the lane for traversing the intersection she was passing other vehicles on the right by driving off the main traveled portion of the roadway. . . ." 20 Md. App. at 69.

n2 The evidence disclosed that the paving of the right lane south of Hahn Drive for a distance of some 200 feet -- the area in front of the medical center -- had been privately constructed a few years earlier under a permit from, and in accordance with specifications prescribed by, the State Roads Commission.

[***12]

   In effect, the Court of Special Appeals held that even though the right lane was physically indistinguishable from the other pavement in the highway, and was lawfully used by the general public as a right turn lane -- a purpose for which it had been designed -- it was nevertheless not part of "the main traveled portion of the roadway." The rationale for this conclusion, as we have noted, was:
 
". . . The word 'main', as used in Art. 66 1/2, § 11-304 (b), must be given meaning, and we conclude that it was used to distinguish the through lanes constituting the normal width of a roadway from a roadway enlarged where necessary by additional [*28] lanes for turns or other special purposes." 20 Md. App. at 69.

   With this, we cannot agree.  We are of the view that the right lane here was, both in law and in fact, part of the "main traveled portion of the roadway" within the meaning of § 11-304 (b).  What constitutes the "main traveled portion of the roadway" is incapable of precise definition, and likely will vary with the physical facts prevailing in a particular case.  We think these words were generally intended to distinguish that portion of the roadway actually and [***13] ordinarily used by the traveling public, whether for through driving or making a right turn, from the remainder of the highway, including the shoulder or berm, cf. Schulte v. Schultz, 199 N.W.2d 39, 41 (S.D. 1972). The physical facts here must be viewed in light of that broad definition.

   The evidence was uncontradicted in showing that other than the solid white line, which even appellee concedes is a guide marker rather than a governing control, there were no other signs or signals of any kind requiring motorists, once having entered the lane, to make the first right turn; or, indeed, to make any right turn at all.  It was also undisputed that the lane was ordinarily or generally used by the public, if only for making right turns.  It was similar in width and composition to the other lanes, and was equally capable of carrying traffic. cf. Norris v. Wolfensberger, 248 Md. 635, 639, 237 A. 2d 757 (1968). In some parts of Ritchie Highway near this intersection, the right lane is even bounded on the east by a curb. See Zakrzewski v. Hyronimus, 136 N.W.2d 572, 575 (S.D. 1965). Contrary to the argument advanced by appellee -- tacitly rejected by the Court of Special Appeals[***14] -- the right lane was not a berm or a shoulder. Webster's Third New International Dictionary (1971) defines a shoulder as "the part of a roadway outside of the traveled way on which vehicles may be parked in an emergency." (emphasis added).  We do not suggest this is the only use, but clearly a shoulder is not part of the "traveled way."

   From what we have said, our disagreement with the holding that the word [**477]"main" refers only to the "through" [*29] lanes is apparent.  Nor do we accept the notion that appellant, having entered the right lane below Hahn Drive, was compelled to make the first right turn at the risk of becoming an interloper if she continued through the intersection. The unsoundness of this argument becomes apparent when one notes the number of business establishments abutting the right lane with driveways in close proximity to each other.  To require a motorist entering one of those driveways to make a right turn abruptly from the high-speed center lane without affording the opportunity for decelerating well in advance would, in our judgment, invite likely disaster.

   In sum, at the point of impact, appellant was upon the "main traveled portion [***15] of the roadway" while operating her automobile in the right lane. Therefore, since she did not violate § 11-304 (b), she was not guilty of contributory negligence as a matter of law.

   Judgment of the Court of Special Appeals reversed; appellee to pay costs. 

ANNE ARUNDEL COUNTY BAR ASSOCIATION, INC. v. COLLINS 
Misc. Docket (Subtitle BV) No. 1, September Term, 1973
 
Court of Appeals of Maryland
 
272 Md. 578; 325 A.2d 724; 1974 Md. LEXIS 794

 October  9, 1974, Decided

   PRIOR HISTORY: [***1]

   Petition for discipline filed by  Anne Arundel  County Bar Association, Inc. against John Sellers Collins.  A three judge panel (MacGILL, C.J., and WEANT and WRAY, JJ.) recommended disbarment, and the respondent filed exceptions to said recommendations.

DISPOSITION: It is so ordered.

CORE TERMS:  deposition, disciplinary, lawfully, laches, disciplinary proceeding, practice of law, disadvantage, confronted, former action, indictment, Maryland Rules of Procedure, improperly admitted, discovery, commencement, disqualified, suspension, directing, constitutional rights, criminal prosecution, vexatious, sixty-day, bribery, suspend, party asserting, Rule BV4, professional misconduct, criminal case, mandatory, recommendation, self-imposed

COUNSEL: William A. Franch, with whom were Joseph P. Manck and Goldsborough & Franch on the brief, for John Sellers Collins.

   Ronald A. Baradel, with whom was Roy D. Cromwell on the brief, for Anne Arundel County Bar Association, Inc.

JUDGES: Murphy, C. J., and Singley, Smith, Digges, Levine, Eldridge and O'Donnell, JJ.  Levine, J., delivered the opinion of the Court.

OPINIONBY: LEVINE

OPINION: [*579] [**725] This disciplinary proceeding was instituted on March 1, 1973, when the Anne Arundel County Bar Association, Inc. (the Bar Association) filed a petition in this Court against respondent, John Sellers Collins.  Two charges were lodged against him, which dealt essentially with allegations that in his position as attorney for the Board of License Commissioners, he had bribed two members of that board in order to influence their decisions regarding two applications for alcoholic beverage licenses.
 
   Pursuant to Maryland[***4] Rule BV3, this Court passed an order directing that the charges be transmitted to the Circuit Court for Anne Arundel County to be heard and determined by a panel of three judges of the Fifth Judicial Circuit.  After extensive proceedings in that court, the panel, which ultimately concluded the matter, recommended that respondent be disbarred from the practice of law in this state.  He then [**726] filed timely exceptions in this Court to that recommendation.

   [*580] On May 9, 1969, the Grand Jury for Anne Arundel County returned five indictments containing nine counts charging respondent with criminal offenses related to violations of the Maryland bribery laws.  The charges were removed to the Circuit Court for Washington County, and came on for trial before that court on June 22, 1970.  Respondent was found guilty on all counts and received concurrent two-year sentences.  His conviction was reversed by the Court of Special Appeals in Collins v. State, 12 Md. App. 239, 278 A. 2d 311 (1971), on the ground that the State's taking of the deposition of one of the Board members, David L. Sullivan, on July 19, 1969, in the absence of respondent, "violated . . . his [respondent's] [***5] right to be confronted with Sullivan, who was a witness against him, as guaranteed by the federal and State constitutions." 12 Md. App. at 250.

   We granted the State's petition for Writ of Certiorari and affirmed the judgment of the Court of Special Appeals in State v. Collins, 265 Md. 70, 288 A. 2d 163 (1972). In an opinion written for this Court by Judge Digges, we held the failure to comply with the requirements of Rules 727 and 775, that the accused "be present at the taking of a deposition" taken "at the instance of the prosecution," to be of constitutional dimension under the Sixth and Fourteenth Amendments to the Federal Constitution and Article 21 of the Maryland Declaration of Rights; and that the constitutional right of the accused to be confronted by the witness had not been waived. n1

n1 Although the case was remanded for a new trial, the State apparently determined that it could not proceed without the Sullivan deposition.

   Following our decision, the Bar Association elected to initiate disciplinary [***6]proceedings.  Previously, on June 24, 1970, the day following respondent's conviction, a meeting of the Executive Committee of the Bar Association had been held to consider the commencement of disciplinary proceedings against respondent.  What followed was an agreement between the parties whereby the charges were to be withheld pending review of the conviction by the Court of Special Appeals in exchange for respondent's self-imposed [*581] suspension from the practice of law. He also indicated that in the event he was unsuccessful on appeal, he would tender his resignation from the Bar pursuant to Rule BV6.

   In excepting to the recommendation of disbarment, respondent raises these contentions, all of which were also considered by the panel:
 
   1. That the disciplinary proceedings are barred by limitations and laches.

   2. That under the Maryland Rules of Procedure, the deposition of David L. Sullivan -- which had been the basis for reversal of the criminal conviction -- should not have been admitted in evidence before the panel.

   3. That the deposition should have been suppressed on constitutional grounds because it violated respondent's right to be confronted by his accuser. [***7]

   4. That the panel should have disqualified itself.

   We find it unnecessary to consider the third question.

   (1) (a)

   In contending that these proceedings are barred by limitations and laches, respondent observes that despite his indictment by the Grand Jury on May 9, 1969, the Bar Association did not actually file its petition in this Court until March 1, 1973.  During that interval, the following events ensued: On June 23, 1970, he was convicted; on the following day -- June 24 -- the meeting was held which resulted in his voluntarily imposed suspension; on June 9, 1971, the [**727]Court of Special Appeals reversed the conviction; on March 15, 1972, that decision was affirmed by this Court, which resulted in the issuance of the mandate thirty days later; and on November 21, 1972, the Executive Committee of the Bar Association voted to initiate these proceedings.

   In asserting limitations, respondent advances a twofold contention.  First, he argues that the general three-year [*582] period of limitations set forth in Maryland Code (1957, 1972 Repl. Vol.) Art. 57, § 1 applies; and since the cause of action accrued on May 9, 1969 -- the date of the indictment -- more than[***8] three years elapsed before the petition was filed on March 1, 1973.  Secondly, he relies on Code (1957, 1968 Repl. Vol.) Art. 10, §§ 12 and 13, claiming that the Bar Association was required "to prosecute the charges" not "more than sixty days from the date" of a court order directing it to do so. n2 There is no merit in either contention.

n2 In relevant part, § 12 provides:
 
". . . Whenever a judge of any of the several courts of this State shall have reasonable ground to believe that any attorney admitted to the practice of law . . . is guilty of professional misconduct . . . [or] crime involving moral turpitude . . . he shall issue an order directed to the bar association and/or State's attorney of the city or county . . . requiring said bar association and/or State's attorney to prosecute the charges named in said order on a day specified therein, which day shall not be less than fifteen nor more than sixty days from the date of said order . . . ."

   Section 13 provides that where charges are brought by any bar association ". . . such proceedings shall be had as if said charges had been filed by the court and specified in the order directing the prosecution thereof, referred to in § 12 of this article.  . . ."

[***9]

   Although it does not appear that we have considered the question previously, courts elsewhere have uniformly held that disciplinary proceedings against attorneys are not barred by a general statute of limitations, In Re Heinze, 47 N.W.2d 123, 125 (Minn. 1951); In Re Woodward, 300 S.W.2d 385, 387 (Mo. 1957); State v. Bates, 162 Neb. 652, 77 N.W.2d 302, 304 (1956); In Re Wright, 310 A. 2d 1, 9 (Vt. 1973); see In Re Ratner, 194 Kan. 362, 399 P. 2d 865, 873 (1965); Harrison v. Commonwealth, 305 Ky. 379, 204 S.W.2d 221, 222 (1947). This is so primarily because a disciplinary proceeding is neither an action at law, Maryland St. Bar Ass'n v. Boone, 255 Md. 420, 430, 258 A. 2d 438 (1969); Braverman v. Bar Ass'n of Balto., 209 Md. 328, 121 A. 2d 473 (1956), cert. denied, 352 U.S. 830, 77 S. Ct. 44, 1 L.Ed.2d 51 (1956); nor a criminal prosecution, Balliet v. Balto. Co. Bar Ass'n, 259 Md. 474, 478, 270 A. 2d 465 (1970); Braverman v. Bar Ass'n of Balto., supra, at 348. In Braverman, supra, we said:

   "The action of a court in exercising its power to [*583] disbar or suspend an attorney is judicial in character, but the inquiry is in the nature [***10]of an investigation by the court into the conduct of one of its own officers, and is not the trial of an action at law, as the order which is entered is only an exercise of the disciplinary jurisdiction which a court has over its officers.  . . ." 209 Md. at 336.
 
We hold that the general period of limitations prescribed by Art. 57, § 1 does not apply to disciplinary proceedings brought against members of the Bar.

   The contention that this proceeding was not brought within the sixty-day period specified in Art. 10, § 12 is equally without merit.  We have just rejected precisely the same argument in Maryland State Bar Association, Inc. v. Robert Harry Frank, 272 Md. 528, 325 A. 2d 718 (1974), where, after noting our prior disposition of the identical question in Balliet, supra, we held that the sixty-day time limitation is directory, not mandatory. That holding is dispositive [**728] here, and, therefore, compels a rejection of respondent's contention.

   (1) (b)

   For his defense of laches, respondent relies chiefly upon two Florida cases: The Florida Bar v. Randolph, 238 So. 2d 635 (Fla. 1970) and The Florida Bar v. Wagner, 197 So. 2d 823 (Fla. 1967). Neither[***11] is apposite, primarily because, unlike this case, they did not arise out of criminal charges.  In this connection, it is interesting to note that in a Florida case not cited by respondent -- where commencement of the disciplinary proceedings was deferred pending appellate review of criminal charges -- the Florida Supreme Court observed that deferment in such circumstances was the course recommended by a special committee of the American Bar Association chaired by Mr. Justice Tom C. Clark.  The Florida Bar v. Craig, 238 So. 2d 78 (Fla. 1970). In any event, respondent has cited no cases in which disciplinary proceedings against an attorney have been dismissed upon the ground of laches.
 
   [*584] What the Supreme Court of Oregon said regarding the defense of laches in In Re Weinstein, 459 P. 2d 548 (Ore. 1969), cert. denied, 398 U.S. 903, 90 S. Ct. 1689, 26 L.Ed.2d 61 (1970), where it was held that a bar association delay of twenty-seven months did not justify dismissal, is instructive here:

   "It is unnecessary to define in this case the proper remedy for vexatious and unreasonable delay on the part of the Bar.  None has been shown in this case. It ought to be made[***12] clear, however, that the primary purpose of professional disciplinary proceedings is to protect the public.  The punishment of an offending member of the profession is indeed a serious matter, but it is incidental to the protection of the public.  If the conduct of a member of the Bar disqualifies him from the practice of law, it would not be in the public interest to dismiss the disciplinary proceedings for no reason other than the Bar's failure to prosecute them with the proper dispatch." 459 P. 2d at 549 (emphasis added).

   Basic to the defense of laches is the need to show some disadvantage or prejudice to the party asserting it.  There must be either prejudice or circumstances making it inequitable to grant the relief sought, Arundel Supply Corp. v. Cason, 265 Md. 371, 376, 289 A. 2d 585 (1972). We perceive no disadvantage or prejudice to respondent arising out of the delay here.  Somewhat to the contrary, in his letter of July 3, 1970, agreeing to the self-imposed suspension, he wrote:
 
". . . it is my opinion that disciplinary proceedings at this time [are] premature if the sole question of professional conduct be that of my conviction of the crime of[***13] bribery until there has been a final Appeal from said conviction.  . . .

   "It is believed that a disciplinary proceeding pending my Appeal of Criminal charges would provoke considerable notoriety and could possibly be seriously prejudicial to my Appeal.  I do not wish [*585] to be forced to defend myself at this time, whether or not the charges are meritorious.

   "Therefore, it is with the understanding that charges will not be filed against me for professional misconduct pending the prosecution of my Appeal to the Court of Special Appeals, I agree to voluntarily suspend the practice of law as of August 1, 1970 . . . ."

   The delay of less than one year between the issuance of the mandate following our decision and the commencement of these proceedings can hardly be characterized as unreasonable or vexatious. More to the point, respondent has produced no evidence of "disadvantage or prejudice" which he claims to have suffered because of that delay.  Hence, he has failed to sustain [**729] the defense of laches -- assuming without deciding its applicability to disciplinary proceedings -- and the panel was correct in refusing to dismiss the petition upon that ground.

   (2) [***14]

   It is unnecessary for us to summarize extensively the circumstances under which the witness, David L. Sullivan, one of the two board members whom respondent was charged with bribing, was deposed.  Detailed accounts of those facts may be found in Collins v. State and State v. Collins, both supra. Suffice it to say that the deposition was taken by the State to perpetuate the witness's testimony for use as evidence in the criminal trial against respondent; and that the latter did not have notice that the deposition was to be taken, and consequently was not present during the interrogation.  His attorney, however, did attend and cross examine the witness.  As we have already noted, the deposition was nevertheless admitted in evidence and was the basis for reversal of respondent's conviction by the Court of Special Appeals and the affirmance of that decision by this Court.

   Anticipating respondent's objection in these proceedings, the Bar Association filed a motion for a pretrial decision admitting the deposition. After fully considering respondent's [*586] arguments for suppressing the testimony, both constitutional and procedural, the panel granted the Bar Association's [***15]motion.  As we have indicated, it is unnecessary to reach the constitutional issue, since we think the deposition was improperly admitted under the Maryland Rules of Procedure. As we shall note, however, the question to be decided here is controlled to a significant extent by State v. Collins, supra, even though it was bottomed on constitutional grounds.

   At the outset, we should note that under Rule BV4 a, chapter 400 of the Maryland Rules of Procedure -- which governs the taking of depositions and discovery generally in civil cases -- is expressly made applicable to disciplinary proceedings.  The parties recognize that the use of a deposition taken in a previous action is governed by Rule 413 a 5 which, in relevant part, provides:
 
". . . [W]hen an action in any court of this State or of any other state or of the United States has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor." (emphasis added).

   Whether the deposition here was "lawfully[***16] taken" within the meaning of this Rule is the determinative question to be decided here.  Although this subsection of the Rules is virtually a carbon copy of the language contained in Rule 32 of the Federal Rules of Civil Procedure, it is interesting to note that the words "lawfully taken" do not appear to have been the subject of any prior federal decision.

   The Bar Association maintains that whether the deposition was "lawfully taken" should be determined by criteria made expressly applicable to these proceedings rather than those applied to criminal cases.  Otherwise, it says, the effect would be that rules restricted to criminal cases would be extended to disciplinary proceedings contrary to Rule BV4. We do not agree with this narrow interpretation of Rule 413 a 5.

   [*587] We think that the words "in the former action" circumscribe "lawfully taken." Hence, the words mean precisely what they say: that the deposition must have been "lawfully taken in the former [criminal] action" if it is to be used in a subsequent case under Rule 413 a 5.  Otherwise stated, whether the deposition was "lawfully taken" is to be determined by the rules governing the "former action."

   That the[***17] deposition in question here was not "lawfully taken in the former [**730] [criminal] action" can hardly be open to question.  In this regard, State v. Collins, supra, is controlling.  We flatly held there "that the admission of the deposition violated [respondent's] constitutional rights," saying:
 
". . . Article 21 of the Maryland Declaration of Rights guarantees a defendant in a criminal prosecution the right 'to be confronted with the witnesses against him.' This fundamental safeguard is also secured by the Sixth Amendment of the Federal Constitution which was made applicable to the states through the Fourteenth Amendment.  . . ."

   Apart from being admitted in violation of respondent's constitutional rights, the deposition failed to comply with Rule 727 b which provides that if ". . . a deposition is to be taken at the instance of the State, the accused shall have the right to be present at the taking thereof . . ."; and Rule 775 which contains virtually the identical language.  It cannot be seriously contended that a deposition taken in such flagrant violation of procedural requirements, let alone so inviolable a right as the constitutional guarantee of confrontation, [***18] was "lawfully taken." We are not to be understood, however, as holding that the constitutional right of confrontation applies in disciplinary proceedings, having carefully refrained from reaching that question.

   (3)

   The contention that the panel should have disqualified itself stems from the belated disclosure that one of the three [*588] judges originally appointed had signed "several" orders in the early stages of the criminal case. Although he understandably had long-since forgotten his minimal participation in that case, and could not possibly have been influenced thereby, he withdrew from the panel and was replaced by another judge.  Notwithstanding the assurances of all three members of the original panel that there had been no discussion among them in any way related to the limited participation in the criminal case by one of them, respondent urges that the two remaining members also should have disqualified themselves.  We think this contention is patently frivolous and merits no further consideration.

   Since the deposition was improperly admitted in evidence, we shall remand this case for further proceedings not inconsistent with this opinion.  These proceedings may[***19] include such additional evidence as the parties shall choose to present.  Thereafter, the panel shall make its recommendation upon the evidence properly before it.

   It is so ordered. 

BAINUM v. KALEN et al. 
No. 135 (Adv.), September Term, 1974
 
Court of Appeals of Maryland
 
272 Md. 490; 325 A.2d 392; 1974 Md. LEXIS 788

 August  28, 1974  
 September  30, 1974, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Childs, J., pursuant to certiorari to the Court of Special Appeals.

CORE TERMS:  domicile, resident, election, license, driver's, voting, registered to vote, primary election, abandoned, candidate, pursuing, voted, reside, abandon, abode, qualifications, eligible, spent, predecessors, constitutional provision, change of domicile, registration, nomination, registered, lived, teaching, marriage, liked, tags, intention of returning

COUNSEL: James E. Carbine, with whom were Stanley J. Neuhauser and Weinberg & Green on the brief, for appellant.

   Ellen Luff for appellees Kalen and Rivers.  Submitted on brief by Francis B. Burch, Attorney General and George A. Nilson, Assistant Attorney General, for appellee State Administrative Board of Election Laws.

JUDGES: Murphy, C. J., and Smith, Digges and Eldridge, JJ., and Robert F. Sweeney, Chief Judge of the District Court of Maryland, specially assigned. Eldridge, J., delivered the opinion of the Court.

OPINIONBY: ELDRIDGE

OPINION: [*491] [**393] PER CURIAM ORDER

   For reasons to[***4] be stated in an opinion to be filed later, it is, this 28th day of August, 1974,

   ORDERED, by the Court of Appeals of Maryland, that the order of the Circuit Court for Anne Arundel County dated [*492] August 26, 1974, be, and it is hereby, affirmed with costs; and it is further

   ORDERED, that the mandate be issued forthwith.

    The appellant Stewart W. Bainum, Jr., filed a certificate of candidacy for the nomination of the Democratic Party for the office of State Senator representing the twentieth legislative district, located in Montgomery County. The appellees, residents of the twentieth legislative district, contending that Mr. Bainum did not meet the constitutional qualifications to be eligible for the office, brought this action in the Circuit Court for Anne Arundel County for a writ of mandamus and for declaratory relief.  The defendants were Stewart W. Bainum, Jr., the State Administrative Board of Election Laws, and the State Administrator of Election Laws.  Upon cross-motions for summary judgment, the circuit court (Childs, J.) issued an order dismissing the State Administrator of Election Laws from the case, declaring [**394] that Mr. Bainum was ineligible[***5] to be a candidate for the Democratic Party's nomination for the Maryland Senate and ordering that a writ of mandamus issue directing the State Administrative Board of Election Laws to remove Mr. Bainum from the ballot for the upcoming primary election. Mr. Bainum then took an appeal to the Court of Special Appeals.  Because of the importance of the matter, and the [*493] need for expedition, we granted a writ of certiorari prior to a decision by the Court of Special Appeals.  On August 28, 1974, two weeks before the primary election, we entered a per curiam order affirming the order of the Circuit Court for Anne Arundel County.  We now state our reasons for the affirmance.

   Article III, Section 9, of the Constitution of Maryland provides in pertinent part:

   "No person shall [be] eligible as a Senator or Delegate, who at the time of his election, is not a citizen of the State of Maryland, and who has not resided therein, for at least three years, next preceding the day of his election . . . ."
 
The question upon which Mr. Bainum's eligibility turns is whether he has, within the meaning of the constitutional provision, "resided" in Maryland for the three years preceding[***6] the 1974 election. Thus, to be eligible for the Maryland Senate, he must have "resided" in Maryland continually from November 1971.

   The basic facts concerning Mr. Bainum's residence were undisputed.  Stewart W. Bainum, Jr., was born in Montgomery County, Maryland and lived there with his parents until the fall of 1964, when he was 18 years old.  From the fall of 1964 to June 1968, Mr. Bainum attended Pacific Union College in California, except that he spent a portion of 1967 at Andrews University in Michigan.  He returned to his parents' home in the summers of 1965, 1966, 1967, and for two and one-half weeks in 1968.  He spent the remainder of the summer of 1968 in Europe. 

   From the fall of 1968 to June 1970, Mr. Bainum studied for a Master of Business Administration degree at the University of California at Los Angeles. He was married in Los Angeles to a California resident on July 7, 1969. Following the marriage, Stewart Bainum and his wife lived in a Montgomery County, Maryland, apartment for one and a half months.  They also spent two months in the summer of 1970 living at Mr. Bainum's parents' home.

   [*494] While attending graduate school in California, Stewart Bainum [***7]registered to vote and actually voted in the June 1970 California primary election. He obtained a California driver's license in 1969 or 1970. He bought a car which he registered in California, and he later bought another car which he registered in Oregon.  Mr. Bainum had a savings account in California before his marriage and a joint checking account in California after his marriage. At the same time, he maintained a checking account in Maryland.

   From August 1970 to May 1971, Stewart Bainum was employed as a teacher of Business Management at Southern Missionary College in Tennessee.  He filed no Maryland State Income Tax return covering the time of his employment in Tennessee.  He and his wife rented a furnished house while in Tennessee.  They had a joint checking account there, and Stewart Bainum also continued to keep his Maryland checking account.  In January 1971, Mr. Bainum informed the college president that he would not continue to teach after May 1971.  Concerning his stay in Tennessee, Mr. Bainum testified:

   "Q. Mr. Bainum, you said you went to Tennessee, and if I understand you correctly, that when you went to Tennessee, if you liked Tennessee you might have stayed[***8] there indefinitely?

   "A. No, I said it was a trial.  The trial was to find out if I liked the teaching [**395] profession.  It is conceivable that I would have liked teaching and teaching in that environment and stayed there the rest of my life, as was conceivable when I went to college as a student."

   From July 19, 1971, to August 14, 1972, Stewart Bainum and his wife lived in Oronoco County, Michigan, where Mr. Bainum took graduate courses at Andrews University and his wife taught in a high school.  They returned to Mr. Bainum's parents' home for several visits in 1971 and a visit in May 1972.  In March 1972, Stewart Bainum registered to vote in Michigan, and he voted in a Michigan primary election on May 16, 1972.  When registering to vote he signed [*495] a sworn statement that he had established a Michigan residence and reported only his California registration as a previous voter registration. Stewart Bainum obtained Michigan tags for his car in 1971, and a Michigan driver's license in 1972.  He reported a capital gain on the sale of some Maryland property on his 1971 Michigan State Income Tax return.  He paid no tax on this capital gain since he reported it as accruing[***9] during his Tennessee residence.  Mr. Bainum filed no Maryland Income Tax return for the same period.  His Federal Income Tax return for 1971 listed his Michigan address.

   With regard to his residence in Michigan, Stewart Bainum testified as follows:

   "A. Given the fact that I went to Michigan and during that period I was in kind of a trial period, I went there not knowing where I would go afterwards.

   "Q. So, when you went up there you didn't know if you would stay there, return to Maryland, or go to some other state, is that correct?

   "A. I didn't think about it to be frank.  There was no reason to think about it.  I'm not that insecure that I have my life mapped out five years ahead . . . ."

   In August 1972, Stewart Bainum and his wife returned to Maryland where they have resided until the present time.  Mr. Bainum continued to use Michigan tags on his car until the beginning of 1973 and to use a Michigan driver's license until early 1974.  In 1973, Mr. Bainum filed a Maryland Income Tax return for the year 1972, in which he stated that he had been a resident of Maryland only from "8/72 to present." On this return, $5,996.53 was subtracted from total income and reported as[***10] "income earned as non-resident."

   On these facts, Judge Childs concluded for the court below:
 
". . . whatever his original intentions may have been and whatever his present intentions now [*496] are, . . . at least, while he was in Michigan he gave up his Maryland residence, established a residence for political purposes in the State of Michigan and therefore has not complied with the residency requirements of the Maryland Constitution in order to qualify for the office he seeks."
 
Judge Childs chiefly relied upon the facts that Stewart Bainum registered to vote and voted in Michigan, treated Michigan as his domicile for tax purposes, and obtained a Michigan driver's license and Michigan tags for his automobile. We agree with Judge Childs that as of November 1971, and for a period of time thereafter, Mr. Bainum "resided" in Michigan rather than Maryland and thus did not meet the constitutional residency requirement to be a candidate for the Maryland Senate.

   Preliminarily, a question has been raised in this case concerning the meaning of the term "resided" in Article III, Section 9, of the Maryland Constitution. It is suggested that the word "reside" or its equivalent, [***11] as used in constitutional or statutory provisions setting forth qualifications for political office or voting, means actual physical presence or abode rather than domicile. Some language in the opinion [**396] in Shaeffer v. Gilbert, 73 Md. 66, 70-71, 20 A. 434 (1890), arguably supports the distinction.  However, to the extent that it does, the language from the Shaeffer case was specifically disapproved by this Court in Gallagher v. Bd. of Elections, 219 Md. 192, 206, 148 A. 2d 390 (1959).

   From Thomas v. Warner, 83 Md. 14, 20, 34 A. 830 (1896), and Howard v. Skinner , 87 Md. 556, 559, 40 A. 379 (1898), until the present, this Court has consistently held that the words "reside" or "resident" in a constitutional provision or statute delineating rights, duties, obligations, privileges, etc., would be construed to mean "domicile" unless a contrary intent be shown.  Thus, our predecessors stated in Howard v. Skinner, supra, 87 Md. at 559: "Residence, as contemplated by the framers of our Constitution, for political or voting purposes, means a place of fixed present domicile." Other cases holding that the words "reside" or [*497] "resident" should be[***12] construed as "domicile," are Harrison v. Harrison, 117 Md. 607, 612, 84 A. 57 (1912) (involving the word "resides" in a statute dealing with divorce); Wagner v. Scurlock, 166 Md. 284, 291, 170 A. 539 (1934) (a statute dealing with motor vehicle accidents involving nonresidents); Shenton v. Abbott, 178 Md. 526, 530, 15 A. 2d 906 (1940) (the word "residence" in a statute specifying where a will should be probated); Rasin v. Leaverton, 181 Md. 91, 93, 28 A. 2d 612 (1942) (the word "resided" in the constitutional provision setting forth the qualifications to be a candidate for State's Attorney); Gallagher v. Bd. of Elections, supra, 219 Md. at 205-207 (the word "resident" in the Baltimore City Charter provision delineating the qualifications of candidates for Mayor); Maddy v. Jones, 230 Md. 172, 179, 186 A. 2d 482 (1962) (the word "resident" in the Unsatisfied Claim and Judgment Fund Law).

    Consequently, whether Stewart Bainum "resided" in Maryland for the three-year period immediately preceding the 1974 election, depends upon whether Maryland was his place of "domicile" throughout that period.

   A person may have several places of abode or dwelling but "[h]e can [***13]have only one domicile at a time." Shenton v. Abbott, supra, 178 Md. at 530. A person's domicile has been defined as the place "with which he has a settled connection for legal purposes" and the "place where a man has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning." Shenton v. Abbott, supra, 178 Md. at 530. The controlling factor in determining a person's domicile is his intent. One's domicile, generally, is that place where he intends it to be.  Harrison v. Harrison, supra, 117 Md. at 614; Wagner v. Scurlock, supra, 166 Md. at 292; Gallagher v. Bd. of Elections, supra, 219 Md. at 198. However, the determination of intent is not dependent upon what one says at a particular time.  As this Court has stated, intent regarding domicile "may be more satisfactorily shown by what is done than by what is said." Wagner v. Scurlock, supra, 166 Md. at 292; Harrison v. Harrison, supra, 117 Md. at 614.

   [*498] There are certain well established principles applied in determining a person's intent regarding his[***14] domicile. Thus, once a place of domicile is determined or established, a person retains his domicile there unless the evidence affirmatively shows an abandonment of that domicile. This Court in Wagner v. Scurlock, supra, 166 Md. at 292-293, explained as follows:

   "When one takes up a new residence, in order to avail himself of the rights which such change of domicile confers, it must be not so much with the intention of there remaining, but of the abandonment of his former domicile as a [**397]place of residence, and 'excludes any definite intention to return to the place of the previous domicile.'"
 
And in Shenton v. Abbott, supra, 178 Md. at 530, it was stated:

   "It is a fundamental rule that, in order to effect a change of domicile, there must be an actual removal to another habitation, coupled with an intention of remaining there permanently or at least for an unlimited time."
 
See also Gallagher v. Bd. of Elections, supra, 219 Md. at 208.

   In deciding whether a person has abandoned a previously established domicile and acquired a new one, courts will examine and weigh the factors relating to each place.  While this Court has never deemed[***15] any single circumstance conclusive, it has nevertheless viewed certain factors as more important than others.  The Court has indicated that the two most important elements in determining domicile are where a person actually lives and where he votes.  In Harrison v. Harrison, supra, 117 Md. at 615, our predecessors stated: "The presumption of the law is that where a person actually lives is his domicile, though this is a rebuttable presumption." As to the place of voting, this Court has termed it the "highest evidence of domicile," Wagner v. Scurlock, supra, 166 Md. at 292.

   Where the evidence relating to voting and the evidence [*499] concerning where a person actually lives both clearly point to the same jurisdiction, it is likely that such place will be deemed to constitute the individual's domicile. Cf. Rasin v. Leaverton, supra, 181 Md. at 93-94. However, where these factors are not so clear, or where there are special circumstances explaining a particular place of abode or place of voting, this Court will look to and weigh a myriad of other factors in deciding a person's domicile. These include such things as: the paying of taxes and statements on tax returns; [***16]the ownership of property; where the person's children attend school; the address at which one receives mail; statements as to residency contained in contracts or other documents; statements on licenses or governmental documents; where furniture and other personal belongings are kept; which jurisdiction's banks are utilized; membership in professional, fraternal, religious or social organizations; where one's regular physicians and dentists are located; where one maintains charge accounts; and any other facts revealing contact with one or the other jurisdiction.  See Gallagher v. Bd. of Elections, supra, 219 Md. at 196-198.

   Applying these principles to the present case, it should first be noted that Stewart Bainum's domicile certainly was Maryland until 1969.  It is unnecessary for purposes of this case to decide whether, during the period from 1969 until July 1971, when he attended graduate school in California and then was employed as a teacher in Tennessee, he abandoned his Maryland domicile and became a domiciliary of California or later of Tennessee.  What is clear from the undisputed facts is that between July 1971 and August 1972, as Judge Childs held, Stewart Bainum abandoned[***17] his prior domicile and established a new domicile in Michigan.  His principal place of abode was in Michigan; he registered to vote in Michigan; in connection with his registration, he signed a statement that he had established a Michigan residence; and he voted in Michigan in the 1972 primary election. In addition, Mr. Bainum registered his automobile in Michigan, obtained a Michigan driver's license, considered Michigan his [*500]domicile for state income tax purposes, and listed Michigan as his residence on his federal income tax return.

   Both the surrounding circumstances as well as his testimony indicated that at the time he was in Michigan, he had no intention of returning to Maryland. [**398]And after he did return to Maryland in August 1972, he stated on his Maryland income tax return filed in 1973 that he had been a resident of Maryland only from August 1972, and he subtracted from his total income what he had earned in Michigan during the first part of 1972.  Of course, Mr. Bainum was entitled to subtract the income earned while he was in Michigan during the first part of 1972 only if his domicile were Michigan instead of Maryland.  See Maryland Code (1969[***18] Repl. Vol.), Art. 81, § 279(i).

   In light of the principles set forth in the Maryland cases previously discussed, it is difficult to imagine a stronger case of a change of domicile. Practically all of the most significant circumstances point to a Michigan domicile from July 1971 through August 1972.

   Mr. Bainum argues that the time he spent in Michigan during 1971 and 1972 was as a student, and that one's absence from Maryland during a period when he is pursuing studies elsewhere should be viewed as temporary and not sufficient to establish a change of domicile. Normally a student who pursues a course of study away from the place which had been his home, does not thereby abandon one domicile and establish a new one.  As our predecessors stated in Shaeffer v. Gilbert, supra, 73 Md. at 72:
 
"We agree that mere residence at the college for the purpose of pursuing his studies would not, in itself, be sufficient to prove that he meant to abandon his original residence, or to prove that he meant to make his actual home . . . [elsewhere].  In the absence of other proof, the law would presume, he was there for the purpose of prosecuting his studies, and this purpose being accomplished, [***19] he intended to return to his former residence."
 
See also New England Mutual Life Ins. Co. v. Lauffer, 215 F. Supp. 91, 97 [*501](S.D. Cal. 1963); Mallon v. Lutz, 217 F. Supp. 454, 456 (E.D. Mich. 1963); Frakes v. Farragut Community School District, 255 Iowa 88, 121 N.W.2d 636 (1963); Michaud v. Yeomans, 115 N.J.Super. 200, 278 A. 2d 537 (1971); Kegley v. Johnson, 207 Va. 54, 147 S.E.2d 735 (1966).

   However, Stewart Bainum did much more than temporarily live in Michigan while pursuing his studies there.  He registered to vote and voted in Michigan; he considered Michigan as his domicile for automobile registration and driver's license purposes; and he treated Michigan rather than Maryland as his domicile for income tax purposes.  While a student does not effect a change in domicile merely by living away from home while pursuing his studies, nevertheless a student may abandon his former domicile and establish a new domicile where he attends school.  When a student engages in conduct such as Stewart Bainum did here, he will be deemed to have abandoned one domicile and established another.

   As Stewart Bainum was not a domiciliary of Maryland for the three[***20] years preceding the 1974 election, he was not eligible to be a candidate for the Maryland Senate in that election. 

SCHIFANELLI, Personal Representative of the Estate of MarieE. Wallace et al. v. WALLACE 
No. 159, September Term, 1973
 
Court of Appeals of Maryland
 
271 Md. 177; 315 A.2d 513; 1974 Md. LEXIS 1032

 February  28, 1974, Decided

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

DISPOSITION: Decree affirmed; appellants to pay costs. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant, personal representative of a deceased wife's estate, sought review of the judgment of the Circuit Court for Anne Arundel County (Maryland), which declared that appellee husband, as the named beneficiary, was entitled to the proceeds of his wife's life insurance policy even though appellee inflicted the gunshot wound that killed his wife.

OVERVIEW:  Wife of appellee husband was killed by a gunshot wound inflicted by appellee. Appellant, personal representative of the deceased wife's estate, sought a declaratory judgment that the policy proceeds should be paid to the estate, rather than appellee, the named beneficiary. The chancellor declared that the proceeds should be paid to appellee. The court affirmed. The court noted that in the criminal proceeding the shooting had been ruled unintentional, even though appellee had been found guilty of gross negligence for handling a loaded gun when he had recently consumed alcohol. The court held that appellee was not barred from recovering the policy proceeds where the death of his wife was the result of gross negligence because that determination was accompanied by the express finding that the shooting was unintentional. The court also held that appellee's testimony about his feelings toward his wife and appellee's diagram of the bedroom where the shooting occurred were not barred by the Dead Man's Statute, Md. Code. Ann. art. 35, § 3. The court held that this evidence did not amount to a "transaction" with his wife as that term was used in the statute.

OUTCOME:  The court affirmed the declaratory judgment that appellee husband was entitled to the proceeds of his wife's life insurance policy as the named beneficiary, even though appellee inflicted the gunshot wound that killed his wife. The court noted that the shooting was ruled unintentional even though appellee was found guilty of gross negligence. The court also held that the Dead Man's Statute did not bar appellee's testimony about the events.

CORE TERMS:  beneficiary, chancellor, killing, gross negligence, decedent, marriage, gun, intentionally, hammer, unintentional, trigger, fatal, mutuality, recovering, shooting, jealous, bedroom, morning, feelings, shoot, happy, loved, concert of action, unintentionally, involuntary, narrowly construed, own knowledge, personal representative, incompetent to testify, criminal case

CORE CONCEPTS -  

Evidence: Witnesses: Dead Man's Acts
See Md. Code Ann. art. 35, § 3.

Evidence: Witnesses: Dead Man's Acts
The test for determining what is a "transaction" within the meaning of Dead Man's Statute, Md. Code. Ann. art. 35, § 3, is as follows: Whether, in case the witness testify falsely, the deceased, if living, could contradict it of his own knowledge.

Evidence: Witnesses: Dead Man's Acts
Mutuality or concert of action is necessary to constitute a "transaction" as that term is used in the Dead Man's Statute, Md. Code. Ann. art. 35, § 3.

Insurance Law: Life Insurance: Beneficiaries
While a beneficiary cannot recover where the death of the insured has been intentionally caused by his act, if it is the result of carelessness and is not intentional, the beneficiary's rights under the policy are not barred.

COUNSEL: Submitted on brief by Thomas M. Schifanelli for appellants.

   Warren B. Duckett, Jr., with whom were Turk, Manis & Duckett on the brief, for appellee.

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

* Barnes, J., participated in the hearing and in the conference of the case in regard to its decision and in the adoption of the opinion but had resigned from the Court prior to the filing of the opinion.

OPINIONBY: LEVINE

OPINION: [*178] [**514] This appeal arises out of a dispute over the proceeds of a life insurance policy issued upon the life of Marie E. Wallace (Marie), now deceased, in which appellee, Frank W. Wallace (Frank), her surviving husband, [***4] was the named beneficiary. Following Marie's death from a gunshot wound inflicted by Frank, a declaratory judgment suit was filed in equity by appellant, Thomas M. Schifanelli, personal representative of Marie's estate, and on behalf of her two minor children by prior marriages. In this suit, appellants sought a declaration requiring that the policy proceeds be paid to the estate, and not to Frank.  The chancellor (Sachse, J.) disagreed, and passed a declaratory decree in which he held that they were to be paid to the named beneficiary. We affirm.

   [*179] Rather extensive testimony was presented by an array of witnesses, consisting mainly of relatives, friends and acquaintances of the Wallaces, coupled with officers from the state police.  Interestingly enough, despite the bevy of witnesses and the wide range of their testimony, there are remarkably few discrepancies.

   On October 26, 1970, Marie and Frank were married and thereafter lived in Gambrills; she was then 36, and he was some ten years younger.  This was apparently her third marriage, her second marriage to Robert L. Faulkner (Faulkner) having been entered into on June 2, 1963.  That marriage was terminated on April[***5] 3, 1970, by a divorce on the ground of adultery in which John B. Bealefeld (Bealefeld) was named as Marie's paramour.  She and Bealefeld had been seeing each other since June 1969, and continued to do so with some regularity until she started dating Frank in December 1969.  She saw him with less frequency from that point, especially after she and Frank began living together in March 1970.  Although there was no evidence that Bealefeld saw or dated Marie after her marriage to Frank in October 1970, he did meet her for a drink on two or three occasions during the period of her courtship with Frank -- between December 1969 and the marriage.

   A number of the witnesses, including some produced by appellants, testified that they had never seen Frank exhibit a violent temper, even after he had been drinking.  The sole reference to any intemperate behavior on his part came from Bealefeld who stated: "One time [prior to the marriage], he said he'd shoot me if he ever caught me messing around with Marie Faulkner, at the time." (emphasis added).  Frank was otherwise described variously as a "gentleman" and "a very nice quiet natured person."

   Those witnesses who were acquainted with the[***6] relationship between Frank and Marie were united and uncontradicted in describing it as a happy one. They testified that although Marie had been romantically involved with Bealefeld during the latter stages of her marriage to Faulkner and for a brief period immediately [*180] following the divorce, once she began a serious romance with Frank, there was no question of her loyalty to him.  The witnesses described the Wallaces' relationship in the most glowing terms: "Marie did love Frank"; "I thought they were very happy"; "they acted like the ideal couple"; "they were quite close and loving"; "they seemed like two people in love"; and "they were a very happy couple."

   On the morning of March 4, 1971, the date of Marie's death, Frank finished [**515]working his shift at a nearby plant at 8:30 a.m. From there he went to the home of a friend and co-worker, Ronald J. Monroe (Monroe), to see another friend off to South Carolina.  After that friend departed, Frank and Monroe went to a neighborhood bar where over the span of some two hours or more, Frank consumed three or four bottles of beer and ate a cheeseburger and some chili. His conduct seemed quite normal and sober during[***7] the entire period, and was the same when they departed about 12:30 p.m. Before leaving, Monroe purchased a "six-pack" from which he gave Frank one can to take home.

   It had snowed that morning -- to a depth of approximately one inch -- but Monroe described Frank who was driving as "very capable of handling himself." He drove to Monroe's home -- a distance of some two miles -- dropped him off, and headed for his own home.  By this time, snow flurries had resumed, but during the remainder of the trip, he experienced no difficulty driving because of the beer or the weather conditions.

   When Frank arrived home, he found Marie ironing clothes.  He stated he was in a good frame of mind -- that being Thursday morning -- because he was not scheduled to work until Monday morning. Shortly after he opened the can of beer which had been given to him by Monroe -- and while he was talking to Marie -- he received a phone call from an officer of a local bank, who advised him that their joint application for a loan to purchase a new home had been approved. Especially happy at hearing this news, Frank and Marie resumed their conversation.

   Ultimately, Marie, who was to report for work at 4:00 p.m., [***8] went to the bedroom to dress.  While she remained [*181] seated on the bed, Frank rose and pulled from a holster hanging on the dresser his handgun for the purpose of describing its operation to Marie.  It was a fully loaded .44 caliber magnum revolver, described by one expert witness as "the most powerful of all hand guns." He returned with it to the bed and began showing it to her.  He testified that by describing its operation, he meant that he was showing Marie "[h]ow to cock the gun . . . how to return it to the safety, things of that nature."

   Testimony by a firearms expert from the state police established that Frank's gun, being a single-action revolver, is not fired by merely pulling the trigger. It is also necessary to bring the hammer back manually; then the trigger must be pulled to release the hammer. To place the hammer in a safety position, it is necessary to remove the finger from the trigger after it is released from the "sear," but before the hammer falls into the safety notch; if the hammer is allowed to fall before the finger is removed from the trigger, the gun discharges.  The same expert stated that Frank's gun was in normal operating condition and therefore[***9] would also fire under those conditions; in fact, that is precisely what occurred while he was exhibiting the gun to Marie. "[His] thumb slipped off the hammer [before he removed his finger from the trigger] and the gun went off." As a consequence, the shell entered Marie's abdomen and she screamed.  Frank then "threw the gun down," telephoned for an ambulance, and also called Marie's sister.

   A thorough investigation conducted by the state police immediately after the incident was reported to them, revealed no evidence of a physical struggle.  The police investigation also included the performance of a "breathalyzer" test on Frank.  Strangely enough, although records pertaining to that test were produced -- including the result of .15 -- no effort was made to interpret or explain this evidence.  Frank denied intentionally shooting his wife, and also denied that he was angry at her or jealous of anyone else.  In addition to testifying that he loved Marie very much, he also was permitted to draw a diagram of the bedroom. Virtually his entire testimony regarding the [*182] events of that day -- including his feelings toward Marie -- was [**516] admitted over appellants' [***10] vigorous objections.

   Following Marie's death, Frank was promptly indicted for manslaughter. n1 The criminal case came on for trial before Judge James L. Wray, sitting without a jury, in the Circuit Court for Anne Arundel County.  He found Frank guilty of manslaughter, but following a pre-sentence investigation, struck the verdict of guilty and placed Frank on probation without verdict. n2

n1 According to the docket entries -- the only documentation of the criminal case to be found in the record of this case -- he was indicted "for feloniously killing Marie Ellen Wallace on or about the 4th day of March 1971."

n2 The effect of this action, under Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 641, was to completely eradicate the verdict of guilty.  Bartlett v. State, 15 Md. App. 234, 289 A. 2d 843 (1972), aff'd mem., 267 Md. 530, 298 A. 2d 16 (1973).

   At the conclusion of the trial of this case, the chancellor held the matter sub curia, and then filed a thoroughly considered opinion followed by a decree [***11]in which he declared that Frank ". . . is entitled to the proceeds of the policy insuring the life of Marie . . . ." After a detailed review of the evidence, Judge Sachse found that the shooting was unintentional. Nevertheless, because of the alcoholic consumption factor and Frank's handling of the lethal and fully loaded gun under the circumstances described in the evidence, he also found him guilty of gross negligence. Since the killing was not intentional, however, the chancellor held that Frank, as the named beneficiary, was not precluded from collecting the policy proceeds.

   Two questions are presented for our consideration by this appeal:

   (1) Whether, in light of Code (1957, 1971 Repl. Vol.) Art. 35, § 3, the "Dead Man's Statute," the testimony by the surviving husband of what transpired before the shooting, including his statements of how he felt toward his wife, how the gun was fired, his denials that he intentionally shot her, and the diagram of the bedroom, was properly admissible.

   (2) Whether the chancellor erred in ruling that because [*183] the killing was unintentional, the named beneficiary was entitled to recover the policy proceeds even though her death was[***12] the product of gross negligence.

   (1)

   The question of the admissibility of Frank's testimony is governed by the "Dead Man's Statute," Section 3 of Art. 35, which provides in relevant part:

   "In actions or proceedings by or against executors, administrators, heirs, devisees, legatees or distributees of a decedent as such, in which judgments or decrees may be rendered for or against them, and in proceedings by or against persons incompetent to testify by reason of mental disability, no party to the cause shall be allowed to testify as to any transaction had with, or statement made by the testator, intestate ancestor or party so incompetent to testify, either personally or through an agent since dead, lunatic or insane, unless called to testify by the opposite party, or unless the testimony of such testator, intestate, ancestor or party incompetent to testify shall have already given in evidence, concerning the same transaction or statement, in the same cause, on his or her own behalf or on behalf of his or her representative in interest; . . . ." (emphasis added).

   The first category of which appellants complain consists of Frank's subjective feelings: that he was not jealous[***13] of anyone, that he loved Marie very much, and that he did not intentionally shoot her.  Although we have found no case remotely presenting such an issue, nor have the parties [**517]brought any to our attention, we have little hesitation in expressing our agreement with the chancellor that Frank's testimony concerning these emotions is not evidence of a "transaction" within the meaning of the statute.

   In Estate of Soothcage v. King, 227 Md. 142, 176 A. 2d 221 (1961), quoting from the earlier case of Griffth v. Benzinger, 144 Md. 575, 596, 125 A. 512 (1924), Chief Judge Brune said for the Court:
 
[*184] "'. . . The statute was intended to prevent one party to a transaction from testifying to the acts and declarations of a decedent whose acts are under consideration in a proceeding to which the witness is a party, to enforce obligations arising from such transactions.'" 227 Md. at 150 (emphasis in Estate of Soothcage v. King).

   We have held that the statute is to be narrowly construed, Snyder v. Crabbs, 263 Md. 28, 30, 282 A. 2d 6 (1971); Stacy v. Burke, 259 Md. 390, 404, 269 A. 2d 837 (1970); Guernsey v. Loyola Federal Ass'n, 226 Md. [***14] 77, 80, 172 A. 2d 506 (1961); Shaneybrook v. Blizzard, 209 Md. 304, 309, 121 A. 2d 218 (1956). Furthermore, the statute is to be read in the light of § 1 of Art. 35, which removed the disqualification of witnesses who have an interest in the litigation, subject to certain exceptions including those in § 3, Snyder v. Crabbs; Estate of Soothcage v. King; Shaneybrook v. Blizzard, all supra.

   In Ridgley, Exec. v. Beatty, 222 Md. 76, 83, 159 A. 2d 651 (1960), citing Hollister v. Fiedler, 17 N. J. 239, 111 A. 2d 57, 62 (1955), Judge Horney, for the Court, enunciated the test for determining what is a "transaction" within the meaning of the statute as: "'Whether, in case the witness testify falsely, the deceased, if living, could contradict it of his own knowledge.'" (emphasis added).

   Viewed in light of these authorities, the testimony of Frank that he was not jealous of anyone else, that he loved his wife, and that he did not shoot her intentionally simply does not mount up to evidence of a "transaction had with" her.  In short, his testimony in this regard did not relate acts and declarations of the decedent that would establish a transaction creating obligations[***15] between them.  Nor does this testimony meet the above-quoted test for determining whether it refers to a "transaction," since the decedent, even "if living, could [not] contradict" her husband's testimony describing his emotional feelings "of [her] own knowledge." We hold that this testimony was not barred by the Dead Man's Statute and was therefore properly admitted.
 
   The other evidence attacked by appellants under this [*185] statute included a diagram of the bedroom drawn by Frank and his testimony of the circumstances surrounding the fatal event.  It should be noted that the chancellor was very careful to exclude any testimony of what was said by Marie. It is also of some relevance to note that the room and its contents were not only described by the investigating police in their testimony, but were depicted by photographs taken by them immediately upon arriving at the scene.  Those were offered as exhibits by appellants and were admitted into evidence.  Thus, any testimony by Frank that described the room and its contents was merely cumulative.

   Support for the contention that this testimony was admissible is found in Shaneybrook v. Blizzard, supra, which involved[***16] a collision between two cars.  One of the operators had died before the trial, and the occupants of the other car were permitted to testify concerning the facts and circumstances of the accident, including the movements and positions of both cars.  The Court there thoroughly reviewed the decisions of other courts, noting a division of authority regarding the application of "Dead Man's Statutes" in tort cases. Among the cases cited were Seligman v. Orth, 205 Wis. 199, 236 N. W. 115 (1931), Krantz v. Krantz, 211 Wis. 249, 248 N. W. 155 (1933), and M'Carthy v. Woolston, 210 App. Div. 152, [**518] 205 N. Y. S. 507 (1924). Speaking for this Court, Judge Henderson then said:

   "We think the Wisconsin and New York cases express the better view.  Our statute is clearly a remedial one, and the exception to it should be narrowly construed. It may well be that the word 'transaction,' standing alone, would not be limited to contractual relationships, and the reference to 'statements' might properly bar any testimony as to admissions made by or conversations with a decedent following an automobile accident.  It is difficult to see how the testimony of the plaintiffs in the instant[***17] case as to the movements of their car before the other car came in sight could be ruled out on any theory.  But we think the exception should not be construed to include a narration of [*186] the observed course and speed of the other automobile, or testimony as to the place where the collision occurred.  The Maryland statute couples the words 'transaction had with' and the words 'or statements made by,' and both are followed by the words 'personally or through an agent since dead * * *.' The relationship between the respective drivers was fortuitous and involuntary, and the word 'transaction' imports a mutuality or concert of action. . . ." 209 Md. at 311-12.

   For their position that the admitted testimony constituted a "transaction," appellants rely almost exclusively on Maciejczak v. Bartell, 60 P. 2d 31 (Wash. 1936), where the court excluded testimony of the events surrounding a fatal assault.  The question posited there was whether the Dead Man's Statute applied to actions "arising ex delicto or only to actions arising ex contractu." The court held: ". . . The authorities are in conflict, but we are of the opinion that in the greater number of jurisdictions the word[***18] 'transaction' has been held to include torts." 60 P. 2d at 35.

   As we noted in Shaneybrook, supra, although virtually all the Maryland cases dealing with the statute have involved contracts, rather than torts, we never have flatly drawn a distinction on that basis in deciding the application of the statute.  Nor do we find it necessary to deal in such broad terms here. Suffice it to say, that Maciejczak v. Bartell, supra, in light of our holding in Shaneybrook, does not support the argument of appellants; and we decline to follow it.

   Cases cited in Shaneybrook indicate that Maryland is not alone in admitting testimony of events surrounding automobile accidents.  Other courts have subsequently followed this lead.  Day v. Stickle, 113 So. 2d 559, 80 A.L.R.2d 1291 (Dist. Ct. App. Fla. 1959), cert. denied, 115 So. 2d 414 (Fla. 1959) (observation by survivor of position and course of automobile driven by decedent); Simmons v. Larry, 109 Ga. App. 424, 136 S.E.2d 502 (1964), Knoepfle v. Suko, 108 N.W.2d 456 (N. D. 1961) aff'd on other grounds, 114 N.W.2d 54 (N. D. 1962) (independent observations of speed and position of automobiles).

   [*187] Similar[***19] observations also have been allowed in a dental malpractice case, Germann v. Matriss, 55 N. J. 193, 260 A. 2d 825 (1970). There the court aptly stated:
 
". . . In a system of justice which has established as a general rule that all persons should be qualified to testify, and that disqualification should be the exception, there is no sound reason why the survivor in a negligence death case should be barred by the statute from testifying as to what he saw and did and what he saw the decedent do or fail to do, which independent actions or conduct coalesced without any mutuality of purpose to produce the accident or injury.  . . ." 260 A. 2d at 838.
 
The New Jersey case echoes the principle suggested in Shaneybrook, supra, that mutuality or concert of action is necessary to constitute a "transaction." Since Shaneybrook, [**519] the same proposition has been followed in these automobile cases: Knoepfle v. Suko, supra, at 462, Hicks v. Battey, 259 S. C. 426, 192 S.E.2d 477, 479 (1972), and Harper v. Johnson, 162 Tex. 117, 345 S.W.2d 277, 280 (1961). See the cases collected at Annot.  80 A.L.R.2d 1296 (1961).

   Applying the Shaneybrook test, we[***20] conclude that the uncontradicted evidence presented here also establishes the events transpiring between Frank and Marie immediately prior to her death as "fortuitous and involuntary" and lacking in "a mutuality or concert of action." Thus, what occurred was not a "transaction," as that term is used in the statute, and the testimony by Frank was properly admitted.

   (2)

   We pass then to the other question posed by appellants: Whether the named beneficiary under a life insurance policy is precluded from collecting the proceeds by reason of the fact that he unintentionally killed his wife -- upon whose life it had been issued -- but as the result of gross negligence. Virtually the same question was urged upon us, but was not reached in Chase v. Jenifer, 219 Md. 564, 150 A. [*188] 2d 251 (1959), since there the killing was held to be intentional.

   There, we held that "[w]here the killing is both felonious and intentional, . . . the beneficiary cannot prevail.  . . ." 219 Md. at 570. In that case, a criminal court judge had found the beneficiary guilty of manslaughter without designating, of course, whether it was voluntary or involuntary, but the chancellor specifically found[***21] that the killing was intentional.  We noted that even if the judge in the criminal case had acquitted her, "the holding would probably have not been conclusive on the chancellor." 219 Md. at 569.

   Although this question remains undecided in Maryland, the overwhelming weight of authority allows recovery where the beneficiary causes the death of the insured unintentionally or not feloniously.  Tippens v. Metropolitan Life Ins. Co., 99 F. 2d 671 (5th Cir. 1938); Throop v. Western Indemnity Co., 49 Cal. App. 322, 193 P. 263 (1920); Schreiner v. High Court of Illinois Catholic Order of Foresters, 35 Ill. App. 576 (1890); Stacker v. Mack, 126 Ind. App. 95, 130 N.E.2d 484 (1955); Beene v. Gibraltar Industrial Life Ins. Co., 116 Ind. App. 290, 63 N.E.2d 299 (1945); Commercial Travelers Mutual Acc. Ass'n v. Witte, 406 S.W.2d 145, 27 A.L.R.3d 784 (Ky. 1966); Jackson v. Prudential Insurance Co. of America, 106 N. J. Super. 61, 254 A. 2d 141 (1969); see the cases collected in Annot.  27 A.L.R.3d 794 § 6 (1969).

   The rule which prevents a beneficiary who has intentionally killed the insured from recovering on an insurance policy is grounded on the public policy against[***22] permitting a wilful and felonious killer to profit by his felony.  Thus, it has no application where even though the acts of the beneficiary cause death, they are without the intent to do so, Tippens v. Metropolitan Life Ins. Co., supra; where the death is the result of accident, or even when caused by such gross negligence on the part of the beneficiary that he is guilty of involuntary manslaughter, the beneficiary may still recover, Commercial Travelers Mutual Acc. Ass'n v. Witte, supra; the basic rule is that while a beneficiary cannot recover where the death of the [*189] insured has been intentionally caused by his act, if it is the result of carelessness and is not intentional, the beneficiary's rights under the policy are not barred, Commercial Travelers Mutual Acc. Ass'n v. Witte, and Jackson v. Prudential Insurance Co. of America, both supra.

   In challenging this overwhelming weight of authority, and in thus contending for a rule that would disqualify the beneficiary from recovering the policy proceeds even though the killing was unintentional, but the result of gross negligence, appellants rely exclusively upon two English cases, Hall v. Knight [***23] and Baxter, Law. Rep. Prob. Div. [**520] 1 (1914) and Cleaver v. Mutual Reserve Fund Life Association, 1 Q.B. 147 (1892). But, as we noted in Chase v. Jenifer, supra, where those two cases are cited, the courts in this country do not follow what appears to be the rule of the English cases.

   We hold, therefore, that appellee was not barred from recovering the policy proceeds merely because the death of his wife was the result of gross negligence where that determination was accompanied by an express finding that the death was caused unintentionally.

   Decree affirmed; appellants to pay costs. 

MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS et al. v. ANNEARUNDEL COUNTY, MARYLAND et al. 
No. 184, September Term, 1973
 
Court of Appeals of Maryland
 
271 Md. 265; 316 A.2d 807; 1974 Md. LEXIS 1037

 January  30, 1974, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed February 28, 1974; After Hearing, Opinion Confirmed Without Change March 18, 1974.

PRIOR HISTORY:  
Five appeals in one record from the Circuit Court for  Anne Arundel  County; Weant and Wray, JJ. pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Decree of September 5, 1973, reversed and the case remanded to the Circuit Court for Anne Arundel County for the entry of a decree declaring that the appellee, Anne Arundel County, is subject to the application of the Historic District Ordinance, sections 22-226 through 22-236, inclusive, of the code of the City of Annapolis and making permanent the injunction issued on September 6, 1973, enjoining the appellee, Anne Arundel County, from proceeding with the demolition of the building known as Mt. Moriah African Methodist Episcopal Church of Annapolis; the costs to be paid by the appellee, Anne Arundel County.

CORE TERMS:  historic, zoning, architectural, church, municipal, demolition, exterior, historic district, courthouse, preservation, alteration, reconstruction, chancellor, ordinance, building inspector, retention, site, process of law, forty-five, repair, public hearing, space, deems, regulations, capricious, effective, continuance, permission, easement, demolish

COUNSEL: Eugene M. Lerner, City Attorney, with whom was Richard G. Anderson, Assistant City Attorney, on the brief, for appellants[***5] Mayor and Aldermen of the City of Annapolis and the Historic District Commission of the City of Annapolis.  John C. Murphy, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Henry R. Lord, Deputy Attorney General, on the brief, for appellant State of Maryland, acting on behalf of the Maryland Historical Trust and Commission on Negro History and Culture.

   John M. Court, Assistant County Solicitor, with whom was Paul F. Borden, County Solicitor, on the brief, for appellees.
 
JUDGES: Murphy, C. J., and Barnes, Singley, Smith, Digges and Levine, JJ. Barnes, J., delivered the opinion of the Court.

OPINIONBY: BARNES

OPINION: [*267] [**808] The principal questions presented to us for resolution in this appeal arise out of the construction and application of the provisions of Maryland Code (1957, 1970 Repl. Vol.) Article 66B, §§ 8.01 through 8.15, under the subtitle "Historic Area Zoning" and Chapter 22, Article XI, "Historic District," Sections 22-226 through 22-236 of the Annapolis City Code, implementing in substantially the same basic language that which is contained in Art. 66B, §§ 8.01 through 8.15, insofar as these provisions relate[***6] to the Mt. Moriah African Methodist Episcopal Church (Mt. Moriah), located on Franklin Street in the City of Annapolis and owned by Anne Arundel County. n1

n1 The church in question bears the distinguished name "Moriah" which in Hebrew means "provided by Jehovah." The hill of Jerusalem on which Solomon built the Temple was called "Mount Moriah," 2 Chr. 3.1, and was the hill on which Abraham was prepared to offer Isaac, Gen. 22.2.

   Mt. Moriah was built in 1874 at its present location at 82-84 Franklin Street to the rear of the Courthouse in [*268] Annapolis.  The congregation, however, was organized in 1799 and consisted of free blacks rather than those held in slavery.  The cornerstone of the present church building is dated 1816 and was the cornerstone of an earlier church structure built by the Mt. Moriah congregation.  As will be more fully developed later in this opinion, Mt. Moriah is a significant symbol of black society and of the accomplishments of free black persons surrounded, as it were, by conditions[***7] of chattel slavery and racial discrimination.

   Historic Annapolis, Inc., a private organization, conducted a survey in 1970 of historic structures in the City of Annapolis [**809] under the direction of duly-qualified specialists.  Their material was submitted to a "jury" of qualified architects and architectural historians and Mt. Moriah was given the highest rating of "outstanding." n2 As a result of a nomination made by the State of Maryland, through the Governor's Advisory Commission on Historic Preservation, Mt. Moriah was identified and placed on the National Register of Historic Places.  The description in the nomination -- accepted by the National Register of Historic Places, an agency of the Federal Government -- stated, in part:

   "Mt. Moriah Church is an exceptional example of small scale Victorian Gothic Ecclesiastical architecture, and is an important contribution to the architectural collection of Annapolis.  . . . Mt. [*269] Moriah is one of Annapolis' hidden architectural treasures, is of paramount importance in black history, and should be preserved at all costs."

 n2 The "jury" consisted of:
 
(1) Carl Fais, a Fellow of the American Institute of Architects and a founding member of the American Institute of Planners.  He has the degree of Bachelor of Architecture from the University of Pennsylvania and the degree of Master of City Planning from the Massachusetts Institute of Technology.  He is a former Trustee of the National Trust for Historic Preservation.
(2) Oren M. Bullock, Jr., also a Fellow of the American Institute of Architects, who was active in the early years of the restoration of Williamsburg, Virginia, and who is in active practice.
(3) Dr. William B. Murtaugh, Keeper of the National Register of Historic Places, Department of the Interior of the United States Government.

[***8]

   Although the exterior of the church building is in need of "some masonry (namely pointing) and window frame and cornice repair," the building generally appeared to be in good condition.

   After negotiations with the Trustees of Mt. Moriah, it was purchased by the appellee, Anne Arundel County (the County), by a deed dated May 28, 1970, and duly recorded among the land records of Anne Arundel County.  At that time, Mt. Moriah was not included within the boundaries of the Historic District of the City of Annapolis, but was included in that District shortly after its purchase by the County.

   One of the appellants, the Mayor and Aldermen of the City of Annapolis, established the Historic District Commission of the City of Annapolis (the Commission), pursuant to Art. 66B, § 8.03, as well as the Historic District within the City of Annapolis in accordance with the "Historic Area Zoning" enabling act, Art. 66B, §§ 8.01 through 8.15. Article XI, "Historic District," Sections 22-226 through 22-236 of the Code of the City of Annapolis, was submitted to a referendum of the voters in the City of Annapolis at the general election of 1969 and was ratified by the electorate.

   On September 27, 1972, [***9] the Mayor and Aldermen of the City of Annapolis filed a suit in equity (Equity No. 21050) in the Circuit Court for Anne Arundel County, seeking to enjoin the County from awarding a contract for the demolition of Mt. Moriah and from demolishing it and also seeking a declaratory decree that the County must comply with the Historic District Ordinance of the City of Annapolis, Art. 66B of the Maryland Code, and the Building Code of the City of Annapolis.  On June 7, 1973, the County did apply for a permit with the Building Inspector's Office of the City to demolish Mt. Moriah.  No further proceedings have been taken in that suit.

   [*270] The demolition permit filed by the County was sent by the Building Inspector to the Commission in accordance with the provisions of the Historic District Ordinance and the established practice.  The Commission thereafter gave the usual notice of the filing of the application by the publication of its standard advertisement for a public hearing on the application.  [**810] The County appeared at the public hearing on June 20, 1973, and was represented at that hearing by Robert Strott, Director of Administration for the County.

   At the June 20 hearing, [***10] substantial testimony was taken and documentary evidence was submitted by a number of individuals and organizations in opposition, including two of the appellants, the Maryland Historical Trust and the Maryland Commission on Negro History and Culture.  This testimony and supporting documents detailed the historical and architectural merits of Mt. Moriah and its particular relevance to the black community.  There was also evidence submitted indicating alternative methods for the construction of the proposed parking facility without demolishing Mt. Moriah.  The County, however, offered no evidence concerning the historical or architectural merit of Mt. Moriah or its relevance to the black community.  Mr. Strott testified in regard to the proposed use of the site on which Mt. Moriah is located for a parking structure and possible expansion of the courthouse and related facilities now in the courthouse. Since the County's testimony clearly indicated that it had developed only preliminary plans, it was impossible to state whether the site occupied by Mt. Moriah would be used for parking facilities, an addition to the courthouse, or a combination of both.  It was stated that if the Commission [***11]were to grant the demolition application, the County would use the site in question for a temporary parking area until such time as the County could devise final plans for the utilization of the space. Mr. Strott testified that Mt. Moriah was, in his opinion, an obstacle to the construction of the courthouse complex; that it would be expensive to move Mt. Moriah; and, that Mt. Moriah was not an appropriate structure for use in the courthouse complex.

   [*271] During the June 20 hearing, Mr. Strott frequently referred to an "Avtech Report," which, he said, discussed the needs of the County for expanded courthouse facilities.  At that time, Mrs. John Symonds, the chairwoman of the Commission, asked Mr. Strott if he would make the Avtech Report available to the Commission, whereupon counsel for the various parties indicated that if that report were introduced into evidence -- Mr. Strott not having the report with him at the hearing -- they desired an opportunity to cross-examine Mr. Strott on the contents of the report.

   Mrs. Symonds testified that, during a break in the hearing, she asked Mr. Strott if he would extend the hearing to a later date for the purpose of discussing and[***12] reviewing the contents of the full Avtech Report and Mr. Strott agreed to this.  At the conclusion of the June 20 hearing, a motion was made and passed to continue the hearing to a later date.  Mr. Strott, after the conclusion of the June 20 hearing, did furnish the Commission with a full copy of the Avtech Report.  Mrs. Symonds, prior to advertising the resumed hearing date, telephoned Mr. Strott and they arrived at a mutually agreeable date for the resumption of the June 20 hearing, namely, July 25, 1973.

   At the resumed hearing on July 25, Mr. Strott again represented the County, together with Randolph Rozencrantz, Central Services Officer for the County, both of whom testified on behalf of the County.  The County again asked for permission to demolish Mt. Moriah.

   The Commission, on August 7, 1973, issued its unanimous, written decision denying the County's application to demolish Mt. Moriah, as follows:

    "Pursuant to a public hearing held before the Historic District Commission of the City of Annapolis on June 20, 1973, on the application of Anne Arundel County, Maryland, for a permit to demolish Mt. Moriah Church at 82-84 Franklin Street, Annapolis, said public hearing being[***13] continued at a further public hearing on July 25, 1973, by the agreement of the applicant and the Commission, and after reviewing all of the [**811] exhibits, [*272] testimony, and evidence on file in the case, the Commission finds as follows:
 
"(1) the Commission finds and deems the structure, Mt. Moriah Church to be valuable according to studies performed for the Historic District of Annapolis and for this particular building and to have significant historical and architectural value in and of itself and in relation to the surrounding area.
"(2) the Commission further finds that the demolition of the structure would be a great loss, to the City of Annapolis, to the State of Maryland and the United States of America, and therefore, must be guided by the provisions of § 22-231 (f) (1) of the Historic District Ordinance.
"(3) the Commission further finds that while the record in this case discloses several alternative plans or proposals which were suggested as feasible alternatives to the demolition of Mt. Moriah Church, the applicant, Anne Arundel County, did not indicate or show any serious consideration for any suggested alternative plans or proposals to preserve[***14] the structure.
"(4) the Commission further finds that the structure sought to be demolished, Mt. Moriah Church, is valuable for the period of architecture it represents and is important to the neighborhood within which it exists, and that there was insufficient evidence to support a finding that retention of the Church would be a deterrent to any major improvement program of the applicant, which would be a substantial benefit to the City of Annapolis; and that there was insufficient evidence to support a finding that retention of the Church would cause undue financial hardship to the applicant, but, on the contrary, there was sufficient testimony and other evidence to [*273] support a finding that retention of the Church would be in the best interest of the majority of the community in which it is located.

   "THEREFORE, the application of Anne Arundel County for the demolition of the Mt. Moriah Church at 82 and 84 Franklin Street, be and the same is hereby denied."
 
On the same day, Mr. Strott sent a letter by certified mail to Mrs. Symonds, stating that it was the County's position that, inasmuch as the Commission had taken no action on the County's application within[***15] the 45-day period set forth in Art. 66B, § 8.12 of the Maryland Code and in Section 22-233 of the Historic District Ordinance, approval of the application had "been rendered by operation of law" and that the County was "proceeding with its plans accordingly."

   The City of Annapolis and the Commission on August 15, 1973, filed a bill of complaint in the present case (Equity No. 21582), seeking a temporary and permanent injunction restraining the County and Joseph W. Alton, Jr., the County Executive, from demolishing or damaging Mt. Moriah, unless and until approval had been granted by the Commission; an order that the County Executive notify any contractors, agents, servants, or employees accordingly, and other relief. The Circuit Court for Anne Arundel County (Childs, J.) granted a temporary restraining order on August 15, 1973, and the City posted the required $75,000.00 bond on August 17.
 
   On August 17, 1973, the State of Maryland, acting on behalf of the Maryland Historical Trust and the Maryland Commission on Negro History and Culture, petitioned for leave to intervene as a party plaintiff and such permission was granted the same day.

   In its answer, the County alleged that[***16] it was not subject to the jurisdiction of the [**812] Commission and that, even if it were, the application for demolition of Mt. Moriah had not been acted upon by the Commission within the period of time required by the Historic District Ordinance and the application was thus automatically approved.  The County [*274] filed a cross bill of complaint, alleging that it had an investment of $175,000.00 in the Mt. Moriah site for the purposes of expanding the courthouse facilities and that the continued interference with this objective constituted continuing damages in the amount of 1% per month as long as such interference continues.  It prayed for a monetary award of $1,750.00 a month for each month the County was delayed in beginning construction, beginning with June 7, 1973, and for other relief.  The plaintiffs duly filed an answer to the County's cross-bill on August 20, 1973, denying its allegations, and alleging that the County had no plans and that the damages were speculative.

   A hearing on the merits was heard by the Circuit Court for Anne Arundel County (Weant, J., specially designated) on August 20, 1973.  After taking testimony, receiving various documents into[***17] evidence, and hearing the arguments of counsel for the respective parties, he rendered his written opinion and filed an order on September 5, 1973, ruling in favor of the County, dissolving the temporary injunction, granting leave to the County to pursue the damages alleged in its cross bill, if it had any, and requiring the plaintiffs to pay the costs.

   In his opinion, Judge Weant concluded that although the City was correct in regard to the 45-day issue, the County was not subject to the jurisdiction of the Commission.

   The City of Annapolis filed a petition for a stay of the decree of September 5, 1973; and this stay was granted on September 7.  After an additional hearing in the circuit court, the City and County entered into a stipulation that no supersedeas bond would be required to stay the operation of the decree of September 5.

   Timely appeals from the decree of September 5 to the Court of Special Appeals were filed by the City of Annapolis, the Commission, the State of Maryland, and the Maryland Commission on Negro History and Culture; and a timely cross-appeal was filed by the County from that portion of the decree ruling against the County on the 45-day issue.

   On September[***18] 13, 1973, the County filed a petition for a writ of certiorari with this Court, pursuant to Maryland [*275] Rule 811, to transmit the record in the case from the Court of Special Appeals to this Court because of the public importance of the case and the need for an early final decision.  The City, the Commission, and the State also urged that we grant the County's petition, which we did on September 21, 1973.

   The three principal questions presented to us by the appeal and cross-appeal are:

   (1) Was the decision of the lower court in regard to the 45-day provision correct?

   (2) Was the County subject to the jurisdiction of the Commission?

   (3) Was the Commission's decision arbitrary or capricious as a denial of due process of law or as a taking of the County's property without paying just compensation?

   We have concluded that the lower court ruled correctly in regard to the first question, but was in error in holding that the County was not subject to the jurisdiction of the Commission.  We are also of the opinion that the Commission's decision was not arbitrary or capricious, but, on the contrary, was properly reached on the record before it.

   1.

   In our opinion, the chancellor[***19] properly found from the facts that time for Commission action was extended by mutual [**813] agreement between the Commission and the County as contemplated by Article XI, § 22-233(d) of the Code of the City of Annapolis.  The chancellor made a careful review of the facts in regard to this point and we adopt his findings and conclusions on this point as follows:

   "Article XI, § 22-233(d) of the Code of the City of Annapolis states:

   '(d) Failure of the Commission to act within forty-five days from the date an application is filed shall constitute approval unless an [*276] extension is agreed upon mutually by the applicant and the Commission.'
 
"Article 66B, § 8.12 of the Annotated Code of Maryland states in part:

   '. . . The failure of the Commission to act upon an application within forty-five (45) days from the date the application was filed shall be deemed to constitute automatic approval of the proposed changes unless an extension of this forty-five day period is agreed upon mutually by the applicant and the Commission or the application has been withdrawn.'

   "The transcript of testimony taken on June 20, 1973, reveals the following remarks as having[***20] been made while Mr. Strott was discussing the requirement for additional facilities for the Circuit Court for Anne Arundel County, at page 41:

   'MR. DEHART: When could we obtain copies of these reports and any updating data that's available?

   'MR. STROTT: I'll give you a copy of these.  These are going to be Xeroxed copies, because they are working documents.  I can get them to you early next week, because I'll be out of town, and I'll have them started while I'm gone, a working copy of the central services officer responsible for space. You will see the changes that are required, because it's precious, space.

    'MR. MURPHY: Excuse me, I didn't understand what reports these are, I'm sorry.

   'MRS. SYMONDS: Mr. Strott, would you briefly --

   'MR. STROTT: First of all, I submitted excerpts from three Grand Jury Reports which now the Commission has, which makes [*277] reference to the crowded conditions of the courthouse. It makes reference to deplorable parking conditions.

   'I also made reference to an Avtech study report, which is what we call a space utilization report which we use as a tool.  That report, which was a study document by Avtech in 1969, I think it was published[***21] in 1970, pointed out that the courthouse, plan for the courthouse development -- I say that is a working document that is updated from time to time.

   'MR. MURPHY: Our position would be that we would have to have an opportunity to examine these documents and be able to question Mr. Strott on them.  Our position is that there are a number of alternatives that have to be explored here.

   'We don't question examining these documents, but it would be inappropriate to have them introduced after the hearing is over.

   'MR. STROTT: Well, the county's position is this is a matter of background. We're an extension of the state and we have a responsibility to house the courts and we will proceed.

   'MRS. SYMONDS: This is a representative of the state.

   'MR. STROTT: Yes, and we have a disagreement.'
 
[**814] "At page 126 of the transcript of the same hearing the following appears:

   'MRS. SYMONDS: . . . I would like to say I think Mr. Strott has left.  Maybe this a good time to say it.  We discussed with him the possibility of continuing this hearing on the basis of a request for a chance to review the [*278] reports and so forth upon which the county has based its plans for demolition, [***22]and he was agreeable to this.  So I think we probably will do that.'
 
"Again, at page 137 we find:

   'MR. DEHART: I would like to add before we adjourn that the comments -- I suggested to Mr. Strott, to benefit the county's case, that he should provide whatever material he can to the Commission to demonstrate the county's needs for additional space, as well as the space for additional parking thank you.

   'MRS. SYMONDS: Would someone like to make a motion we continue the hearing?

   'MRS. HARDESTY: Mrs. Symonds, I would like to make this motion, that since we have many other problems to resolve, that we continue this hearing between the county and the Historic District Commission.

    'MRS. SYMONDS: Would someone like to second the motion?

   'MR. DEHART: Second.

   'MRS. SYMONDS: Any discussion?

   'MR. CHRISTHILF: Mrs. Symonds, are we going to set a time for the continuance?

   'MRS. SYMONDS: Mr. Strott is on his way to New York.  I talked to him about it, so I don't think we can set a date until -- the public should know the reasons for it.  I think we have to allow time for people to give the proper importance to the work.

   'MR. DEHART: I think one of the purposes for the continuance[***23] from my point of view is to allow Mr. Strott to provide evidence, as I have suggested, and I think as was brought out tonight, for anyone else, when he does provide [*279] that information to review that material, as well as the material submitted tonight and for us during this period to consider the material submitted to us.

   'MRS. SYMONDS: Anymore discussion on the motion?  All those in favor?

   '(Meeting adjourned.)'
 
"The County provided the reports requested.  Later by agreement between Mrs. Symonds and Mr. Strott the date of July 25, 1973, was established for the continuation of the June 20 hearing.  The transcript of testimony taken at that meeting with Mr. Strott present reveals at page 140:

   'MRS. SYMONDS: We will get on to the main reason this special meeting was called, a continuation of the meeting we had previously on Mt. Moriah Church.

   'This is a public hearing on the proposed demolition of the church by the Anne Arundel County government.  If anybody more wants to testify, we will be glad to have them testify.  Is there anymore testimony?  We have had extensive testimony at the last meeting.

   'Do any of the lawyers wish to proceed at this point? [***24]

   'MR. BLONDELL: Are you calling the opposition, Madam Chairman?

   'MRS. SYMONDS: Since the last meeting, Mr. Strott, director of administration for the county, has given us the report which was mentioned at the last meeting but not available.  Since [**815] that time, those who wished to examine it have had that opportunity.  At this time, if no one wishes to give testimony, I will ask Mr. Strott if anyone from the county would like to come up and make a last statement on the project.'

   [*280] "The County did not object to this second session; on the contrary Mr. Strott participated.  Subsequently at our hearing he testified that he had been unaware of the requirement for the Commission to render its decision within forty-five days of the filing of an application.  He learned of this after the Commission hearings.  We think that he also learned or suspected that the Commission was not going to rubber stamp the County's request and decided to use the forty-five day limitation as a guarantee to victory.  We are also of the opinion that he would have agreed to a continuance albeit with the knowledge of the time limitation.

   "The record clearly indicates that the extension of[***25] the hearing was to accommodate the County.  In addition, the Commission wanted more information about the plans and requirements of the County and the County agreed to provide it.  There is no doubt in our mind that the continuance of the meeting was commutual.  The fact that this arrangement was called a continuance instead of an extension seems to us to be of little moment as the effect was obvious to all.  This action cannot be said to have been hatched under a rose."

   Not only are the chancellor's findings and conclusions on this point not clearly in error, Maryland Rule 886, but they are fully supported by the great weight of the evidence.

   2.

   In our opinion, however, the chancellor erred in holding that the County was not subject to the jurisdiction of the Commission in connection with demolition of Mt. Moriah.  Basically, the resolution of this question turns upon the proper statutory construction of the provisions of the Act of 1963, Ch. 874, as amended, in regard to "Historic Area Zoning" and the provisions of the Historic District Ordinance of the City of Annapolis.  We now turn to a consideration of these statutory provisions.

   The Act of 1963, Ch. 874 was the first[***26] legislative [*281] enactment in Maryland in regard to Historic Area Zoning. The title to that Act indicates that the sections added to the Code were to be under "the new sub-title 'Historic Area Zoning'" and that these new sections made:
 
". . . provision for the preservation of structures of historic and architectural value in the several counties and municipal corporations of this state, establishing the procedures applicable to this power and the rights and duties of the officials of the counties and municipal corporations in relation thereto and relating generally to the preservation, maintenance and reconstruction of certain structures of historic and architectural value in this state . . . ."

   Governor Tawes approved the Act on May 6, 1963, and it took effect on June 1, 1963.

   As originally passed, the Act was effective only in Anne Arundel, Carroll, Cecil, Charles, Frederick, Harford, Howard, Kent, Prince George's, and St. Mary's Counties.  By subsequent amendments, other counties were added to those in which the Act was originally effective and finally, by the Act of 1969, Ch. 471, the Act was made effective state-wide and so appears in the recodification of[***27] Article 66B of the Maryland Code by the Act of 1970, Ch. 672, effective January 1, 1971. n3 Certain [**816] other amendments were made by the Act of 1971, Ch. 440.

n3 Montgomery County was added by the Act of 1965, Ch. 294; Baltimore City by the Act of 1966, Ch. 463; and Queen Anne's County by the Act of 1966, Ch. 546.

   It should be noted that the Act of 1968, Ch. 162 added a new Section 40A to Article 66B of Code (1957, 1967 Repl. Vol.) "to permit historic district Commissions to accept gifts and to acquire architectural easement[s]." The Act of 1968 added the last sentence to what now appears as § 8.03(a) of Article 66B in Code (1957, 1970 Repl. Vol.) and all of § 8.04 (formerly Section 40A) of that Article.

   Section 8.01 of Art. 66B of Code (1957, 1970 Repl. Vol.) [*282] declares the State's purpose in enacting this new concept.  It reads as follows:
 
"§ 8.01. Declaration of public purpose; power to regulate historic, etc., structures; purpose of ordinance or resolution; 'structure' and[***28] 'appurtenances and environmental settings' construed.

   "(a) The preservation of structures of historic and architectural value together with the appurtenances and environmental settings is a public purpose in this State.  The board of county commissioners or county council of every county in the State and the mayor and city council, by whatever name known, of every municipal corporation in this State and the mayor and city council of Baltimore City have power by ordinance or resolution to regulate the construction, alteration, reconstruction, moving and demolition of such structures, their appurtenances and environmental settings within their respective limits.  Hereafter in this subtitle such counties and municipal corporations are referred to as 'county' or 'counties' or 'municipal corporation' as the case may be.  . . .

   "(b) The purpose of an ordinance or resolution in any county or municipal corporation shall be (1) to safeguard the heritage of the county or municipal corporation by preserving the district therein which reflects elements of its cultural, social, economic, political, or architectural history; (2) to stabilize and improve property values in such a district; (3) [***29] to foster civic beauty; (4) to strengthen the local economy; and (5) to promote the use and preservation of historic districts for the education, welfare, and pleasure of the residents of the county or municipal corporation."

   Section 8.02 grants the power to establish historic or [*283] architectural districts.  It provides that for the purpose of the subtitle:
 
". . . each county and each municipal corporation may establish, change, lay out, and define districts which are deemed to be of historic or architectural value, following the procedure in such county or municipal corporation applicable to the establishment or change of areas and classifications of zoning."

   Section 8.03 provides that a county or a municipal corporation "may create a commission to be called 'the historic district commission.'" The commission shall have a membership of from three to seven persons, all of whom are residents of the county or municipality as the case may be.  The terms and other data in regard to the commissioners are then given and it is provided that:
 
"County or municipal authorities may consult private societies or agencies to request the names of possible members[***30] on a commission.  The commission shall have the right to accept and use gifts for the exercise of its functions."

   As already indicated, § 8.04 is the provision in regard to permission to acquire architectural easements added by the Act of 1968, Ch. 162 and provides as follows:

   "The commission may purchase architectural easements in connection with structures located in or adjacent to the historic district. Such easement shall grant to the commission, the residents of the historic district, and the general public the perpetual right to have the exterior [**817] appearance of any structure upon which it is applied retained in substantially the same character as when the easement took effect."

   Section 8.05 provides:

   "Before the construction, alteration, reconstruction, moving, or demolition of any structure is [*284] made within the county or municipal corporation, if any changes are involved which would affect the exterior appearance of a structure visible or intended to be visible from an adjacent public way in the district, the person, individual, firm, or corporation proposing to make the construction or change shall file with the commission[***31] an application for permission to build, alter, reconstruct, move, demolish, or make the addition.  Every such application shall be referred to and considered by the historic district commission and accepted or rejected by the commission.  No permit for any such change may be granted until the commission has acted thereon as hereinafter provided." (Emphasis supplied.)

   The factors to be considered by a commission, the scope of its consideration, and the type of approach to be used by a commission are set forth in §§ 8.06, 8.07, and 8.08.

   The factors to be considered by the commission are:
 
"(1) the historic or architectural value and significance of the structure and its relationship to the historic value of the surrounding area; (2) the relationship of the exterior architectural features of the structure to the remainder of the structure and to the surrounding area; (3) the general compatibility of exterior design, arrangement, texture, and materials proposed to be used; (4) to any other factors including aesthetic factors which the commission deems to be pertinent."

   The scope of the commission's consideration is:

   "The commission shall consider only exterior [***32]  features of a structure and shall not consider any interior arrangements.  Also, the commission shall not disapprove an application except with respect to the several factors specified in § 8.06 above." (Emphasis supplied.)
 
   [*285] In regard to the type of approach to be used by the commission, § 8.08 provides:

   "The commission shall be strict in its judgment of plans for those structures deemed to be valuable according to studies performed for districts of historic or architectural value.  The commission shall be lenient in its judgment of plans for structures of little historic value or for plans involving new construction, unless such plans would seriously impair the historic or architectural value of surrounding structures of the surrounding area.  A commission is not required to limit new construction, alteration, or repairs to the architectural style of any one period."

   Sections 8.09 and 8.10 are of substantial importance in the present case and provide:
 
"§ 8.09. Application for reconstruction, alteration, etc., of structure of unusual importance.

   "(a) If an application is submitted for reconstruction or alterations affecting the exterior appearance[***33] of a structure or for the moving or demolition of a structure, the preservation of which the commission deems of unusual importance to the county or municipal corporation or unusual importance to the entire State or nation, the commission shall attempt with the owner of the structure to formulate an economically feasible plan for the preservation of the structure.  Unless in these circumstances the commission is satisfied that the proposed construction, [**818] alteration, or reconstruction will not materially impair the historic value of the structure, the commission shall reject the application for reconstruction or alteration, filing a copy of its rejection with the building inspector by whatever name known of the county or municipal corporation.  An application for any such reconstruction or alteration, if rejected, [*286] shall not be renewed within a period of one year after the rejection.

   "(b) If an application is submitted for reconstruction, alteration, or for moving or demolition of a structure that the commission deems of unusual importance and no economically feasible plan can be formulated, the commission shall have ninety days from the time it concludes that[***34] no economically feasible plan can be formulated to negotiate with the owner and other parties in an effort to find a means of preserving the building."
 
"§ 8.10. Same -- Approval under certain circumstances.

   "In the case of a structure deemed to be valuable for the period of architecture it represents and important to the neighborhood within which it exists, the commission may approve the proposed reconstruction or alteration despite the fact the changes come within the provisions of subsection 8.09 above if (1) the structure is a deterrent to a major improvement program which will be of substantial benefit to the county or municipal corporation; (2) retention of the structure would cause undue financial hardship to the owner; or (3) the retention of the structure would not be to the best interests of a majority of persons in the community."

   Section 8.11 provides for meetings for the commission, which are to be open to the public, for the right of any interested party or his representative to be heard, and for keeping open records of its resolutions, proceedings, and actions.

   Section 8.12 provides:

   "The commission shall file with the building inspector by whatever name [***35]known of the county or municipal corporation a certificate of its approval, [*287] modification, or rejection of all applications and plans submitted to it for review.  Work shall not be commenced on any such project until such a certificate of approval has been filed, and the building inspector shall not issue a building permit for such change or construction unless and until he has received such a certificate of approval.  If there is no building inspector in the county or municipal corporation, the owner, lessee, or tenant of the property and premises shall not commence the proposed work or change until and unless he or it has received such a certificate of approval from the commission.  The failure of the commission to act upon an application within forty-five (45) days from the date the application was filed shall be deemed to constitute automatic approval of the proposed changes unless an extension of this forty-five day period is agreed upon mutually by the applicant and the commission or the application has been withdrawn."

   There are additional provisions for appeal by "[a]ny person or persons, firm, or corporation" aggrieved by the commission's decision similar[***36] to that provided from a decision of the zoning board or commission within the county or municipal corporation.

   Article XI, "Historic District," of the Code of the City of Annapolis follows in similar language the provisions of Art. 66B, §§ 8.01 to 8.15.  In addition, the Article delineates the boundaries of the Historic District in the City of Annapolis.

   In Section 22-231(f) under the heading "Special considerations," it is provided:

   "(1) In the case of an application for repairs or alteration affecting the exterior appearance of a structure or for the moving or demolition of a structure [**819] which the commission deems so valuable to the city, state or nation that the loss thereof will be a great loss to the city, state or nation, the commission shall endeavor to work out with the [*288] owner an economically feasible plan for the preservation of such structure.

   "(2) Unless the commission is satisfied that proposed construction, alteration or repair will not materially impair the historic value of a structure, the commission shall file with the building inspector its rejection of such application.

   "(3) In the absence of a change in such structure arising from casualty [***37]no new application for the same or similar work shall be filed within one year after such rejection.

   "(4) In the case of any structure deemed to be valuable for the period of architecture it represents and important to the neighborhood within which it exists, the commission may file with the building inspector its approval of such application if any of the circumstances under which approval might have been given under the preceding paragraphs are in existence or if:

   a. Such structure is a deterrent to a major improvement program which will be of substantial benefit to the city.

   b. Retention of such structure would cause undue financial hardship to the owner.

   c. Retention of such structure would not be in the best interest of the majority of the community."

   Section 22-235 contains the sanctions for violation of the Historic District Ordinance and provides that, in addition to other remedies and penalties, the building inspector, the Commission, or the zoning board of appeals "shall institute appropriate action to prevent, enjoin, abate or remove such violation."

   Section 22-236 provides that any person or persons, jointly or severally, or firm or corporation, aggrieved by a[***38] decision of the Commission, may appeal to the Circuit Court for Anne Arundel County and also provides for a further appeal from that court to this Court.

   [*289] The City of Annapolis is one of the municipal corporations having home-rule powers pursuant to Art. XI-E of the Maryland Constitution as implemented by Art. 23A of the Maryland Code.  As a home-rule municipality, there are no limitations or provisions in the constitutional or statutory provisions which purport to exempt the County from the laws of the City of Annapolis.  Indeed, Section 6 of Art. XI-E of the Constitution of Maryland provides that its charter "shall be subject to all applicable laws enacted by the General Assembly," of which the Act of 1963, Ch. 874, as amended, is obviously one.

   The City of Annapolis is not only the capital of the State, but is also the county seat of Anne Arundel County, so that the County must obviously carry on functions in Annapolis.  The City has recognized this in its charter.  See Section 53 which provides:

   "The public lands and buildings heretofore purchased and built by the state or Anne Arundel County, in said city, are reserved and continued forever to the uses to which[***39] they have been allotted, and the judges of the several courts which have usually held their courts in the said city, in the public courthouse thereof, shall and may continue to do so; and the justices of the peace, county commissioners and sheriff of Anne Arundel County shall have, hold and exercise their jurisdiction in as full and ample manner in the said city as heretofore."

   This Court has held, however, that a County can be subject to the reasonable police regulations of an incorporated municipality.  In Centreville v. Queen Anne's [**820] County, 199 Md. 652, 87 A. 2d 599 (1952), the Town of Centreville -- an incorporated municipality -- in the exercise of its police powers, proposed to install and maintain certain parking meters on land owned by Queen Anne's County around Court House Square in Centreville.  Queen Anne's County sought to enjoin the installation of the parking meters on its land and the Circuit Court for Queen Anne's County issued the injunction.  On appeal, our [*290] predecessors reversed and directed that the bill of complaint be dismissed.  Judge Delaplaine, for the Court, stated:
 
"Counties are created for the purpose of carrying[***40] out the policy of the State for the administration of matters of political government, including taxation, education, improvement of roads, and care of the poor, and for the administration of justice.  The powers and functions of the county, as distinguished from municipal corporations, have a direct reference to the general, rather than the local, policy of the government of the State. Municipal corporations are created principally for the advantage and convenience of the people of the locality.  The powers of the counties under the general law of the State do not include the police power.  The police power is delegated to the municipal corporations.  The counties must comply with reasonable police regulations in the interest of the general welfare.  Cook County v. City of Chicago, 311 Ill. 234, 142 N. E. 512, 516, 31 A.L.R. 442."
(Emphasis supplied.)
199 Md. at 655-56, 87 A. 2d at 600-01.

   We observe that the City of Annapolis has subjected itself to the provisions of its own zoning laws (see Code of the City of Annapolis, Section 22-5) and that the County has also subjected itself to its zoning laws.  (See Anne Arundel County Code, Section 13-334A)

   The chancellor was[***41] of the opinion that historic zoning was analogous to traditional zoning and that the majority rule of our sister states that a county would not be subject to a municipal zoning ordinance in regard to a county governmental function applied. n4 We disagree with the chancellor's conclusion in this regard.

n4 On the question of whether there is an implied exemption of one political subdivision from the effect of the traditional zoning laws of another political subdivision, see "Application of zoning regulations to governmental projects of activities," 61 A.L.R.2d 970 (1958); Note, Governmental Immunity from Local Zoning Ordinances, 84 Harv. L. Rev. 869 (1971); 2 Metzenbaum, The Law of Zoning, Chapter X-i (1955); 2 Rathkopf, The Law of Zoning and Planning, Chapter 53 (1960) and cases cited therein.  But see St. Louis County v. City of Manchester, 360 S.W.2d 638 (Mo. 1962), indicating that, if the traditional zoning regulations have not completely excluded the proposed use and if there are reasonable alternatives available, then one political unit will be held to be subject to the zoning regulations of another political unit.

[***42]

   [*291] Assuming, arguendo, that the County intends to carry out a governmental function on the site where Mt. Moriah stands, we are of the opinion that there are substantial and significant differences between traditional zoning and historic area zoning, which indicate that the General Assembly by the Act of 1963, Ch. 874, as amended, intended that the political subdivisions owning land within a historic district be subject to the jurisdiction of the historic area commission. n5

n5 The chancellor assumed that the County intended to use the site for an addition to the courthouse facility and that, inasmuch as the County "has the responsibility to support the Courts and the authority to acquire property and erect buildings thereon to carry out that task," a governmental function by the County was involved.  The difficulty with this conclusion in the present case is that the County never established by proof how it intended to develop the site other than to use it as a temporary parking area after the demolition of Mt. Moriah, a rather clear case of "getting the cart before the horse," as it were. One cannot determine from the evidence whether the County intended to use the temporary parking area in connection with the use of the courthouse, as such, or whether it would temporarily use it in a proprietary capacity.

[***43]

   [**821] First of all, traditional zoning is primarily directed at the use of land, as well as the density and the location of buildings on the land. Historic area zoning, on the other hand, is not directed at any of these factors, but only at the preservation of the exterior of buildings having historic or architectural merit.  In the present case, the County may use Mt. Moriah for any permitted use it desires.  The limitation upon it by the Historic District Ordinance is that the exterior of Mt. Moriah not be destroyed or substantially altered without the permission of the Commission.  Traditional zoning is directed at limited control of land within the framework of the police power; historic area zoning is directed at preservation of the exterior of certain buildings.

   Secondly, to accomplish the primary purposes of historic area zoning, it is necessary that the exterior of the building having historic or architectural value be preserved against [*292] destruction or substantial impairment by every one, whether a private citizen or a governmental body.  In short, the historically or architecturally valuable building is just as much lost [***44]by destruction by a public body as it would be by a private owner. The facts in the present case should lay to rest the notion that public bodies -- as contrasted with private owners -- would not be likely to press for demolition of buildings having established historic or architectural value.  The General Assembly could well conclude that, to accomplish historic and architectural preservation, the jurisdiction of the Commission should extend to all owners be they private persons or governmental agencies.  Otherwise, the primary purpose of the legislation would be frustrated.

   In sum, the legislative intent is ascertained by considering the words used in the legislation in their plain and ordinary meaning; and when those words are not ambiguous, there is no need for application of the rules of statutory construction.  See Scoville Service, Inc. v. Comptroller of Treasury, 269 Md. 390, 306 A. 2d 534 (1973); Atlantic, Gulf and Pac. Co. v. State Dept. of Assess. & T., 252 Md. 173, 249 A. 2d 180 (1969); Hunt v. Montgomery County, 248 Md. 403, 237 A. 2d 35 (1968); and Falcone v. Palmer Ford, Inc., 242 Md. 487, 219 A. 2d 808 (1966).
 
   The chancellor, noting that § 8.02[***45] of Art. 66B provides that the procedure for establishing a Historic District was to be that "applicable to the establishment or change of areas and classifications of zoning," indicated that the General Assembly believed that historic zoning was "analogous to traditional zoning" and hence the majority rule in regard to the impact of traditional zoning on governmental agencies was applicable to historic zoning. As indicated, we come to a different conclusion.  Indeed, the fact that the procedure for traditional zoning is mandated for the establishment of the historic areas -- giving of notice, filing of plats, etc. -- indicates to us that the General Assembly intended that the substance of the new legislation in regard to historic area zoning was to be different from that of traditional zoning, rather than the contrary.

   [*293] The chancellor was also of the opinion that Section 22-228(c) of Article XI of the Code of the City of Annapolis indicated an intention by the Mayor and Aldermen of the City of Annapolis to exclude the County from the jurisdiction of the Commission.  Again, we disagree with this conclusion.

   Section 22-228(c) provides:

   "(c) The provisions[***46] of this article shall not apply to any structure which must be removed or demolished by reason of the construction of a new public highway or by reason of the operation of any other law pertaining to the city relating to the repair or demolition of any building."

   We interpret this language to be consistent with the enabling legislation -- see § 8.13 -- and thus the law in regard to repairs contemplates those repairs relating to ordinary [**822] maintenance.  See Groh v. Washington County, 245 Md. 441, 445-46, 226 A. 2d 264, 267 (1967) to the effect that when an ordinance is enacted, pursuant to an enabling statute, the ordinance will be construed by reading it with the statute and if the language of both is substantially the same, it is presumed that the ordinance was designed to follow the statute.  Under Section 22-228(c), the question of the necessity for removal or demolition by reason of the construction of a new highway is one which must be considered by the Commission so far as structures in the Historic District are concerned.  If such removal or demolition is necessary, then the Commission will grant permission for such removal or demolition in accordance[***47] with the provision of subsection (c).

   Although apparently not in the record, the brief for the City of Annapolis advises us -- without contradiction in the opposing brief -- that the City considers itself subject to the jurisdiction of the Commission and has submitted to the Commission "its own applications for a complete renovation and reconstruction of the City's Market House and for the construction of a new multi-level City parking garage" for the Commission's approval according to the Historic District Ordinance.

   [*294] The County, in its brief and at argument, indicated that it was deprived of its property by the action of the Commission without due process of law and that its property was taken for public use without the payment of just compensation, contrary to the provisions of Article 23 of the Declaration of Rights in the Constitution of Maryland and Article III, § 40 of the Maryland Constitution.
 
   So far as a taking without the payment of just compensation is concerned, in the posture in which this case reaches us, there most certainly is no confiscation in the present case.  Indeed, the enabling statute and the ordinance do not limit the use of Mt. Moriah, but[***48] only provide that the Commission may prevent the destruction or change in the exterior of the building.  Not only is the County not deprived of all reasonable use of the site and Mt. Moriah -- the requirement for a finding of confiscation by the traditional zoning laws, see Poe v. City of Baltimore, 241 Md. 303, 216 A. 2d 707 (1966) and Frankel v. City of Baltimore, 223 Md. 97, 162 A. 2d 447 (1960) and prior cases cited in those opinions -- but its use is not disturbed at all. In sum, the rather mild limitation in regard to Mt. Moriah's exterior is far removed from unconstitutional confiscation.

   So far as any denial of due process of law is concerned, the protections for the property owner contained in the enabling statute and the Historic District Ordinance quite sufficiently afford a property owner due process of law, and did afford the County due process of law in the present case.  The provisions in regard to notice and hearings are ample and effective. The standards and criteria for the Commission's decisions are adequate to protect a property owner, and did afford protection to the County in the present case.

   The decision of the Commission, already set[***49] out in full, made careful findings supported by the substantial weight of the evidence produced before it at the hearings of June 20 and July 25 and was in no way arbitrary or capricious.

   The testimony of Dr. Benjamin Quarlles of the faculty at Morgan State College, of Delegate Walter Dean, and of Franklin C. Shorell, Executive Director of the Maryland Commission on Negro History and Culture, sufficiently [*295] supported the Commission's finding that Mt. Moriah had historic value.  The testimony of John Murphy, representing the Maryland Historical Trust, and the documents introduced through him supported the Commission's finding that Mt. Moriah had architectural value and indeed was one of Annapolis' "hidden architectural treasures."

   [**823] Dr. Quarlles testified in part in regard to the significance of Mt. Moriah to black history and culture, as follows:
 
"There are others here who will speak about this particular church, who know it quite well, who know its architectural quality and who know historically how very well it is going back, even to 1799, but when we come down to what a black church is, I think many of us may not be fully aware of that.  There are probably[***50] few things that are more worth preserving to blacks than a black church.

   "One of the greatest blacks, Frederick Douglass, who is perhaps the most prominent black in this state, has pointed out [that] the church is the Alpha [to] Omega of all things in black life.  He was speaking in 1849, so that the black church was the first self-governing church. It had its own destiny, it was an outlet for black expression.  Blacks could express themselves in many ways. So that the church was a religious organization, but it also was a forum for general expression, for social expression in black life.  So that when we think of the black church, it has meant a great deal in black life.  So that I think the blacks, the humanity of the black really had a religious base in a period when there was a great deal of discrimination against blacks.

   "I need not say also when we come to the black church, we have an agency of grace, an agency of good will, an agency of brotherhood, an agency of fellowship in a period when race relations were particularly strained.  So when I think of interracial [*296] good will, I think of the preservation of a church, of a synagogue or any religious edifice. [***51]

   "When I think of the notables from this state, this state had many more blacks, notable blacks, so when we have a church here in a historic city, a historic area going back, as we see on the walls, it would seem to me this was an especially historically minded audience, historic Annapolis, a historic church which has meant a great deal to a black community.

   "So when I think of the black community as a totality, what it might symbolize in good will and the whole complex of American life, I think there is a greater responsibility to us to take a look at this kind of meaning that this church has, and when I think we think of that, it's an added dimension to what this church and the preservation of this church would mean, and that's why I commend it seriously to your attention."

   The County did not produce evidence which would bring it within the "Special considerations" set forth in Section 22-231(f) of the Historic District Ordinance, particularly subsection (f)(4) a, b and c, which provides that the Commission may approve the application if the structure "is a deterrent to a major improvement program which will be of substantial benefit to the city," or if the "[r]etention of[***52] such structure would cause undue financial hardship to the owner" or if the retention of the structure "would not be in the best interest of the majority of the community."

   In the present case, the County did not offer proof of a definite plan for a public improvement or other evidence which would bring its application within the criteria just mentioned.  There may be cases arising before the Commission in the future in which the testimony is so clear and uncontradicted to the effect that the application fits within the above criteria, that a denial of the application might be held to be arbitrary or capricious, and thus a denial of due process of law. But, as we have indicated, the case, in its present posture, clearly is not one of them.

   [*297] We do not reach the question of the extent of any obligation imposed upon the Commission by Art. 66B, § 8.09 and Art. XI, Secs. 22-231(f) of The Code of the City of Annapolis.

   [**824] The County has the right by virtue of Section 22-231(f)3 of the ordinance to file a new application after one year from August 7, 1973, the date when its present application was rejected by the Commission, unless there is a change in Mt. Moriah, [***53] arising from a casualty, in which case an application may be filed sooner.  Thus, the County is not blocked by the ordinance from filing a new application within a reasonable time if it deems such action to be in the public interest.

   Decree of September 5, 1973, reversed and the case remanded to the Circuit Court for Anne Arundel County for the entry of a decree declaring that the appellee, Anne Arundel County, is subject to the application of the Historic District Ordinance, sections 22-226 through 22-236, inclusive, of the code of the City of Annapolis and making permanent the injunction issued on September 6, 1973, enjoining the appellee, Anne Arundel County, from proceeding with the demolition of the building known as Mt. Moriah African Methodist Episcopal Church of Annapolis; the costs to be paid by the appellee, Anne Arundel County. 

MISSLER v. ANNE ARUNDEL COUNTY 
No. 123, September Term, 1973
 
Court of Appeals of Maryland
 
271 Md. 70; 314 A.2d 451; 1974 Md. LEXIS 1023

 January  29, 1974, Decided

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

DISPOSITION: Case remanded to the trial court without affirmance or reversal for further proceedings not inconsistent with this opinion.  Costs in this Court and in the trial court to abide the final result.

CORE TERMS:  deposit, refund, deficit, judicata, final judgment, assessable, sewer line, connected, locality, two-year, general relief, res judicata, prayer, completion, clerk, sewer, previous action, front foot, constructing, reformation, deposited, finance, different cause of action, review period, relitigating, extraneous evidence, subsequent action, summary judgment, general issue, set forth

COUNSEL: William J. Boehm for appellant.

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

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

* McWilliams, J., participated in the hearing of the case, in the conference in regard to its decision, but retired prior to the adoption of the opinion by the Court.

OPINIONBY: DIGGES

OPINION: [*71] [**452] This equity action was filed in the Circuit Court for Anne Arundel County by Earl B. Missler, the appellant and cross-appellee, naming Anne Arundel County, appellee and cross-appellant, as defendant. Throughout this protracted litigation, the appellant has advanced and subsequently abandoned several varied but interrelated legal theories in pursuit of recovery from the county moneys he was required to deposit with the Anne Arundel County Sanitary Commission in order to obtain the construction of a sewer main.  However, [**453] since most[***4] of these sundry contentions have been forsaken by Missler at one point or another during this litigation, we shall not relate them here but instead proceed to briefly set out the facts involved in the controversy and then synthesize the issues in an effort to bring order to what the parties agree has become procedurally quite confusing.

   The events which comprise the background for this suit [*72] began to unfold in 1960 when appellant, as the owner and developer of a parcel of real estate located on Nursery Road near the Baltimore-Washington Expressway in Anne Arundel County, required a sewer main.  In an effort to obtain this service which today is in short supply in many parts of this State, Missler began negotiations with the sanitary commission to obtain an extension of one of the pre-existing lines located some 2,000 feet away.  When it appeared from an evaluation of the potentially assessable properties to be served by the proposed main that this would not be a self-sustaining project for at least a number of years, the county and appellant entered into the deficit financing agreement which was to become the epicenter for this dispute.  Because of its obvious importance[***5] we set forth that agreement except for the execution portion:

   DEFICIT DEPOSIT AGREEMENT ANNE ARUNDEL COUNTY SANITARY COMMISSION

   THIS AGREEMENT, made this 14th day of December, 1960 by and between Earl B. Missler hereinafter called the Petitioner, of the first part, and the Anne Arundel County Sanitary Commission, a municipal corporation, hereinafter called the Commission, of the second part.

   WHEREAS, the Petitioner has requested the Commission to construct and install sewer pipes in Nursery Road, Overlook as per Plat on Project No. 60-5-45-S attached hereto; and

   WHEREAS, the Commission is willing to install said pipes, subject, however, to the terms and conditions hereinafter set forth.

   NOW, THEREFORE, THIS AGREEMENT WITNESSETH, That in consideration of the premises and of the mutual promises hereinafter contained, the parties hereto do promise and agree as follows:

   1. The project herein referred to shall be designed and constructed under the supervision of [*73] the Chief Engineer of the Anne Arundel County Sanitary Commission.

   2. Before the work of constructing the said project will be authorized by the Commission, the Petitioner must deposit with the Commission and[***6] in favor of the Sanitary District the sum of Sixty-four Thousand One Hundred Forty-eight and 24/100 Dollars, which sum represents that part of the construction cost of said project which will not, within a reasonable time after completion thereof, be supported by income from front foot benefit assessments considered at the time of the proposed construction to be subject to levy, plus a 15% charge for administering this Agreement, all as estimated by the Treasurer of the Anne Arundel County Sanitary Commission.

   3. After completion of the work of constructing the said project, there shall be an adjustment of funds so as to provide that the amount of the deposit shall equal the actual deficit, plus 15%, as determined from actual costs insofar as they can be ascertained, including Engineering and Administrative overhead expense incurred by the Anne Arundel County Sanitary Commission.

   4. This Agreement shall remain in effect for a period of six years from the date hereof, unless terminated prior thereto by mutual agreement of the parties hereto, in which case a Release from the Petitioner to the Commission will be required of the Petitioner.

   [**454] 5. This Agreement will be reviewed[***7] every two years for the purpose of making refunds to the Petitioner from the amount deposited hereunder and, if it then appears that lots or portions of the locality which were not considered to be assessable for benefits at the time of construction are connected to the said project, resulting in additional benefit assessments not previously considered, the aforementioned deposit may be reduced by a refund [*74] to the Petitioner in a proportion to be determined on the basis of the capitalized income from the front foot benefit assessments; provided, however, that the total assessable frontage as finally determined must produce sufficient income to finance the installation herein described.  If such income be insufficient to finance the cost of installation, the Petitioner shall not be entitled to a full refund of the deposit, but the Commission will be entitled to deduct the deficiency so calculated before making the final refund.

   6. The Petitioner agrees upon completion of the work of constructing this project to accept and pay the first class rate on each and every lot abutting on the water and/or sewer facilities constructed as per the plats attached hereto.

   7. If lots or[***8] portions of the locality are connected to the project, front foot benefit assessments will be levied in accordance with the Code of Public Local Laws of Anne Arundel County, Sections 486-537, inclusive, as pertains to the Anne Arundel County Sanitary Commission.  The Commission shall exercise their discretion in determining the extent of the frontage applicable to each property connected for the purpose of fixing the amount of the refund to Petitioner from time to time.

   8. After the expiration of six years from the date of this Agreement, the amount of the deposit which remains after final review of the Agreement by the Treasurer shall be automatically transferred to the Anne Arundel County Sanitary Commission Capital Fund.

   9. All financial adjustments between the Commission and the Petitioner shall be made during the month of January, based on calculations as of October 1st of the preceding year.

   10. It is understood and agreed that this Agreement shall be binding upon the parties [*75] hereto, their heirs, personal representatives, successors and assigns.

   Throughout this litigation, the appellant has maintained that all his sewage disposal requirements could have been[***9] met by the construction of an eight inch main rather than the twelve inch line which the commission accepted bids for and built.  Missler relies on this fact as being strong evidence in support of his contention that the contract provides that he shall receive a refund up to the full amount of his deposit for all but the original lots which were subsequently assessed as a result of being connected to this new line or any extension thereof during the six-year term of the agreement.  Why else, he argues, would he be required to pay for the part of a sewerage system which exceeded his needs but for the fact that it was contemplated that he receive a refund of his deficit deposit from the commission when all who subsequently reaped the benefits of the increased capacity were assessed their fair share?

   Following payment of the $64,148.24 estimated deficit required to be deposited under the agreement, work on the line was commenced and proceeded without interruption until completion in May of 1961.  At that time, the final financial analysis of the project revealed that there had been a substantial cost overrun.  Accordingly, relying on paragraph number 3 of the agreement, the commission[***10] made a demand upon Missler for an additional $16,367.29. When this request was not met, the commission filed an action at law in the Superior Court of Baltimore City on September 14, 1962 to recover that amount. The [**455] pleadings filed in that case included a motion for summary judgment made by the commission.  However, before the court acted upon this motion, the parties were able to compromise their differences with Missler paying $5,540.71 to the sanitary commission and, on June 16, 1963, at the written direction of the plaintiff's attorney, the clerk of the court entered the suit paid, settled and satisfied. n1

n1 For the authority of the clerk to file all papers delivered to him for that purpose see Maryland Code (1957, 1973 Repl. Vol.) Art. 17, § 1; and, for the authority of the clerk to enter a judgment satisfied upon an order in writing of the plaintiff see Md. Rule 603 a.

   [*76] This spirit of compromise which had concluded the Baltimore case was shattered in November of 1966 when appellant[***11] became acquainted with the county's n2 intent to use the line, without any refund to him, as an interceptor for sewage to flow from an area a short distance to the south of his project.  Aghast at the thought that he would not be reimbursed in accordance with his interpretation of paragraph number 5 of the agreement, appellant initiated this action by filing a "Bill of Complaint to Reform Contract" n3 in an effort to recover all or part of his deficit deposit. At the trial, Judge E. Mackall Childs first rejected the county's contention that Missler's claim was barred by the doctrine of res judicata because of the final judgment entered in the Baltimore City case.  Consequently, the judge, having considered all of the evidence, held that although there was no provision in the contract for the funding of this project through future extensions beyond the locality of the Missler development, a final review of the financial status of appellant's deposit showed that the sum of $1,944.55 was due "computed on the same basis as was the settlement in the Superior Court of Baltimore City." Accordingly, utilizing the general relief prayer contained in the complaint, Judge Childs signed a decree[***12] which awarded the developer damages in that amount. For the reasons which follow, we shall [*77] remand the case without affirmance or reversal for further proceedings to be conducted in the light of this opinion.  Maryland Rule 871 a.

n2 In July 1965, with the adoption of the Anne Arundel County Charter, the Sanitary Commission was abolished and its duties, responsibilities and obligations were transferred to the county's Department of Public Works.  No one in this case questions the fact that the county as the commission's successor has assumed its contractual obligations.

n3 The prayers for relief contained in the complaint request the court:

   "(a) To reform the original Deficit Deposit Agreement to provide for reimbursement of the Deficit Deposit Agreement money upon the sewer line being utilized as an interceptor line for new area not contemplated by the original contract.

   "(b) To reform the original Deficit Deposit Agreement to the effect that if said sewer line is being utilized by other areas and said other areas are being or can be assessed according to law to support the construction and maintenance costs of said sewer line, that the deficit deposit with the Commission is no longer needed as provided for in the original Deficit Deposit Agreement and that said deficit deposit be returned to the Complainant.

   "(c) And for such other and further relief as his cause in equity may require."

[***13]

   Although, as previously mentioned, throughout this litigation the appellant has created extensive confusion by raising and then subsequently either partially or completely abandoning several theories for recovery, at oral argument in this Court his attorney has made clear what in fact Missler is presently contending.  Rather than pursuing his original request for reformation, appellant now urges that a proper construction of the contract as written (in particular paragraph number 5) demonstrates that he is entitled to a return of his entire deposit and that the trial court should have ordered this refund under the prayer for general relief. The county, on the other hand, throughout this action, in addition to construing the contract differently, has consistently argued that the doctrine of res judicata bars any recovery on any theory.

   [**456] As much of the controversy now before us can be disposed of by first considering the county's res judicata contention, we deal with that question at this time.  The doctrine of res judicata was succinctly delineated by this Court in Pat Perusse Realty v. Lingo, 249 Md. 33, 35, 238 A. 2d 100 (1968), where we said:
 
   "The basic rule[***14] of res judicata is that facts or questions which were in issue [or which might have with propriety been placed in issue but were not, Alvey v. Alvey, 225 Md. 386, 171 A. 2d 92 (1961)] in a previous action and were [or could have been] therein determined by a court which had jurisdiction of the parties and the subject matter are conclusively settled by a final judgment in the first case and may not again be litigated in a subsequent action between the same parties or their privies even though the subsequent suit takes a different form or is based on a different cause of action."
 
As a bar to a portion of appellant's claim, the county's [*78] reliance on this doctrine is well placed.  We say this because in Maryland when a law action is terminated by the entry on the docket "paid, settled and satisfied" made at the direction of the plaintiff, although executed by the clerk's hand, it is done under the eye and with the sanction of the court, and must accordingly be taken as a judicial act no longer open to question or controversy in any collateral proceeding.  Indeed, the entry settled and satisfied on the docket constitutes an "exhaustion of the right of action on[***15] that obligation." Tabler v. Castle, 22 Md. 94 (1864); accord, Clark v. Southern Can Co., 116 Md. 85, 81 A. 271 (1911). Or, as was stated for this Court by Chief Judge Hammond in Corey v. Carback, 201 Md. 389, 402, 94 A. 2d 629 (1953), "[a]n entry 'agreed and settled' [or its equivalent -- 'paid, settled and satisfied'] has the effect of a judgment and may be stricken out by the court only after a direct proceeding for that purpose." Clearly then, that which was the subject of the Baltimore suit involving the same parties as those engaged in combat in this case is barred from being relitigated here, even though the present suit may be based upon a different cause of action. Pat Perusse Realty v. Lingo, supra. To determine what was finally resolved in the Baltimore suit and thereby ascertain what is precluded from being relitigated, we review the pleadings which were filed in the former cause and which are included as part of the record here. From these documents it is clear that a determination of what the parties had promised by entering into the contract was the subject of that suit. Accordingly, with the entry of a final judgment there, any question as to whether[***16] appellant deposited too much or whether as a result of some breach on the part of the county he was not required to make an additional deficit deposit (or for that matter any deposit at all), having been thus judicially determined, is no longer open to dispute here.  For this reason, we need not discuss appellant's contention that by failing to issue the bonds purportedly contemplated by the contract the county breached its promise.

   Unfortunately for appellant, from our examination of the record we conclude that he is prohibited from relitigating [*79] some of the other issues raised here as well.  Any claim for money owed in accordance with the refund provisions contained in paragraph number 5 which had accrued at the time of the Baltimore settlement was, we think, likewise conclusively determined by entry of the final judgment in that case.  This is true because Missler in answer to the county's declaration filed the general issue plea and by so doing actually placed this matter in issue.  It is well settled in this State that any claim which a defendant had growing out of the same transaction or occurrence that is set out in the declaration may be recouped under this plea[***17] to the extent of the plaintiff's claim.  Holloway v. Chrysler Credit Corp., 251 Md. 65, 246 A. 2d 265 (1968); Eisenberg, [**457] Admin. v. Air Cond., Inc., 225 Md. 324, 170 A. 2d 743 (1961); District Agency Co. v. Suburban, 224 Md. 364, 167 A. 2d 874 (1961). Therefore, any demand for a refund which could have arisen because of new assessments made during the first two-year review period has been settled by the Baltimore suit and cannot again be litigated.  In fact, Missler's affidavit in opposition to the commission's motion for summary judgment filed in that action specifically resisted the county's claim for this very reason by alleging:
 
"that in paragraph 5 of said agreement, which has been attached as Plaintiff's Exhibit No. 1, it obligated the Plaintiff to review the agreement and make refunds, that the deficit deposit agreement is dated December 14, 1960 and before this matter can be heard more than two years will have elapsed, and in accordance with paragraph 5, a refund will be due to the petitioner therein, and the amount of money alleged to be due and owing would not be due and owing without such an accounting."

   Barred from relitigating these[***18] matters and having abandoned his request for reformation, appellant's sole remaining theory of recovery is that he is entitled to a refund if "lots or portions of the locality which were not considered to be assessable for benefits at the time of construction are connected to the said project [(necessarily by our decision subsequent to the first two-year review)], [*80] resulting in additional benefit assessments not previously considered . . . ." (quoted from paragraph number 5).  He reasons that the trial court's award of $1,944.55 does not accurately reflect the amount owed to him under paragraph number 5 of the deficit deposit agreement. Appellant therefore asks this Court to remand the proceedings for a determination of the proper amount due.  We agree that a remand is in order but our reasons do not entirely coincide with those of the appellant.  In the first place, we are unable to determine from the record if Missler's award reflected an allowance for lots which became assessable during the first two-year review period. If it did, because of our view on the res judicata question, such an award would be improper.  In addition, we do not agree with the trial judge that [***19] paragraph number 5 is clear and unambiguous in all its terms.  When, as we think exists in this case, doubt arises from the writing itself as to what the parties meant by the language employed, extraneous evidence of what the words and actions of the parties would reasonably induce another to believe was intended may be admitted to assist the court in determining what was in fact agreed to by the parties.  Allen v. Steinberg, 244 Md. 119, 127, 223 A. 2d 240 (1966); McKeever v. Realty Corp., 183 Md. 216, 37 A. 2d 305 (1944). This in no way controverts the principle that the written language embodying the terms of an agreement alone will govern the rights of the parties irrespective of their subjective intent if that language is, on its face, clear and unambiguous. Kasten Constr. v. Rod Enterprises, 268 Md. 318, 328, 301 A. 2d 12 (1973). It is unclear to us what "portions of the locality" the agreement refers to. Furthermore, from the four corners of the document itself we cannot tell what the parties meant by using the words "not considered assessable".  Does this contemplate a change in land use or in topography in the immediate area of the line such that additional assessment[***20] would result; or, as appellant contends, does this include an area which was subsequently assessed as a result of extending this line; or, does it mean neither of them or both? Accordingly, we remand this case to the trial court for consideration of any available testimony which may be received as an aid in [*81] determining what the parties agreed to when they chose these phrases.  If appellant can demonstrate that the agreement encompasses assessments which have developed since the first two-year [**458] review but have not been accounted for by an appropriate refund, he is entitled to recover, under the general relief clause prayed in his bill, any amount found to be due under the contract.  This is so despite the fact that his original bill was for reformation. Charles Co. Broadcasting v. Meares, 270 Md. 321, 311 A. 2d 27 (1973); McKeever v. Realty Corp., supra; Powell v. Young, 45 Md. 494 (1877).

   Case remanded to the trial court without affirmance or reversal for further proceedings not inconsistent with this opinion.

   Costs in this Court and in the trial court to abide the final result. 

KIMM et ux. v. ANDREWS 
No. 71, September Term, 1973
 
Court of Appeals of Maryland
 
270 Md. 601; 313 A.2d 466; 1974 Md. LEXIS 1339

 January  3, 1974, Decided

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

DISPOSITION: Decree of September 22, 1972, reversed and the case is remanded to the lower court for the entry of a decree dismissing the bill of complaint, with prejudice, and requiring the plaintiff, Michael W. Andrews (appellee in this Court) to pay the costs; the costs in this Court also to be paid by the appellee .

CORE TERMS:  settlement, subject property, seller, specific performance, prior contract, purchaser, buyer, notice, pipes, decree, null and void, septic, water, chancellor, deed, proposed settlement, mutually, inasmuch, settle, failure to perform, purchase money mortgage, boundary lines, effective, condition precedent, enforceable, bona fide purchaser, dead, communicated, signature, deposit

COUNSEL: Vincent A. Mulieri, with whom were Thomas J. Wohlgemuth and Smith & Wohlgemuth on the brief, for appellants.

   Marvin H. Anderson, with whom were Anderson & Anderson on the brief, for appellee.

JUDGES: Murphy, C. J., and Barnes, McWilliams, Singley, Smith, Digges and Levine, JJ.  Barnes, J., [***4] delivered the opinion of the Court.

OPINIONBY: BARNES

OPINION: [*602] [**467] This appeal involves two written contracts for the sale of the same 53 acres of land and the improvements thereon in Gambrills, Anne Arundel County (the subject property), signed by the owners, J. Maurice Dicus, Jr. and his wife, Doris E. Dicus.  The first contract was signed on December 10, 1970, with the appellants, Lloyd C. Kimm and his wife, Diana C. Kimm, as purchasers. The second contract was dated April 5, 1971 (but agreed upon and signed on April 4, 1971), with the appellee, Michael W. Andrews, as purchaser. The Circuit Court for Anne Arundel County (Wray, J.) granted specific performance of the Andrews contract by its decree of September 22, 1972, in which it also declared null [*603] and void the deed from the Dicuses to the Kimms for the subject property and the purchase money mortgage from the Kimms to the Dicuses, both dated May 4, 1971, and recorded May 6, 1971. The principal issues in the case involve the validity of the first contract at the time the second contract was signed, the status of Mr. Andrews as a bona fide purchaser, and the determination of whether the Dicuses and the[***5] Kimms waived the provision in the first contract that time was of the essence and, if so, whether such a waiver was effective against Mr. Andrews.

   The metes and bounds description of the subject property appearing in the deed of May 4, 1971, indicates that it is an irregularly shaped tract with eight corners.  The improvements on the land consist of the home of the Dicuses and four other houses.

   The first contract of December 10, 1970, was prepared by Ira J. Wagonheim, a member of the Bar, who acted as the attorney for the Dicuses in that transaction.  It recited, inter alia, that the subject property "has a road frontage on Gambrills Road of eight hundred (800) feet, more or less" and that the selling price was $80,000 of which $500 had been paid prior to the signing of the contract and the balance to be paid as follows: an additional $29,500 to be paid at the time of settlement and the $50,000 balance to be financed by a purchase money mortgage, under terms and [**468] conditions set forth in the contract.  The contract then provides:

   "It is expressly understood and agreed that this contract shall be subject to the following terms and conditions, and upon failure[***6] of any of said terms and conditions, this contract shall become null and void, and all deposit monies shall be promptly returned:

LCK   1. Sellers will take back a purchase money
    mortgage for Fifty Thousand Dollars
JMD ($ 50,000.00), payable in twenty-five (25)
    years, said mortgage bearing interest at the
DED
    rate of six per cent (6%) per annum,
DCK computed on the unpaid principal balance,
    with the right of prepayment without
    penalty after the end of the tenth year;
    monthly installments to include principal
    and interest, with Buyers paying annual real
    estate taxes and other public charges
    assessed against the property.  Buyers are
    also to insure the premises for not less than
    Fifty Thousand Dollars ($ 50,000.00) for
    benefit of sellers.
      2. All houses situate on said premises are
    being sold 'as is'.
      3. Sale includes: Kitchen stoves in all
    houses, one (1) refrigerator, one (1) Ward's
    freezer, space heaters and heating
    equipment in all houses.
      4. Prior to settlement, Sellers will show
    Buyers location of boundary stakes, septic

    system and water pipes.
      5. Settlement shall take place not later
    than March 31, 1971.
      6. The hereinafter stated offer to sell said
    premises shall be revoked if not accepted by
    Buyers not later than December 18, 1970."

 [***7]

   [*604] Later in the contract is the provision "time being of the essence of this Agreement."

   The sellers also agreed to pay Charles H. Steffey, Inc., in cooperation with Earl Patterson Realty, a brokerage commission of 6% of the total sale price.

   The Kimms are Koreans.  They have been in the United States for a number of years.  In this transaction, they were represented by Mrs. Virginia Lewis, a real estate agent employed by Charles H. Steffey, Inc. Mrs. Lewis had previously sold the Kimms three other properties in a period of four years prior to December 10, 1970.  Mrs. Lewis prepared the first draft of the proposed contract of sale between the Kimms and the Dicuses and presented that draft to Earl Patterson, the listing broker, who was cooperating with Steffey.  Mr. Patterson indicated that he [*605] was not satisfied with the wording of the proposed contract and wished to have an attorney prepare the contract.  Mr. Patterson later stated that Mr. Wagonheim (who has offices in the same building as Mr. Patterson) prepared the draft of the contract which, with certain amendments, was signed by the parties.  The signatures of the Kimms were witnessed by Mrs. Lewis; Mr. [***8] Wagonheim witnessed the signatures of the Dicuses.

   After the contract of December 10, 1970, was signed, Mrs. Lewis arranged for an appointment with the Dicuses to meet at the subject property on January 10, 1971, in order that Mr. Dicus could show the Kimms the boundary stakes, as well as the location of the septic system and the water pipes. When the parties met at the subject property on January 10, the ground was largely covered with snow as a result of a snowfall a few days before.  Mr. Dicus was too ill to walk the boundaries, particularly in the snow.  Mrs. Dicus apparently did not know the location of the boundaries, having never bothered to learn their location.  Mrs. Lewis testified that Mr. Kimm appeared to be upset or angry about the condition of the pipes in the Dicuses' house.  What was said between the Kimms, however, was said in Korean.  Mrs. Kimm testified that her husband was upset only because he [**469] had taken a day off from work and was displeased about the inability of the Dicuses to show him the boundaries of the subject property. n1

n1 The testimony indicated that the showing of the boundaries was important to the Kimms inasmuch as they had experienced some difficulty with the boundaries of the property on which they lived.  In any event, this requirement was made a condition in the contract of December 10, 1970.

[***9]

    Mrs. Lewis testified that, thereafter, on behalf of the Kimms, she made repeated telephone calls to the office of Earl Patterson in an effort to make new arrangements for the Dicuses to show the Kimms the boundary lines, but without success.  The boundary lines were never shown to the Kimms until shortly before the Dicuses executed a deed for the subject property to them on May 4, 1971.

   Mrs. Kimm wanted the Dicuses to consent to certain amendments of the December 10 contract and she and Mrs. [*606] Lewis met in Mr. Wagonheim's office on January 30, 1971.  Mrs. Lewis thought the meeting took place on February 6, 1971, but the precise date of the meeting is immaterial.  Mrs. Kimm at this meeting indicated that she wanted the December 10 contract amended in three particulars, i.e., (1) a reduction in the rate of interest on the purchase money mortgage; (2) a reduction in the required amount of fire insurance; and, (3) a one-month deferment from payment of the $29,500 due at settlement. The Dicuses rejected all of these proposed amendments.  At the January 30 (February 6), 1971, meeting in Mr. Wagonheim's office, Mr. Wagonheim suggested that Mrs. Kimm might wish to invest[***10] her money in the Delaware farm the Dicuses were buying, but Mrs. Kimm stated: "oh no, I want the [subject] property."

   Mrs. Kimm acquiesced in the rejection by the Dicuses of the proposed amendments and began to prepare for settlement by ordering a title search for the subject property in the middle of February, 1971, from the Central Maryland Title Company, Inc., with which William A. Hackney, an attorney, is affiliated.

   On March 1, 1971, Mrs. Lewis and Mr. Patterson met in the office of Mr. Hackney, who, as already indicated, is affiliated with the Central Maryland Title Company, Inc., which was employed by the Kimms to search the title of the subject property. Mr. Hackney's office is in the Steffey Building across the hall from the office of Mrs. Lewis.  It was at this meeting that March 30, 1971, was selected as the date for settlement. Although no written notice of the settlement date was sent to the Kimms either by Patterson, Hackney, or Wagonheim, Mrs. Lewis testified that she told Mrs. Kimm of the proposed settlement date and that Mrs. Kimm agreed to the date, provided the boundary lines were shown to the Kimms prior to that date.

   An arrangement had been made for the[***11] Kimms to meet the Dicuses at the subject property on March 24, 1971, so that the boundaries, septic system, and water pipes could be shown to the Kimms.  On March 24, however, Mr. Patterson telephoned the office of Mrs. Lewis and left a message that [*607] Mr. Dicus was in the hospital with pneumonia.  This message was passed on to the Kimms.

   Mr. Wagonheim testified that on March 27, 1971, Mr. Hackney telephoned him, stating that the Kimms wanted the boundaries shown to them prior to settlement. The boundaries, however, were not shown to the Kimms and, on March 29, 1971, Mr. Hackney left a message at Mr. Wagonheim's office to the effect that the Kimms were not coming to the settlement. Mrs. Lewis and the Kimms apparently believed that the settlement would not take place on March 30 in view of the information given [**470] them that Mr. Dicus was in the hospital with a serious illness.  Unknown to them, however, Mr. Wagonheim had obtained the signatures of Mr. and Mrs. Dicus on a deed for the subject property and also on a letter authorizing Mr. Wagonheim to make the affidavit in regard to consideration on the proposed purchase money mortgage. The signatures on these documents [***12]were obtained by Mr. Patterson at Mr. Wagonheim's request.  Mr. Wagonheim advised Mrs. Dicus not to attend the settlement because, he said, it could "be very ugly at a settlement."

   On March 30, 1971, Mr. Wagonheim and Mr. Patterson appeared at Mr. Hackney's office, expecting the Kimms to settle at that time.  Mr. Dicus was still in the hospital and Mrs. Dicus, taking the Wagonheim advice, did not appear at the settlement. The Kimms also did not appear at the settlement. Mrs. Lewis did not appear until she was notified that Mr. Wagonheim and Mr. Patterson were present and were expecting settlement to take place.  Mrs. Lewis then tried to telephone the Kimms from Mr. Hackney's office, but was unable to reach them.  During the evening of March 30, Mrs. Lewis told Mrs. Kimm what had previously happened.  On March 31, 1971, Mrs. Kimm told Mrs. Lewis that the parties should still settle for the subject property, but that $1,000 should be held in escrow until Mr. Dicus was able to walk the boundaries of the property.  Under this proposal, Mr. Dicus would have three months to walk the boundary lines and settlement could take place on Monday, April 5, 1971.  This proposal was communicated[***13] to Mr. Wagonheim [*608] by Mrs. Lewis on March 31.  Mr. Wagonheim recalled that the proposal was communicated to him on April 1, but he was not sure of the date.  In any event, the same day the proposal was made to him, Mr. Wagonheim relayed it to the Dicuses by telephone.  Mr. Wagonheim, as agent for the Dicuses, made a counterproposal that only $500 be withheld from the settlement and held in escrow; that Mr. Dicus obtain the approval of his physician before trying to walk the boundaries; that the Dicuses be permitted to occupy the subject property free of rent for 30 days; and, that an extension on the settlement for the Delaware property being purchased by the Dicuses be obtained. After Mr. Wagonheim told Mrs. Lewis of this proposal for settlement, she communicated it to the Kimms the same day; and they accepted it on either April 2 or 3, 1971.

   On Friday, April 2, or Monday, April 5, Mrs. Kimm consulted R. Tilghman Brice, III, an attorney practicing in Annapolis, in regard to having the terms of the extension reduced to writing.  Unknown to the Kimms, however, on or about April 3, Mr. Wagonheim learned from Richard Nelson, a realtor, that Michael W. Andrews, the appellee, [***14] was interested in acquiring the subject property. On April 3, Nelson, Patterson, and Wagonheim met in Wagonheim's office.  At this meeting, Wagonheim expressed the opinion that the contract with the Kimms had lapsed by its own terms; but he did not tell either Nelson or Patterson that he, as agent for the Dicuses, had negotiated an extension for the time of settlement with the Kimms.

   The following day, Sunday, April 4, Nelson took Andrews, for the first time, to the subject property to inspect it.  Later, the same day, Andrews signed a contract with the Dicuses for the purchase of the subject property, although this contract was dated April 5, 1971.  Prior to signing the contract, Andrews knew there had been a prior contract for the sale of the subject property and he learned through his agent, Nelson, of Wagonheim's opinion that the prior contract was null and void inasmuch as the purchasers had not attended settlement within the time limit in the prior contract.

   [*609] On Monday, April 5, Mr. Wagonheim notified Mrs. Lewis that "Mrs. Kimm is out." The Kimms, thereafter, on or about April 13, 1971, retained the services of Jerome F. Connell, Sr., an attorney, to represent [***15] [**471]them.  Mr. Connell wrote the Dicuses on behalf of the Kimms, threatening a suit against them for specific performance of the contract of December 10, 1970.  At the time of that letter, the Dicuses terminated the services of Mr. Wagonheim.  On April 9, 10 or 12, 1971, Mr. Andrews learned from his agent, Nelson, that the Kimms intended to enforce their rights under the prior contract of December 10, 1970.  The Kimms recorded their contract among the land records of Anne Arundel County on April 16, 1971.

   On April 28, 1971, Mr. Andrews appeared at the office of the Central Maryland Title Company, Inc., for settlement under his contract of April 5 (4), 1971.  By this time, however, the Dicuses had retained John Demyan, Jr., an attorney, to represent them.  Mr. Demyan, representing the Dicuses, refused to proceed to settlement with Mr. Andrews, stating that the Dicuses were going to settle on the Kimm contract instead.  Mr. Andrews, after settlement with him had been refused, consulted counsel and upon counsel's advice recorded his contract, dated April 5, 1971, among the land records of Anne Arundel County on April 28, 1971.

   On May 4, 1971, the Dicuses, after showing the Kimms[***16] the boundary lines of the subject property, executed a deed for the property in accordance with the terms of the December 10, 1970, contract.  Both the deed and the purchase money mortgage provided for in the Kimm contract (also dated May 4) were recorded on May 6, 1971, among the land records of Anne Arundel County. The Kimms have been in possession of the subject property since May 4, 1971.

   Mr. Andrews filed his bill of complaint against the Kimms and the Dicuses on May 13, 1971, in the Circuit Court for Anne Arundel County, praying that specific performance of his contract dated April 5, 1971, be granted against the Kimms as successors in interest of the Dicuses; that the right, title, and interest of the Kimms in the subject property be impressed with a trust in favor of Andrews; that [*610] the Kimms be enjoined from transferring or encumbering the subject property pendente lite; that a receiver be appointed to take charge of the property, collect the rents, and account to the court; that the purchase money mortgage of May 4, 1971, be declared void and cancelled; that the Kimms surrender possession of the subject property to Andrews; that the court enter a monetary[***17] decree for $75,000 damages against the Dicuses; and that Andrews have other relief.

   The Kimms and Dicuses duly answered the bill of complaint on June 17, 1971. After the taking of substantial testimony, the submission of memoranda by counsel for the respective parties, and the hearing of argument, the chancellor granted the motion of Andrews to strike all evidence with respect to the continuing negotiations between the Kimms and the Dicuses after March 31, 1971, upon the theory that they were within the purview of the Statute of Frauds and that Andrews could avail himself of the protection of that statute.  Later, on September 1, 1972, the chancellor filed a written opinion which, after reciting many of the facts already given, stated:

   "The parties agree that a contract with a 'time of the essence' clause must ordinarily be performed by the date set, or it is no longer viable, Triton Realty Company v. Frieman, 210 Md. 252 (1956). But the defendants say the contract is still 'enforceable,' citing Shoreham v. Randolph Hills, 248 Md. 267 (1967), because the Dicuses had not performed by showing the boundary stakes, etc., and continued to negotiate with the Kimms.  Shoreham[***18] speaks a different doctrine to the Court.  The Court of Appeals cites with approval Professor Corbin at page 274: 'An oral agreement fixing a new date would not be enforceable as a contract; but it may nevertheless prevent the vendor from defending on the ground that payment was not made on time.' This [**472] seems to say that the Dicuses would be under a disability to raise the defense of the Statute of Frauds if the Kimms sued them for specific [*611] performance. The defendants do not show how that disability attaches to Andrews, who contracted knowing only that there had been a prior contract, and that Wagonheim thought it 'dead'.  But without their disability, Andrews can rely on the Statute of Frauds, Vancloostere v. Logan, 36 N.E. 946 (Ill. 1894), Gohlke v. Davis, 279 S.W. (2d) 369 (Tex. Civ. App. 1955), O'Banion v. Paradiso, 393 P. (2d) 682 (Cal. 1964) with respect to any evidence of any agreement for an extension of time for settlement of the Kimm contract, or with respect to any of the Dicuses' conduct, not known to him.

   "The Plaintiff is entitled to specific performance. Counsel may submit a proposed Decree."

   The decree, dated and filed on September[***19] 22, 1972, provides that Andrews is entitled to specific performance of his contract of April 4, 1971 (dated April 5, 1971); that the deed and mortgage of May 4, 1971, are null and void; that a trustee is appointed to act for the Dicuses to execute any necessary papers to effect settlement under the Andrews contract; and that the Kimms are to pay the costs.  From this decree, a timely appeal was perfected to this Court.

   Three questions are presented to us for decision:

   (1) Was the first contract, dated December 10, 1970, for the sale of the subject property a valid and binding agreement on April 4, 1971, when the second contract (dated April 5, 1971) was entered into for the sale of the same property?

   (2) Did the evidence indicate that Andrews was not entitled to protection as a bona fide purchaser for value without notice of the prior equity of the Kimms? 

   (3) Did the Dicuses and the Kimms waive the provision in the contract of December 10, 1970, that time was of the essence and was such a waiver effective against Andrews, the subsequent purchaser?

   We have concluded that all three questions should be answered in the affirmative and that the decree of September 22, 1972, must be[***20] reversed.

   [*612] (1)

   We are of the opinion that the contract of December 10, 1970, for the sale of the subject property was a valid and binding agreement on April 4, 1971, when the second contract (dated April 5, 1971) was entered into for the sale of the same property.

   As the chancellor observed, the parties do not dispute that ordinarily a contract for the sale of land containing a clause that "time is of the essence" must be performed by the date fixed in the contract or the contract is no longer viable.  This general rule is, however, subject to the limitation that such a contract may nevertheless be specifically enforced if the failure to perform within the designated time results from the act or fault of the party against whom specific performance is demanded.  We think our predecessors put it well in Budacz v. Fradkin, 146 Md. 400, 407, 126 A. 220, 222-23 (1924), Judge W. Mitchell Digges stating for the Court:
 
"[W]here the terms of a contract expressly provide that it shall be completely performed and consummated by a certain date named therein, courts of equity are bound to give full force and effect to the terms thereof, unless the failure to perform[***21] by the time designated is caused by the act or default of the party against whom specific performance is asked to be decreed, whether he be vendor or vendee."

   The Court cited with approval the decision of the Supreme Court of the United [**473] States in Cheney v. Libby, 134 U.S. 68, 10 S. Ct. 498, 33 L. Ed. 818 (1890) in which Mr. Justice Harlan, for the Supreme Court, stated:
 
"The parties in this case, in words too distinct to leave room for construction, not only specify the time when each condition is to be performed, but declare that 'time and punctuality are material and essential ingredients' in the contract; and that it must be 'strictly and literally' executed.  However harsh or exacting its terms may be, as to the [*613] appellee, they do not contravene public policy; and, therefore, a refusal of the court to give effect to them, according to the real intention of the parties, is to make a contract for them which they have not chosen to make for themselves.  * * * But there are other principles, founded in justice, that must control the decision of the present case.  Even where time is made material, by express stipulation, the failure of one of the[***22] parties to perform a condition within the particular time limited, will not in every case defeat his right to specific performance, if the condition be subsequently performed, without unreasonable delay, and no circumstances have intervened that would render it unjust or inequitable to give such relief.  The discretion which a court of equity has to grant or refuse specific performance, and which is always exercised with reference to the circumstances of the particular case before it * * * may, and of necessity must often be controlled by the conduct of the party who bases his refusal to perform the contract upon the failure of the other party to strictly comply with its conditions."
134 U.S. at 77-78, 10 S. Ct. at 501-02, 33 L. Ed. at 823.

   It is clear to us from the evidence that, although settlement did not take place by March 31, 1971, as required by Condition No. 5, the Dicuses did not show the Kimms the "location of boundary stakes, septic system and water pipes" as required by Condition No. 4 "prior to settlement" which was originally scheduled for March 30, 1971.  The parties were at the subject property for the purpose of locating the aforementioned items on January 10, [***23] 1971; but Mr. Dicus was too ill, especially with the snow-covered ground, to show the boundaries, and Mrs. Dicus did not know where the boundaries were, never having made an attempt to locate them.  As previously mentioned, after this meeting, Mrs. Lewis on behalf of the Kimms made numerous telephone calls to Mr. Patterson, the agent and realtor of the Dicuses, [*614] to arrange for another appointment at the site of the subject property. These efforts were unavailing.  Mrs. Kimm testified, without contradiction, to an appointment at the site for March 24, 1971.  This, however, was cancelled because Mr. Dicus was hospitalized on that day.  On March 27, 1971, Mr. Hackney, whose title company had been employed by the Kimms to search the title to the subject property, warned Mr. Wagonheim, then attorney for the Dicuses, that the Kimms "wanted to have the boundaries walked off" prior to settlement. The testimony indicates that the Kimms were ready, willing, and even eager to settle for the subject property; but they insisted that the obligation of the Dicuses to show the location of the boundaries, septic tanks and water pipes at the subject property be performed.  They had arranged[***24] for the title examination. They had made arrangements to withdraw the necessary funds from their bank to complete the settlement. The Kimms, who did not tender the purchase price to the Dicuses on or before March 31, 1971, could, under the circumstances, nevertheless be entitled to specific performance of the contract where this failure to perform the condition precedent was caused by the conduct of the Dicuses.  In Shoreham Developers, Inc. v. Randolph Hills, Inc., 248 Md. 267, 275, 235 A. 2d 735, 741 (1967), we considered this principle and cited with approval Professor [**474] Corbin in 2 Corbin on Contracts § 310, at 112 (1950), as follows:
 
"'Where "time was of the essence" -- that is, where performance by the plaintiff within a specified time was a condition precedent to the defendant's duty to perform his part -- if the plaintiff has been caused to delay his performance beyond the specified time by the request or agreement or other conduct of the defendant, the plaintiff can enforce the contract in spite of his delay.  This assumes that the non-performance of the condition was not caused by the plaintiff's own inability to perform, and that but for the defendant's [***25]request, agreement, or other conduct, the plaintiff would have performed the condition.  If the defendant [*615] later repudiates or otherwise breaks the contract, he cannot use the plaintiff's failure to perform on time as a defense.' (Citing Walter v. Victor G. Bloede Co., 94 Md. 80, 50 A. 433 (1901).)"

   It is clear to us that Conditions Nos. 4 and 5 in the contract of December 10, 1970, are mutually dependent and, by their terms, must be read together. Condition No. 4 provides that "Prior to settlement, Sellers will show Buyers location of boundary stakes, septic system and water pipes" and Condition No. 5 provides "Settlement shall take place not later than March 31, 1971." (Emphasis supplied.) In K & G Construction Co. v. Harris, 223 Md. 305, 312, 164 A. 2d 451, 454-55 (1960) Judge Prescott, for the Court, in discussing the law in regard to promises and counter-promises, stated:
 
"Promises and counter-promises made by the respective parties to a contract have certain relations to one another, which determine many of the rights and liabilities of the parties.  Broadly speaking, they are (1) independent of each other, or (2) mutually dependent, [***26] one upon the other.  They are independent of each other if the parties intend that performance by each of them is in no way conditioned upon performance by the other.  5 Page, The Law of Contracts, § 2971.  In other words, the parties exchange promises for promises, not the performance of promises for the performance of promises.  3 Williston, Contracts (Rev. Ed.), § 813, n. 6.  A failure to perform an independent promise does not excuse non-performance on the part of the adversary party, but each is required to perform his promise, and, if one does not perform, he is liable to the adversary party for such non-performance.  . . . Promises are mutually dependent if the parties intend performance by one to be conditioned upon performance by the other, and, if they be mutually dependent, they may be (a) precedent, i.e., a promise that is to be performed before a corresponding promise on the part of the [*616] adversary party is to be performed, (b) subsequent, i.e., a corresponding promise that is not to be performed until the other party to the contract has performed a precedent covenant, or (c) concurrent, i.e., promises that are to[***27] be performed at the same time by each of the parties, who are respectively bound to perform each.  Page, op. cit., §§ 2941, 2951, 2961."

   We later stated in the opinion in K & G Construction:
 
"The modern rule, which seems to be of almost universal application, is that there is a presumption that mutual promises in a contract are dependent and are to be so regarded, whenever possible.  Page, op. cit., § 2946; Restatement, Contracts, § 266.  Cf. Williston, op. cit., § 812."
223 Md. at 313, 164 A. 2d at 455.

   In addition to the language of the contract itself, other evidence indicates that the parties intended Conditions Nos. 4 and 5 to be mutually dependent.  The Kimms knew that the Dicuses were moving to Delaware and would not be in a position after settlement to show the boundary stakes, the septic system, and water pipes. Condition No. 4 was an essential part of the contract [**475] in view of the irregular shape of the subject property which has eight corners and the difficulty the Kimms previously had with the boundary lines of property purchased by them, thus making them insistent on understanding the boundaries of the subject property[***28] prior to settlement. Then too, the parties met on the subject property on January 10, 1971, to fulfill the condition prior to settlement, indicating an intention of the parties that the showing of the boundaries, septic tanks, and water pipes was a condition precedent to the duty of the Kimms to tender the purchase price by March 31, 1971.

   Mr. Andrews earnestly contends that the contract states that "upon failure of any of said terms and conditions, this contract shall become null and void, and all deposit monies shall be promptly returned" and that inasmuch as [*617] settlement did not take place by March 31, 1971, the contract became null and void by its terms.  This contention might have merit if both parties to the contract had done nothing and had merely allowed the settlement date to pass without attempting to perform their respective promises.  See Triton Realty Co. v. Frieman, 210 Md. 252, 123 A. 2d 290 (1956). Under such facts, it would appear that neither party would have breached the contract, but the contract would have become null and void, a rescission would have resulted, and neither party would be entitled to specific performance of the contract.

   In the[***29] present case, however, the evidence establishes that the failure of the Dicuses to show the boundary stakes, the septic system, and the water pipes of the subject property was the only reason why settlement did not take place before March 31, 1971; and the Dicuses knew or should have known that the Kimms were insisting upon compliance with the provisions of Condition No. 4, which was inserted in the contract for their benefit.  In Brewer v. Sowers, 118 Md. 681, 86 A. 228 (1912), our predecessors considered the provision of an option contract to purchase a 60-acre farm in Washington County which provided: "If at the expiration of the time above mentioned the terms as set forth have not been complied with, then this option shall be considered as null and void." The seller deliberately avoided the purchaser to prevent a tender of the money provided for in the option contract.  In affirming a decree granting specific performance, inter alia, to the purchaser, Chief Judge Boyd stated for the Court:
 
"To deny Sowers [the purchaser] relief under such circumstances on the ground that the balance of the purchase money was not actually paid by the time named in the agreement, [***30] would not only be without precedent, but contrary to every principle of justice and equity which are supposed to control Courts of Equity."
118 Md. at 686, 86 A. at 230.
 
See 3A Corbin on Contracts § 761, at 516-22 (1960).

   [*618] Although there is no evidence in the instant case to indicate that the Dicuses deliberately failed to perform Condition No. 4, the effect is the same as if they had deliberately failed to perform.  The Kimms relied upon the Dicuses to perform Condition No. 4 of the contract prior to settlement. When advised that Mr. Dicus was in the hospital, they reasonably concluded that there would be no settlement on March 30, 1971, since he would be unable to show the boundaries until discharged from the hospital and since he would not be present at the settlement to execute the necessary papers.  Neither Mr. Wagonheim nor Mr. Patterson told Mrs. Lewis or the Kimms of the arrangement made to obtain the signature of Mr. Dicus on the deed and on the authorization from him to Mr. Wagonheim to make the affidavit of consideration on the mortgage.  Both Mrs. Lewis and the Kimms reasonably believed that the proposed settlement on March 30, 1971, would[***31] not be held and there was no obligation on the part of the Kimms to tender the purchase money on or before March 31, 1971.  Indeed, the Kimms were not obligated legally to have attended the [**476] proposed settlement on March 30 inasmuch as a condition of the contract of December 10, 1970, had not been fulfilled.  Thus their appearance at the proposed settlement would have been useless.  Indeed, if the Kimms had attended and had completed the proposed settlement on March 30, it would most likely have resulted in a waiver of Condition No. 4 of the December 10 contract.  See Shoreham Developers, Inc. v. Randolph Hills, Inc., supra. As we have indicated, the Kimms had no intention whatever of waiving Condition No. 4; and they never did waive that condition.  In sum, the Kimms were entitled to have the Dicuses specifically perform the contract; and, if they had sued the Dicuses for specific performance, they would most likely have been successful in such a suit.  It is apparent to us that when Andrews entered into the second contract with the Dicuses on April 4 (5), 1971, the contract of December 10, 1970, was a legally effective contract and the Dicuses, as sellers, could not[***32] pass equitable title to Andrews.

   The appellee Andrews relies, inter alia, on our decision in [*619] Triton Realty Co. v. Frieman, supra, and upon a decision by the Supreme Court of Illinois in Horan V. Blowitz, 13 Ill. 2d 126, 148 N.E.2d 445 (1958). In our opinion, this reliance is misplaced inasmuch as in neither case did the purchaser present sufficient evidence of a legal excuse or justification for not proceeding to settlement within the time limits set forth in the respective contracts in those cases.  In Horan, for example, where both the purchaser and the seller failed to fulfill their obligations under the contract within the time set and neither had a justifiable excuse for failing to perform, the Court held that the contract was null and void and each party is prevented from enforcing the contract since, on the stipulated date, the contract expired by its own terms.  In the present case, as we have observed, the Kimms, as purchasers, did have a legal excuse or justification not to settle by March 31, 1971, namely, the failure of the Dicuses to comply with Condition No. 4 prior to the time fixed for settlement.

   At the argument, counsel for Mr. Andrews[***33] called our attention to, and relied upon, the decision of this Court in Hill v. Benevicz, 224 Md. 79, 167 A. 2d 104 (1961). In Hill, however, the purchasers waived the condition precedent upon which they relied to justify their failure to attend settlement and perform their obligations pursuant to the contract of sale in that case.  In the present case, there was no waiver by the Kimms of the requirement that the Dicuses perform Condition No. 4 in the contract of December 10, 1970.

   (2)

   We next consider whether Mr. Andrews was a bona fide purchaser of the subject property without notice of the preexisting contract of December 10, 1970, between the Dicuses and the Kimms.

   There is little doubt that Andrews knew on April 4, 1971, prior to signing the second contract of sale, that the Dicuses had signed a prior contract for the sale of the subject property.

   On Direct examination, Mr. Andrews testified that he had [*620] been told by Mr. Nelson, on or prior to April 4, 1971, that "the people didn't show up at the settlement . . . and the contract was dead." He further stated in reply to questions: "Yes . . . there was a prior contract." There is also no doubt that Mr. Nelson, [***34] Mr. Andrews' agent, at a conference with Mr. Wagonheim prior to April 4, 1971, had heard Mr. Wagonheim express his opinion that the prior contract "lapsed on its own terms.  It no longer had any life in it and the property was available." Mr. Nelson's testimony is interesting in this regard.  According to Mr. Nelson, prior to telephoning Mr. Andrews on Friday, April 2, 1971, Mr. Patterson had told Mr. Nelson:
 
"[T]hat there had been a contract on the property and that to the best of his knowledge, it was voided as the buyers [**477] had not attended settlement and they had not come up with any indication to them of further action in the form of writing, so with this, he wanted to be sure of it, we went on into the same office building which houses both the Patterson Real Estate Company as well as Ira Wagonheim, who was the lawyer for the Dicuses at this particular time, and Mr. Wagonheim indicated also that to the best of his knowledge, this contract was void and that the property was available for sale.

   "Q. Referring to an earlier contract that the Dicuses had apparently had for the sale of this property?  A. Correct."

   Mr. Nelson also stated that he knew that Mr. [***35] Wagonheim was the attorney for the sellers, Dicus and wife.

   In our opinion, the knowledge by Mr. Andrews and by his agent, Nelson, of the existence of the prior contract of sale of the subject property was sufficient to place Andrews on inquiry in regard to the true situation as to whether the prior contract was still in effect.  Andrews was not entitled to rely on an opinion by the attorney for the sellers that the prior contract was "dead." He did not seek any opinion of counsel for himself and made no inquiry of the Dicuses -- although he was in their presence on April 4 -- in regard to [*621]the prior contract. He sought no release from the effect of the prior contract from the Kimms and did not request any indemnification agreement by the Dicuses in regard to the prior contract. If he had made an inquiry, he would most likely have discovered the true facts and would not have signed the second contract and made the $1,000 deposit.

   Judge Smith, for the Court, stated the applicable law in Fertitta v. Bay Shore Development Corp., 266 Md. 59, 72-73, 291 A. 2d 662, 669 (1972), as follows:

   "The applicable law has been most recently summed up for the Court by Judge [***36]Barnes in Williams v. Skyline Dev. Corp., 265 Md. 130, 164-65, 288 A. 2d 333 (1972), a case involving one of the Jenkins corporations which is also involved here.  In determining whether a purchaser had notice of any prior equities or unrecorded interests, so as to preclude him from being entitled to protection as a bona fide purchaser, the rule is that if he had knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry, he will be presumed to have made such inquiry and will be charged with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued.  A purchaser cannot fail to investigate when the propriety of the investigation is naturally suggested by circumstances known to him.  If he neglects to make such inquiry, he will be guilty of bad faith and must suffer from his neglect.  That which is sufficient to excite inquiry is notice of such facts as would lead an ordinarily prudent man to make an examination.  Notice to an attorney is notice to his client."

   Andrews was not entitled to rely upon an opinion of the attorney for the sellers that the prior contract was "dead" and[***37] that the subject property was "available for sale" to Andrews.  The sellers' attorney is likely to be an advocate, and thus not a purely objective source, in support of his [*622]clients' supposed right to sell the property.  See Price v. McDonald, 1 Md. 403, 416 (1851). Then too, Mr. Andrews is not lacking in sophistication in real estate matters, having "bought and sold a number of pieces of real estate in Anne Arundel County" during the 29 years he has been in that county.  In our opinion, Andrews had or was charged with knowledge of the pre-existing equity in the Kimms prior to signing the second contract of sale and making the deposit of $1,000.

   It should be observed that Mr. Andrews knew prior to the proposed settlement under the second contract scheduled for April [**478] 28, 1971, that the Kimms would assert their rights under the first contract and, indeed, new counsel for the Dicuses told Andrews at the time of the proposed settlement that the Dicuses would not settle under the second contract but would carry out their obligations under the first contract of December 10, 1970.  In short, Andrews unquestionably had actual knowledge of the prior equity prior[***38] to any payment of the purchase money (other than the $1,000 deposit) and, indeed, no balance of purchase money was paid.  Even if he had paid that balance, the prior equity would prevail.  Westpark, Inc. v. Seaton Land Co., 225 Md. 433, 171 A. 2d 736 (1961).

   (3)

   We now turn to a consideration of the question of whether there was an effective waiver of the provision in the contract of December 10, 1970, that time was of the essence; and, if so, was it effective against Andrews, as the subsequent purchaser.

   The chancellor, in effect, assumed that the Dicuses could not raise the defense of the Statute of Frauds in this case -- a correct assumption, in our opinion -- but the chancellor concluded that the disability of the Dicuses did not attach to Andrews -- a conclusion we think was clearly in error.

   As a consequence of this error, the chancellor erroneously granted Andrews' motion at the conclusion of the entire case to strike all evidence concerning oral negotiations subsequent to March 31, 1971, between the Dicuses and the Kimms to extend the settlement date.

   [*623] The relevant provisions of Maryland's Statute of Frauds appear in Maryland Code (1957, 1973 Repl. Vol.) [***39] Art. 21, § 2-104 entitled "Executory contracts" and are as follows:

   "No action shall be brought:"

   * * *

   "(d) Upon any contract for the sale or disposition of land or of any interest in or concerning land;"

   * * *
 
"unless the contract or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him lawfully authorized." n2

n2 The new Statute of Frauds was enacted by the General Assembly by the Act of 1971, Ch. 649, § 5.  The provision in regard to the enforcement of certain executory contracts is substantially the same as in the British Statute of Frauds, 29 Charles II, Ch. 3, enacted in 1677.  This British Statute is listed in the Act of 1971.  Ch. 649, § 10 as one of the British Statutes declared as no longer in force in Maryland "except to the extent that any of the British Statutes in force in Maryland on July 4, 1776 [as 29 Charles II, Ch. 3 clearly was] have been enacted by the General Assembly of Maryland, either by this Act or by any other Act or Acts in force on July 1, 1971," the effective date of the Act of 1971, Ch. 649.  (Emphasis supplied.) Inasmuch as substantially the same provisions of the British Statute of Frauds are enacted by the Act of 1971, Ch. 649, it appears that the provisions of that British Statute continue intact in Maryland with all of the Maryland and British cases construing this section of the British Statute of Frauds being persuasive or authoritative, as the case may be.

[***40]

    There is no question that the contract of December 10, 1970, was in writing and signed by the parties to be charged.  That contract, as we have already indicated, was valid and binding and was specifically enforceable by the Kimms, the Dicuses having no election to rescind the December 10 contract, not having performed Condition No. 4 prior to settlement -- a condition precedent to settlement when the contract with Andrews was signed.

   In any event, however, the extension of time negotiated by Mr. Wagonheim on behalf of the Dicuses amounted to a waiver of the "time is of the essence" provision of the [*624] December 10 contract.  This waiver is not required to be in writing even though [**479] the contract itself is subject to the applicable provision of the Statute of Frauds.  Professor Corbin, in 3A Corbin on Contracts § 722, at 380 (1960), states:
 
"Where time is of the essence, meaning that performance on time is a condition of the other party's duty, this condition can be waived by a mere expression of willingness by that other party; an 'extension of time' is such a waiver. <49>"
 
In footnote 49, the learned author states:
 
"Where time of payment[***41] is expressly of the essence, the condition may readily be held to be waived or eliminated if the vendor makes payment on time difficult or if he is himself not ready to convey.  Zempel v. Hughes, 85 N.E. 641, 235 Ill. 424 (1908).
 
"The 'waiver' does not have to be in writing, even though the contract is within the statute of frauds and is in writing.  * * * An oral agreement fixing a new date for performance would not be enforceable as a contract; but it may nevertheless prevent the vendor from defending on the ground that payment was not on time.  The discussion in Garbis v. Weistock, 51 A. 2d 154, 187 Md. 549 (1947), is somewhat confused; but the decision is sustainable if the trial court found that the defendant had never in fact 'waived' the condition." n3

n3 We have carefully considered the opinion of our predecessors in Garbis v. Weistock, 187 Md. 549, 51 A. 2d 154 (1947) referred to in footnote 49 by Professor Corbin.  It is clear to us that the dicta in the case that Professor Corbin finds to be "somewhat confused" must be read in connection with the holding that the chancellor in that case was not clearly in error in determining that the evidence failed to establish a waiver of the time element in the contract.  See 187 Md. at 559, 51 A. 2d at 158.

[***42]

   The Kimms alleged in their answer to the bill of complaint that, at the time the Andrews contract was entered into, the prior contract of December 10, 1970, was in effect and the Kimms "were ready, willing and able to settle under the [*625]terms of the existing Contract." This allegation was amply supported by the proof.  The Kimms had arranged well in advance of March 31, 1971, to have the title to the subject property examined and they had arranged to withdraw from their bank the funds necessary to complete the settlement on March 30, 1971, if there had been compliance by the Dicuses with Condition No. 4.  We think these allegations and facts bring the present case well within our decision in Evelyn v. Raven Realty, Inc., 215 Md. 467, 138 A. 2d 898 (1958).

   In Evelyn, Judge Horney, for the Court, stated:
 
"When a seller has promised to convey land on the express condition that payment of the purchase price must be made on or before a specified date, payment on time is the condition which a buyer must perform.  But, if the seller merely states to the buyer that he does not insist on timely payment, he thereby eliminates the condition, and such statement constitutes[***43] a 'waiver'. Being the seller's voluntary action, it is not necessary for the buyer to give any consideration for the waiver, or that the buyer change his position, in reliance thereon, in order for the waiver to be legally effective. If, however, the seller foresees or should have foreseen that the buyer would materially change his position in reliance on the waiver, and the buyer does so, then the seller is 'estopped'.  The seller's action is still a 'waiver', but the resulting action in reliance thereon by the buyer creates the 'estoppel'.  Thus, 'waiver' consists of the voluntary action of the seller alone, while an 'estoppel' requires the action of both the seller and the buyer."
215 Md. at 472, 138 A. 2d at 900.

   The court later stated that the bill of complaint for specific performance instituted by the buyer should have been dismissed because the buyer had neither alleged [**480] nor proved that he was ready, willing and able to perform within the time limit in the contract.  As we have noted, there were [*626] sufficient allegations and proof of that element in the instant case.

   The evidence also indicates that Mrs. Lewis, acting on behalf of the Kimms, proposed[***44] to Mr. Wagonheim, attorney for the Dicuses, on March 31, 1971 (April 1, 1971, to Mr. Wagonheim's best recollection), that settlement with the Dicuses would be held on Monday, April 5, 1971, if the Dicuses would agree that $1,000 be held in escrow at the settlement to insure that Mr. Dicus would show the boundaries of the subject property to the Kimms within three months. Mr. Wagonheim communicated this proposed arrangement to the Dicuses and thereafter submitted a counterproposal, the terms of which are mentioned earlier in the opinion.  This counterproposal was accepted by the Kimms on April 2 or 3; and Mrs. Lewis communicated this acceptance to Mr. Wagonheim on Saturday, April 3, 1971, who said "fine."

   Mr. Wagonheim testified that he did not have actual authority to bind the Dicuses to this arrangement which he made on their behalf.  In our opinion, however, he had apparent authority to do this, the Dicuses having held him out as having such authority.  See Hobdey v. Wilkinson, 201 Md. 517, 94 A. 2d 625 (1953); Restatement (Second) of Agency § 8 (1957).

   It is clear that the Dicuses continued to recognize the contract of December 10, 1970, as mutually valid and operative[***45] subsequent to March 31, 1971; and, indeed, they actually settled under that contract on May 4, 1971.

   In 3A Corbin on Contracts § 754, at 489 (1960), it is stated:
 
"Even though the contract expressly declares that nonpayment on time shall automatically terminate all rights of the obligor . . . such a provision will not be enforced if the creditor has in any way contributed to the default or has in any way indicated that he will not insist upon the forfeiture."
 
And at 491:

   "In any case, the continued recognition of the [*627] contract as mutually valid and operative will prevent the obligee from asserting the obligor's existing default as a complete discharge of his own obligation. <10>"
 
In footnote 10, Professor Corbin states:
 
"Recognition of the continuance of the contract and a waiver of the condition of payment on time are evidenced by the creditor's continuing to demand payment, by silence in the face of a request for an extension, by negotiating for a repurchase or other settlement, and in many other ways." (Emphasis supplied.)
 
See Shoreham Developers, Inc. v. Randolph Hills, Inc., 248 Md. 267, 235 A. 2d 735 (1967),[***46] supra; Lissau v. Smith, 215 Md. 538, 138 A. 2d 381 (1958). See also Warner Co. v. MacMullen, 381 Pa. 22, 112 A. 2d 74 (1955); DeMatteo Construction Co. v. Daggett, 341 Mass. 252, 168 N.E.2d 276 (1960).

   In our opinion, Andrews, who is in privity with the Dicuses and who is not a bona fide purchaser without notice, cannot assert the Statute of Frauds against the Kimms in this case in regard to the waiver of the "time is of the essence" provision inasmuch as the Dicuses, themselves, could not assert it.

   The rights of Andrews, if any, are, at the most, derivative from those of the Dicuses; and, as we have seen, they had no right to assert the Statute of Frauds against the Kimms in regard to the oral waiver of the "time is of the essence" provision of the contract of December 10.  Hence, Andrews likewise has no right to assert the statute against the Kimms, claiming as he does under and through the Dicuses.

   [**481] The chancellor in reaching a contrary conclusion relied upon the cases of VanCloostere v. Logan, 149 Ill. 588, 36 N. E. 946 (1894); Gohlke v. Davis, 279 S.W.2d 369 (Tex. Civ. App. 1955) and O'Banion v. Paradiso 39 Cal. Rptr. 370, 393 P. 2d 682 (1964).[***47] In our opinion, these cases are distinguishable from the present case since, in each of the [*628] cases, the first contract was unenforceable as violative of the Statute of Frauds.  In the instant case, the first contract was fully enforceable and, indeed, the parties to that contract actually performed under it by going to settlement on May 4, 1971.

   Decree of September 22, 1972, reversed and the case is remanded to the lower court for the entry of a decree dismissing the bill of complaint, with prejudice, and requiring the plaintiff, Michael W. Andrews (appellee in this Court) to pay the costs; the costs in this Court also to be paid by the appellee . 

BOARD OF EXAMINERS OF LANDSCAPE ARCHITECTS v. McWILLIAMS;BOARD OF EXAMINERS OF LANDSCAPE ARCHITECTS v. ZUCKERMAN 
Nos. 101, 135, September Term, 1973
 
Court of Appeals of Maryland
 
270 Md. 383; 311 A.2d 792; 1973 Md. LEXIS 694

 November  29, 1973, Decided

   PRIOR HISTORY: [***1]  
In No. 101, appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

   In No. 135, appeal from the Circuit Court for Montgomery County; Moorman, J.

DISPOSITION: Orders affirmed; appellant to pay the costs.

CORE TERMS:  board of review, right of appeal, Administrative Procedure Act, standing to appeal, landscape architecture, quasi-judicial, enlargement, enlarge, desired, instrumentality, aggrieved

COUNSEL: Earl G. Schaffer, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Richard C. Rice, Assistant Attorney General, on the brief, for appellant.

   Jonathan A. Azrael, with whom were Azrael & Gann on the brief, for appellees. 

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

OPINIONBY: SMITH

OPINION: [*384] [**793] This case is highly unusual in that we are treated to the spectacle of a charge by one State agency that another State agency is arbitrarily abusing its power, rather than the usual complaint of a citizen that a State agency is guilty of arbitrary and capricious conduct.  We shall affirm the separate decisions of two trial judges who held that appellant, Maryland Board of Examiners of Landscape Architects (the Board of Landscape Architects), did not have standing to appeal from a decision of the board of review of the Department of Natural Resources.

   John E. McWilliams and Morris C. Zuckerman, appellees here, each applied to the Board of Landscape Architects under Code (1957, 1972 Repl. Vol.) Art. 56, § 275 (a) for a license "to practice landscape architecture." They requested that board to "waive the examination requirements and accept in lieu thereof satisfactory evidence that [each] applicant [was] professionally competent to practice landscape architecture," claiming that each had "at least four years experience in the practice of landscape [*385] architecture prior[***3] to submitting the application." The statute authorized such waiver in the event Messrs. McWilliams and Zuckerman were able to substantiate their claims.  The Board of Landscape Architects ruled that neither individual had the requisite experience.  Each applicant then appealed to the board of review of the Department of Natural Resources (the Board of Review) created by Chapter 154 of the Acts of 1969.  The Board of Landscape Architects is a part of the Department of Natural Resources.

   Provision for appeal to the Board of Review is found in Code (1957, 1971 Repl. Vol.) Art. 41, § 237.  It states that "[t]he decision of the board [of review] shall be the final agency decision for purposes of judicial review of § 255 of [that] article or for purposes of any other provisions of law permitting appeals to the courts from decisions of agencies included within the Department of Natural Resources." It further provides that appeals from decisions of the Board of Review should be "as prescribed in the Administrative Procedure Act or by the substantive law applying to the commission, department, board or other instrumentality whose decision is being appealed." Section 255 is a part of [***4]the latter act.  No provision for appeal is made in the law applicable to the Board of Landscape Architects.  Therefore, in this instance the right of appeal is limited by the provisions for appeal in the Administrative Procedure Act.

   The Board of Review reversed the action of the Board of Landscape Architects pertaining to both men.  Appeals were then filed by the latter board to the Circuit Court for Montgomery County and the [**794] Circuit Court for Anne Arundel County.  In each instance a demurrer to the petition for appeal was sustained on the ground that the Board of Landscape Architects was without standing to appeal, citing Md. Pharmacy Board v. Peco, 234 Md. 200, 198 A. 2d 273 (1964).

   In Peco the Board of Pharmacy denied an application for a permit to establish a pharmacy.  The circuit court reversed.  That board appealed to us.  Judge Henderson pointed out for the Court in Peco that the right of review granted in § 255 [*386] (a) is to "[a]ny party aggrieved by a final decision in a contested case . . . ." The Court held the Board of Pharmacy was not an "aggrieved party" within the meaning of § 256 applicable to appeals to us from adverse decisions [***5]of the circuit courts and, therefore, had no standing to appeal. Consequently, the appeal was dismissed.  The Court said there:

   "The Board's function in acting upon an application for permit under the statute is quasi-judicial and not adversary.  It is only a party in the circuit court for the purpose of producing the record (cf. sec. 255 (d) and Maryland Rule B7), or notifying the parties 'to the proceeding before it.' (Sec. 254 and Rule B2 d) Under sec. 255 (b) the trial court may 'permit other interested persons to intervene.' In Zoning Appeals Board v. McKinney, 174 Md. 551, 564, it was said: 'Since therefore the Board [of Zoning Appeals] is not a party to this proceeding, has no interest in it different from that which any judicial or quasi-judicial agency would have, which is to decide the cases coming before it fairly and impartially, [it] is in no sense aggrieved by the decision of the Baltimore City Court, . . . .' See also Mayor & C. C. of Balto. v. Shapiro, 187 Md. 623 and Roeder v. Brown, 192 Md. 639. It may also be noted that the same phrase is used in sec. 255 (a) and in that context it could not apply to the Board, for the Board could hardly[***6] be 'aggrieved' by its own decision. Moreover the Legislature, in using the phrase, presumably was well aware of its interpretation by this Court in the cases cited.  Had the Legislature desired to enlarge the right of appeal it could easily have done so." Id. at 202-03.

   Peco is controlling here.  The holding in Peco is in accordance with the rule elsewhere.  See 4 Am. Jur. 2d Appeal and Error § 234 (1962), and 4 C.J.S. Appeal and Error § 205, at 608 (1957), both citing Zoning Appeals Board v. McKinney, 174 Md. 551, 199 A. 540, 117 A.L.R. 207 (1938); [*387] In Re Estate of Webb, 269 A. 2d 413 (Del. Ch. 1970), aff'd 276 A. 2d 457 (Del. 1971); and Annot., Appeal By Public Officer or Board 117 A.L.R. 216 (1938).

   We have continued this line of reasoning.  See, e.g., Real Estate Comm'n v. Tyler, 268 Md. 641, 642, 303 A. 2d 778 (1973); Insurance Comm'r v. Allstate Ins. , 268 Md. 428, 444, 302 A. 2d 200 (1973); Board of Zoning Appeals v. Guns, 259 Md. 368, 269 A. 2d 833 (1970); Subsequent Injury Fund v. Pack, 250 Md. 306, 310, 242 A. 2d 506 (1968); and Liquor License Board v. Leone, 249 Md. 263, 239 A. 2d 82 (1968). The[***7] General Assembly is presumed to be acquainted with our decisions and to have acted accordingly.  Director v. Cash, 269 Md. 331, 345, 305 A. 2d 833 (1973); Perdue Foods v. State Department of Assessments and Taxation, 264 Md. 672, 689, 288 A. 2d 170 (1972); Macke Co. v. State Department of Assessments and Taxation, 264 Md. 121, 132-33, 285 A. 2d 593 (1972); Stack v. Marney, 252 Md. 43, 49, 248 A. 2d 880 (1969); Giant Food, et al. v. Gooch, 245 Md. 160, 165, 225 A. 2d 431 (1967); and St. Joseph Hospital v. Quinn, 241 Md. 371, 379, 216 A. 2d 732, 25 A.L.R.3d 849 (1966). Cf. Allers v. Tittsworth, 269 Md. 677, 309 A. 2d 476 (1973). As Judge Henderson said in Peco, "[h]ad the Legislature desired to enlarge the right of appeal it could easily have done so." As a matter of fact, by Chapter 449 of the Acts of 1972 the General Assembly added § 256A to Art. 41 providing that for purposes [**795] of the Administrative Procedure Act "the political subdivisions of this State and their agencies and instrumentalities have the status of an interested person, petitioner, or party, as the case may be, in all matters including appeals." This constituted an enlargement[***8] of the right of appeal, but not an enlargement of sufficient scope to grant the right of appeal here.  Therefore, we must affirm the orders of the trial courts.

   Orders affirmed; appellant to pay the costs. 

THE UNION LABOR LIFE INSURANCE COMPANY v. PARMELY 
No. 77, September Term, 1973
 
Court of Appeals of Maryland
 
270 Md. 146; 311 A.2d 24; 1973 Md. LEXIS 670

 October  31, 1973, Decided

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

DISPOSITION: Judgment affirmed; appellant to pay costs. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Defendant insurer sought review of an order from the Circuit Court for Anne Arundel County (Maryland) granting plaintiff widow's motion for summary judgment in an action to recover benefits under her late husband's life insurance policies.

OVERVIEW:  Plaintiff widow filed an action against defendant insurer claiming to be the beneficiary under two group life insurance policies in which her late husband was enrolled as a member at the time of his death. The trial court granted the plaintiff's motion for summary judgment. On appeal, the defendant contended that it was fully discharged from liability because it paid the benefits to another "widow" of the husband upon her production of a marriage certificate. The court affirmed the trial court's judgment, finding that had the other "widow" been designated by name in the policies, defendant would have been discharged upon making payment to her, unless it had prior notice of the plaintiff's claim. Since the other widow had not been validly married to the late husband, she was not his "widow" under the policies. Hence, payment to her did not discharge the defendant from its obligations to the plaintiff.

OUTCOME:  The order granting plaintiff widow's motion for summary judgment in her action against defendant insurer to recover the benefits under her late husband's life insurance policies was affirmed because the defendant was not discharged from its obligation to the plaintiff simply because it made payments to another "widow" whose marriage to the deceased was not valid.

CORE TERMS:  beneficiary, marriage, designated, insurer, widow, certification, estoppel, divorced, adjudged, discharged, insane, insurance policy, group life insurance, accidental death, summary judgment, silence, founded, surviving, enrolled, married, silent, died

 CORE CONCEPTS -  

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Insurance Law: Contracts & Claims: Waiver & Estoppel
Where estoppel is founded upon silence, it cannot be invoked against a person who has no knowledge of the facts.

COUNSEL: William H. Hicks, with whom were Niles, Barton & Wilmer on the brief, for appellant.

   Abel J. [***2]  Merrill, with whom were Merrill & Lilly, P.A. on the brief, for appellee.

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

OPINIONBY: LEVINE

OPINION: [*146] [**24] This appeal is taken from a summary judgment granted [*147] by the Circuit Court for Anne Arundel County (Melvin, J.) in favor of appellee.  The dispute arises from an action at law brought by appellee (Francina), who claims to be the beneficiary under two group life insurance policies in which Clyde Parmely (Clyde) was enrolled as a member at the time of his death on September 24, 1972.  Both sides filed motions for summary judgment, and clearly there is no genuine issue of material fact.

   Francina and Clyde were married in the City of Baltimore on February 18, 1946.  Apparently, Clyde took seriously the notion that "in married life three is company and [**25] two is none"; n1 in 1966, he also entered into a ceremonial marriage with one Dorothy Pearsall (Dorothy) in the City of Baltimore.  Much to the chagrin of appellant, neither Clyde nor Francina ever took any steps to dissolve their marriage. For all we know -- since the [***3]record is silent in this regard -- neither Francina nor Dorothy knew of Clyde's marriage to the other.

n1 Oscar Wilde, The Importance of Being Earnest (1895), 1.

   On September 24, 1972, Clyde died of accidental gunshot wounds which were not self-inflicted.  Prior to that date, although the record does not indicate when, he became enrolled in a group life insurance policy and a group accidental death policy which had been issued by appellant to the Construction Workers' Trust Fund.  Since Clyde did not designate a beneficiary, under the terms of each policy the eligible beneficiary was his "widow." n2 Neither policy undertakes to define the term "widow."

 n2 ". . . If there is no Beneficiary designated by the Insured or surviving at the death of the Insured, payment will be made in a single sum to the first surviving class of the following classes of successive preference Beneficiaries: The Insured's (a) widow.  . . ." (emphasis added).

[***4]

   Following Clyde's death, on November 1, 1972, appellant received from Dorothy a sworn statement of claim alleging that she was the wife and nearest relative of Clyde, together with a certification of their marriage and proof of his death.  Thereafter, appellant employed a private investigator who merely confirmed the circumstances of Clyde's death.  On November 13, 1972, appellant paid to Dorothy the sum of [*148] $4,750 for life insurance benefits; and on December 6, 1972, a like sum for accidental death benefits.  That appellant did so in good faith and without knowledge of Francina's existence is not challenged by her.

   During the week of December 25, 1972, the "Life Claims Division" of appellant received notification by telephone from Francina's attorney that she was claiming the policy benefits.  This was the first information received by appellant that Francina existed; it was followed by a letter dated January 2, 1973.  The letter was accompanied by a copy of the first marriage license, the certification of which was dated September 26, 1972.

   In this Court, appellant makes two arguments:

   (1) That it was fully discharged from liability under the policies by making payment[***5] to Dorothy; and

   (2) that since Francina requested certification of her marriage on September 26, 1972, only two days after Clyde's death, she is barred by estoppel because she did not make her claim until three months later.  We find no merit in either contention, and accordingly shall affirm the judgment of the circuit court for the following reasons.

   (1)

   Appellant relies principally on two cases, Weed v. Equitable Life Assurance Society of U.S., 288 F. 2d 463 (5th Cir. 1961), cert. denied, 368 U.S. 821, 82 S. Ct. 40, 7 L.Ed.2d 27 (1961) and Avondale v. Sovereign Camp W.O.W., 134 Neb. 717, 279 N. W. 355 (1938), for its contention that it was effectively discharged upon making payment to Dorothy.  Avondale involved a policy issued by a fraternal benefit society to one Frank Avondale.  His designated beneficiary was "Edna Theodora Avondale, wife." Following his death, the insurer paid the policy benefits to Edna.  It developed that their marriage was not valid as Frank had not been divorced from his prior wife.  The latter brought suit against the insurer, but the court denied recovery.

   In Weed, supra, the insurer issued policies in 1947 and 1948 to George Stevens[***6] who designated as beneficiary his [*149] "wife, Louella H. Stevens." In 1951, he was adjudged insane and in 1952, he was adjudged sane. At that time, he effected a [**26] change of beneficiaries by naming his wife, Louella, as the primary beneficiary and their two children as contingent beneficiaries. In 1953, he was again adjudged insane; Louella divorced him in 1954, and he died in 1955.  Equitable then paid the policy benefits to Louella, the divorced wife.  In 1957, George's will, executed in 1952, was set aside on the ground that he lacked testamentary capacity.  Four years after paying the proceeds, Equitable was sued by the two children, who were by then adults. Citing Avondale, supra, and other cases, the court affirmed the judgment for Equitable, stating that:

   "Payment in good faith to the beneficiary of record by the insurance company without knowledge of facts vitiating the claim will prevent a second recovery by another claimant.  (citations omitted)." 288 F. 2d at 464.

   Although appellant has seized upon these two cases as support for its contention here, we think they are materially different from the one at bar. Here, no beneficiary was designated[***7] by name, whereas in each of the cases cited above the insurer paid the policy proceeds to the person specifically designated by name.  In the case at bar, the insurer was required to pay to the widow, but did not do so.  A number of other cases involving factual situations similar to those in Avondale and Weed, supra, are collected in 2 Appleman, Insurance Law and Practice, § 803 (1966); see Meinhardt v. Meinhardt, 117 Md. 426, 83 A. 715 (1912).

   The parties have not presented us with, nor have we found, a case presenting facts similar to those in the case at bar coupled with an insurance policy in which the beneficiary is designated by class rather than by name.  Lacking case authority to support its position, appellant relies upon Maryland Code (1957, 1972 Repl. Vol.) Art. 48A, § 381, for a discharge from its insurance policies:

   "Whenever the proceeds of or payments under a [*150] life . . . insurance policy . . . become payable in accordance with the terms of such policy . . . and the insurer makes payment thereof in accordance with the terms of the policy . . ., the person then designated in the policy . . . as being entitled thereto shall be entitled[***8] to receive such proceeds or payments and to give full acquittance therefor, and such payments shall fully discharge the insurer from all claims under the policy . . . unless, before payment is made, the insurer has received at its home office written by or on behalf of some other person that such other person claims to be entitled to such payment or some interest in the policy or contract." (emphasis added).

   As the trial judge observed, it appears as though "the statute meets itself coming around the corner." In any event, the short answer to this argument is that Dorothy was not a "person . . . designated in the policy." The statute is nothing more than an attempted codification of the rule applied in the cases cited earlier.  As we have already intimated, had Dorothy been designated by name in the policies, appellant would have been discharged upon making payment to her, unless it had received prior notice of Francina's claim.  In other words, since Dorothy had not been validly married to Clyde, she was not his "widow" under the policies.  Hence, payment to her did not discharge appellant from its obligations.  On the other hand, Francina, as the "widow," is entitled to payment. [***9]

    (2)

   The estoppel argument advanced by appellant is bottomed on the fragile theory that since Francina's marriage certification was dated September 26 -- two days after Clyde's death -- she then knew of the policy but failed to present her claim for three months.  Appellant maintains that she is therefore estopped from making her claim at such a late date because Dorothy had been paid by then.

   [**27] This tenuous argument overlooks two simple points.  First, [*151]it does not follow that Francina knew of the policies on September 26 merely because she obtained a marriage certification on that date.  Myriad reasons for ordering that document may have existed.  Secondly, as we have already noted, the record is silent on whether Francina even knew of Dorothy's existence much less her purported marriage to Clyde.  Where estoppel is founded upon silence, it cannot be invoked against a person who has no knowledge of the facts, Rockville Fuel v. Gaithersburg, 266 Md. 117, 135, 291 A. 2d 672 (1972); see Mason v. Dulaney, 144 Md. 108, 124 A. 390 (1923).[***10]

   For these reasons, the summary judgment was properly granted.

   Judgment affirmed; appellant to pay costs. 

SIGMA DELTA CHI et al. v. SPEAKER, MARYLAND HOUSE OFDELEGATES et al. 
No. 20, September Term, 1973
 
Court of Appeals of Maryland
 
270 Md. 1; 310 A.2d 156; 1973 Md. LEXIS 659; 1 Media L. Rep.2375

 October  11, 1973, Decided

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

DISPOSITION: Order affirmed; appellants to pay costs.

CORE TERMS:  First Amendment, reporter, tape, recording, session, recorder, gathering, Fourteenth Amendment, gather, publish, decorum, floor, reporting, prior restraint, right to pursue, profession, permission, chamber, accuracy, speed, Legislative Rules Excluding Recording Devices, Constitutional Law, ban, television, newspaper, radio, process of law, free press, enunciated, impairment 

COUNSEL: Submitted by Hilary D. Caplan for appellants.

   Submitted by Francis B. Burch, Attorney General, and Jon F. Oster, Assistant Attorney General, for appellees.

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

OPINIONBY: LEVINE

OPINION: [*2] [**156] This appeal rises out of an action brought against the President of the Maryland Senate and the Speaker of the House of Delegates, for a prohibitory injunction enjoining them from preventing attendance at the sessions of their[***3] respective houses by news reporters in the possession of tape-recording [**157] devices.  We are called upon to decide the constitutionality of certain legislative rules dealing with "order and decorum" in both chambers. n1

 n1 "Rules of the Senate of Maryland

   "THE PRESIDENT

   "5. Order and Decorum. (a) The President shall preserve order and decorum during the sessions of the Senate.

   "(b) He shall have general supervision over the Senate Chamber, and over the rooms, balconies, corridors and lobbies adjacent thereto; and he may control admission to, behavior, and presence in those places.  In case of any disturbance or disorderly conduct therein, he (or if the Senate is in Committee of the Whole, the Chairman thereof) shall have the power to order any such place be cleared.

   "(c) Cameras, recording instruments, and similar equipment or electronic devices are not permitted in the Senate Chamber without the permission of the President.  If such permission is given, the President shall immediately notify the Senators." (emphasis added).

   "88. . . . No person shall be admitted to the floor of the Senate while it is in session, except the following: . . . one reporter for each of the daily newspapers published in the State, a reasonable number of other accredited correspondents as determined by the President, a reasonable number of representatives of radio and television broadcasting stations (together with necessary equipment) as determined by the President, and stenographers admitted by the President to take down debates.  . . . A motion to suspend this rule must be submitted in writing to the Senate at least one day prior to the time of its consideration."

   "Rules of the House of Delegates of Maryland

   "5. Order and Decorum. (a) The Speaker shall preserve order and decorum during the sessions of the House.

   "(b) He shall have general supervision over the House Chamber, and over the rooms, corridors and lobbies adjacent thereto, and he may control admission to, behavior, and presence in those places.  In case of any disturbance or disorderly conduct therein, he (or if the House is in Committee of the Whole, the Chairman thereof) shall have the power to order any such place to be cleared."

   "88. Privilege of Floor. No person, other than members of the House, shall be admitted to the floor of the House while it is in session, except the following: the Governor of Maryland, Judges of the Court of Appeals, former Governors, members of the Senate of Maryland, former members of the House of Delegates, and such other persons as designated by the Speaker.  . . . A motion to suspend this rule must be submitted in writing to the House at least one day prior to the time of its consideration."

[***4]

   [*3] Appellants, other than Sigma Delta Chi, a national journalism fraternity, allege that they are engaged in "reporting news to the public by various means," including newspaper, radio and television. They further allege that "speed and accuracy are essential attributes of media news services," without which they suffer competitively.  Tape recorders, they say, will "insure speed and accuracy in the reporting of news." The chancellor sustained, without leave to amend, a demurrer to the bill of complaint.  This appeal follows from that ruling. n2

n2 Appellants' attack rests on a claim of facial unconstitutionality of the legislative rules.  Thus, House Rule 5, which, unlike its Senatorial counterpart, does not explicitly prohibit recording devices, would appear invulnerable to the same challenge.  But, since it may be inferred that the House Rule is nevertheless being invoked to bar tape recorders from House sessions, we approach the constitutional issues as though applicable to each body.

   Three specific[***5] constitutional claims are advanced by appellants:

   (1) That the legislative action violates freedom of the press guaranteed by the First Amendment of the Federal Constitution and Art. 40 of the Declaration of Rights of the Maryland Constitution; n3

   (2) that their rights under the Due Process Clause of the Fourteenth Amendment of the United States [*4] Constitution and Art. 23 of the Declaration of Rights are being violated; and

   (3) that the action of appellees violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

n3 "That the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege."

   [**158] Appellees counter these arguments by urging that the doctrine of separation of powers, provided for in the State Constitution, precludes judicial inquiry into these legislative rules.  We find it unnecessary[***6] to reach this issue, since, for reasons that follow, we are of the view that the rules do not violate appellants' First and Fourteenth Amendment rights.

   I

   We consider first whether the prohibition against tape recorders on the floor of the General Assembly violates the "free press" rights of appellants.  This Court has recognized the interplay between the First Amendment and Art. 40 of the Declaration of Rights.  We have said that the legal effect of the guarantee of freedom of speech and press ordained in Art. 40 is substantially the same as that enunciated in the First Amendment. With this in mind, we have treated Art. 40 as being in pari materia with the First Amendment, Freedman v. State, 233 Md. 498, 505, 197 A. 2d 232 (1964), rev'd on other grounds, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). Hence, freedom of the press, as thus guaranteed, has been zealously safeguarded in Maryland, Greenbelt Coop. Pub. Ass'n v. Bresler, 253 Md. 324, 252 A. 2d 755 (1969), rev'd on other grounds, 398 U.S. 6, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970); Prucha v. Weiss, 233 Md. 479, 197 A. 2d 253 (1964), cert. denied, 377 U.S. 992, 84 S. Ct. 1916, 12 L. Ed. 2d[***7] 1045 (1964); Negley v. Farrow, 60 Md. 158, 45 Am. R. 715 (1883); and has been held to preclude the state from adopting any form of prior restraint upon printed publications or their circulation, Sports Daily v. Public Service Comm., 179 Md. 355, 361, 18 A. 2d 210 (1941). These rights, of course, encompass radio and television stations within their ambit, Baltimore v. A. S. Abell Co., 218 Md. 273, 145 A. 2d 111 (1958).

   [*5] We are confronted here with a problem that differs from the traditional concept of "prior restraint." No restriction upon "freedom of expression" is asserted, Kingsley Books, Inc., v. Brown, 354 U.S. 436, 444, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1957); nor upon the right to print, publish, disseminate, circulate and distribute information or matters that have been printed, Trimble v. Johnston, 173 F. Supp. 651, 655 (D.D.C. 1959). The precise contention made by appellants is that the prohibition against tape recorders on the floor of the General Assembly operates as an impairment of their "right to gather information," a right which they maintain is embodied within the First Amendment guarantee of free press.

   Federal and state courts have[***8] not firmly resolved the issue whether the gathering of information by the press enjoys First Amendment protection. While the Supreme Court has yet to flatly decide the question, see Note, The Right of the Press to Gather Information, 71 Colum. L. Rev. 838, 845 (1971), dicta in two of its more recent decisions suggest that the gathering of news is embraced within First Amendment protection.

   In Zemel v. Rusk, 381 U.S. 1, 17, 85 S. Ct. 1271, 14 L. Ed. 2d 179 (1965), Chief Justice Warren, for the Court, stated: "The right to speak and publish does not carry with it the unrestrained right to gather information," 381 U.S. at 17 (emphasis added).  More recently, in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), the Court held that the First Amendment does not immunize news reporters from the requirement of disclosing confidential information to grand juries.  Although the Court was not called upon to decide the issue, the following dicta strongly intimate its recognition that news gathering is constitutionally protected:

   "Finally, as we have earlier indicated, news gathering is not without its First Amendment protection[.]" 92[***9] S. Ct. at 2669.
 
[**159] "Nor is it suggested that news gathering does not qualify for First Amendment protection; . . . ." 92 S. Ct. at 2656.

   [*6] "A corollary of the right to publish must be the right to gather news.  . . ." 92 S. Ct. at 2672.
  
". . . Accordingly, a right to gather news, of some dimensions, must exist.  . . ." (citations omitted).  92 S. Ct. at 2673.

   Proceeding from the premise that news gathering is indeed protected, the Court held that the refusal to confer a confidential privilege upon news reporters did not result in a prior restraint on news gathering. We think the analogy applies to this case.  We too shall assume that the right to gather news is protected by the First Amendment. Our inquiry, therefore, is narrowed to the specific question of whether the ban on tape recorders constitutes a restraint on the reporters' rights to freedom of the press.  We think it does not.

   It is not contended by appellants that they are denied admission to proceedings of the General Assembly.  Nor is it alleged that these rules prevent them from gathering information or obtaining legislative documents; or from interviewing members of the legislature; [***10] or from prompt access to the telephone or other means of communication.  Indeed, the rules do not appear to prevent the use of tape recorders anywhere in the State House except in the Senate and House Chambers; and even there, they may be allowed by permission of the President and Speaker, respectively.

   In these circumstances, we perceive no curtailment of appellants' right to gather news.  They merely claim that the use of tape recorders in each chamber will promote greater accuracy and speed in reporting. We are unwilling to include those purposes, however worthwhile they may be, within a constitutionally protected right to gather news.  Thus, the exclusion of recording devices from the legislative sessions constitutes no abridgement of First Amendment rights.  As Chief Justice Burger stated for the Court in Branzburg, supra:
 
". . . [T]his case involves no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or [*7]implied command that the press publish what it prefers to withhold.  . . ." 92 S. Ct. at 2656.

   II

   We turn next to appellants' contention that the exclusion of recording devices from[***11] each house violates the Due Process Clause of the Fourteenth Amendment and Art. 23 of the Maryland Declaration of Rights. n4 They argue that they "have a property right in the pursuit of their profession of reporting the news." The restriction against recording devices, they say, "interferes with and deprives [them] of the right to perform [their] occupation, deprives [them] of the ability to compete with other forms of news media, and substantially diminishes the market value of [their] product -- 'Oral News.'" They also contend that the discretionary restrictions, enforced by the President and Speaker, are unreasonable and arbitrary.

n4 "That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land."
 
The words, "the Law of the land" in Art. 23 are derived from Magna Charta, Wright v. Wright, 2 Md. 429 (1852); and have been equated by this Court with the words "due process of law" as used in the Fourteenth Amendment, Matter of Easton, Incompetent, 214 Md. 176, 133 A. 2d 441 (1957); Solvuca v. Ryan & Reilly Co., 131 Md. 265, 101 A. 710 (1917); Baltimore Belt R.R. Co. v. Baltzell, 75 Md. 94, 23 A. 74 (1891); thus, in construing Art. 23, we regard those decisions of the Supreme Court that interpret the Fourteenth Amendment as controlling.

[***12]

   [**160] We have held that the rights of an individual to engage in a lawful business are entitled to protection under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and by Art. 23 of the Declaration of Rights.  Brooks v. State Board, 233 Md. 98, 107, 195 A. 2d 728 (1963); see Bruce v. Dir., Chesapeake Bay Aff., 261 Md. 585, 276 A. 2d 200 (1971). Thus, if there were any merit to appellants' claims that the recording device restriction actually interferes with their right to pursue their profession, we would be required to uphold their constitutional challenge.  We hold that this challenge has not been sustained.

   Appellants base their argument principally on the case of [*8] Nevens v. City of Chino, 233 Cal. App. 2d 775, 44 Cal. Rptr. 50 (1965), where a news reporter sought to enjoin a city council from enforcing a measure that provided: "That from and after this date, no tape recorder or mechanical device for the purpose of obtaining tapes or recordings of Council proceedings be permitted in the Council chamber," 44 Cal. Rptr. at 50. The court reversed a dismissal of the suit, and struck down the measure as an unreasonable exercise of[***13] the police power, and thus one which was violative of the reporter's due process rights.

   The California court held that the action of the city council was "too arbitrary and capricious, too restrictive and unreasonable," 44 Cal. Rptr. 52. In so holding, it reasoned that since tape recorders are "silent and unobtrusive," their exclusion unreasonably deprived reporters "of the means to make an accurate record of what transpires in a public place." Id. at 52.  The court then conjectured:
 
"Suppose, for example, that the Chino City Council had attempted to prohibit the use of pen, or pencil and paper, at the sessions held by them." Id. at 52.
 
This statement is clearly inapposite here.  While the removal of pen and paper might frustruate all effective communication, the prohibition against tape recorders is a mere inconvenience.  Therefore, we think the reasoning of the California decision is unsound, and we decline to follow it.  Cf. Davidson v. Common Council of City of White Plains, 40 Misc. 2d 1053, 244 N.Y.S.2d 385 (Sup. Ct. 1963).

   More persuasive, in our view, is Trimble v. Johnston, supra, where a news reporter sought a mandatory injunction against[***14] certain officers of the United States Senate, compelling them to allow inspection and copying of certain payroll records.  There, in addition to First Amendment rights, a due process claim not unlike that advanced here was asserted.  In rejecting it, the court wrote:
 
"The second basis on which the plaintiff urges that the defendants have invaded his Constitutional rights is that their refusal constitutes an [*9] interference with his right to pursue his occupation and, therefore, is a deprivation of a property right without due process of law. Manifestly, the defendants have done nothing to obstruct affirmatively the plaintiff's pursuit of his chosen calling.  The most that can be said is that they have declined to aid him to see documents which Congress has not seen fit to make accessible to the public.  Much that has been just said in regard to the Constitutional freedom of the press is equally applicable here." 173 F. Supp. at 656.

   Likewise, we do not regard the recording prohibition as an unconstitutional impairment of appellants' right to pursue their profession for essentially the same reasons we mentioned earlier in rejecting appellants' First Amendment claim. [***15] To be sure, as we noted, the recording devices might possibly foster speed and accuracy, but the prohibition against their use falls short of establishing unconstitutionality in this case.  The rules challenged here find their basis in the Maryland Declaration of [**161] Rights. n5 We see no violation of due process in rules which may tend to exalt the preservation of order and decorum in the legislative chambers over increased efficiency of the press.

n5 Art. III, Section 19:

   "Each House shall be judge of the qualifications and elections of its members, as prescribed by the Constitution and Laws of the State; shall appoint its own officers, determine the rules of its own proceedings . . . ." (emphasis added).

   Art. III, Section 23:

   "Each House may punish by imprisonment, during the session of the General Assembly, any person, not a member, for disrespectful, or disorderly behavior in its presence, or for obstructing any of its proceedings.  . . ." (emphasis added).

   III

   Lastly, [***16] we pass to appellants' contention that the proscription against recording devices violates the Equal Protection Clause of the Fourteenth Amendment. They argue that:
 
". . . The restriction of the use of tape recording [*10] devices singles out of the general public, members of the press attempting to perform their functions of reporting and communication of news.  These restrictions therefore are aimed solely at the press media and as such violate this constitutional right."

   We need not dwell at length upon this issue, nor undertake a review of the principles enunciated in the cases decided under the Equal Protection Clause. The short answer to appellants' contention is that nowhere in the legislative rules does it state that only news reporters are barred from bringing recording devices into each chamber; nor is it alleged by appellants that other persons, to the exclusion of reporters, have been admitted onto the floor of either house with such devices.  The ban here applies to the instruments and not against particular persons or classes.  Therefore, this case is wholly dissimilar from such cases as Kovach v. Maddux, 238 F. Supp. 835 (M.D. Tenn. 1965), where [***17]only the reporters of a specifically designated newspaper were excluded from the floor of the state senate.

   We find no violation of appellants' rights under the Federal or State Constitutions.

   Order affirmed; appellants to pay costs. 

ANNE ARUNDEL COUNTY, MARYLAND v. MOUSHABEK et al. 
No. 84 (Adv.), September Term, 1973
 
Court of Appeals of Maryland
 
269 Md. 419; 306 A.2d 517; 1973 Md. LEXIS 838

 July  5, 1973, Decided

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

DISPOSITION: Decree modified and as modified affirmed; appellant to pay the costs.

CORE TERMS:  ordinance, invalid, public hearing, emergency, county charter, chancellor, severable, charter, zoning, indictment, modified, severability clause, zoning ordinance, legislative body, county executive, legislative act, basic policy, item veto, charter provision, final passage, severability, map, suit to recover, predecessor, intendment, separable, effective, enacting, altering, decree

COUNSEL: Ira J. Wagonheim and John M. Court, Assistant County Solicitor, with whom was Paul F. Borden, County Solicitor, on the brief, for appellant.

   Jay I. Morstein, with whom were Stephen H. Sachs and[***3] Frank, Bernstein, Conaway & Goldman on the brief, for appellees.

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

OPINIONBY: SMITH

OPINION: [*420] [**518] We are here presented with the question of whether amendments to an Anne Arundel County zoning ordinance were properly adopted and, if not, whether their invalidity vitiates the entire zoning ordinance. We shall answer both questions in the negative.

   [*421] On October 2, 1972, the County Council (the council) of Anne Arundel County (the county) adopted Bill No. 136-72, a comprehensive zoning ordinance for the northern portion of the third assessment district of that county.  A public hearing on the ordinance had been held on September 18, 1972. After the hearing a number of amendments to the bill were proposed by various council members.  At the October 2 meeting at which the ordinance was adopted by the council, 97 of those amendments were also adopted.  The county executive approved and signed the bill, after first vetoing 34 of the amendments pursuant to the item veto provisions of the county charter. The council sustained 14 of [***4]the vetoes and overrode 20.

   The problem here arises under § 307 (e) of the county charter. In setting up the [**519] procedure for passing ordinances it provides in pertinent part:
 
"Not later than the next calendar day following the introduction of a bill the Chairman of the Council shall schedule a public hearing thereon which shall not be less than seven days after its introduction; provided that the Council may reject any ordinance on its introduction without a hearing by a vote of five members.  The hearing may, but need not be, held on a legislative session-day and may be adjourned from time to time.  After the public hearing as herein provided, a bill may be finally passed on a legislative session-day with or without amendment, except, that if a bill is mended before final passage and the amendment constitutes a change of substance, the bill shall not be passed until it is reprinted or reproduced as amended and a hearing shall be set thereon and proceedings had as in the case of a newly introduced ordinance." (Emphasis added.)
 
The subsection further provides that it "shall not be applicable to emergency ordinances and the annual budget and appropriation[***5] ordinance of Anne Arundel County . . . ." This was not an emergency ordinance. It is conceded that no [*422] hearing was held by the council between the time of adoption of the amendments and final passage. The key question, therefore, is whether these were amendments "of substance." There is no contention that the charter provision here is anything other than mandatory if these amendments are found to be amendments "of substance."

   The appellees are owners of real property in the area rezoned by the ordinance. They sought, successfully, in the Circuit Court for Anne Arundel County to strike down the ordinance by reason of the claimed procedural defect. The chancellor in his opinion made no reference to the question of severability there and here raised by the county, apparently concluding that the procedural defect invalidated the entire ordinance.

   Each and every one of the 97 amendments to the bill changed zoning for a particular area.  The county's concept of the meaning of the term "change of substance" is a change outside the scope of the title.  It points out that this ordinance was intended to apply to the third assessment district.  It says that if there had been[***6] an attempt to amend the ordinance by providing for zoning in a portion of the fourth district, this would have necessitated an amendment to the title of the ordinance and thus would be an amendment of substance.  It then argues that the title of the ordinance is enough to place interested citizenry on notice that their property may be affected and they thus have the obligation to follow the path of the bill through the council. Alternatively, it suggests that the specific amendments complained of by the appellees concern approximately 342 acres of land out of more than 30,000 acres affected by the bill and thus suggests that the amendments do not constitute changes of substance.

   The Anne Arundel County charter is to its legislative body as the Constitution of Maryland is to the General Assembly of Maryland.  In Legg v. Annapolis, 42 Md. 203 (1875), Judge Alvey said for the Court:
 
"A valid statute can only be passed in the manner prescribed by the Constitution, and when the [*423] provisions of that instrument, in regard to the manner of enacting laws, are wholly disregarded, in respect to a particular Act, it would seem to be a necessary conclusion that the Act, [***7]though having the forms of authenticity, must be declared to be a nullity.  Otherwise the express mandatory provisions of the Constitution would be of no avail or force whatever." Id. at 221.
 
Hence, we must ascertain whether in this instance the council in enacting the ordinance complied with the provisions of the charter.

   [**520] There may be a possible parallel between this charter provision and some of our criminal cases.  Clerks of court for generations in accordance with Maryland Rule 714 and its predecessor statutes have said to grand juries, "Are you content that the Court shall amend matters of form, altering no matter of substance without your privity in those bills you have found?" On this subject Judge Horney said for the Court in Lank v. State, 219 Md. 433, 149 A. 2d 367 (1959):
 
"As to what constitutes substance and what is merely formal in an indictment, it may be said that all facts which must be proved to make the act complained of a crime are matters of substance, and that all else -- including the order of arrangement and precise words, unless they alone will convey the proper meaning -- is formal.  27 Am. Jur., Indictments and Informations[***8] , § 117." Id. at 436.
 
In Corbin v. State, 237 Md. 486, 206 A. 2d 809 (1965), Judge Marbury alluded to Lank and its holding.  He then said for the Court:
 
"We have held in the past that a criminal charge must so characterize the crime and describe the particular offense so as to give the accused notice of what he is called upon to defend and to prevent a future prosecution for the same offense.  [Citing cases.] Under the circumstances as presented here, [*424] changing the name of the owner of the property constituting the subject matter of the crime charged was a change in form and not substance, since none of the essential elements of the offense was changed, and therefore the amendment was properly allowed and resulted in no prejudice to the rights of the accused. Annotation, 68 A.L.R.  Power of court to amend indictment, p. 928." Id. at 490.

   Another possible parallel is to be found in the holdings of our sister states relative to pleading.  In Barber v. Briscoe, 8 Mont. 214, 19 Pac. 589 (1888), the court gave illustrations of an amendment of substance as:
 
"where some material allegation has been left out of the original[***9] complaint, as, for instance, in a suit to recover on a note payable at a certain place, the failure to allege presentation and dishonor at the place of payment; or, in a suit to recover damages for a malicious prosecution, the failure to allege malice, or that the prosecution was without probable cause, or that it had been terminated in favor of the plaintiff." Id. at 218-19.
 
In Western Smelting Co. v. Benj. Harris & Co., 302 Ill. App. 535, 541, 24 N.E.2d 255 (1939), an amendment materially increasing the ad damnum was held to be an amendment of substance.  See also 3 Words and Phrases (permanent ed. 1953) 471 "amendment of substance."

   Black's Law Dictionary (4th ed. 1951) defines "substance" as:

   "Essence; the material or essential part of a thing, as distinguished from 'form.' . . . That which is essential." Id. at 1597.

   We find persuasive the language used by the New Jersey courts relative to a provision somewhat similar to the charter provision here.  In New Jersey a statute (N.J.S.A. 40:49-2(c)) provides relative to certain ordinances:

   "If any amendment be adopted, substantially [*425] altering the substance of the [***10] ordinance . . .,"
(Emphasis added.)
 
certain procedures shall be followed.  Their interpretation of that section strikes us as being in line with Black's definition and not inconsistent with our holdings in criminal matters.  In Wollen v. Fort Lee, 27 N. J. 408, 142 A. 2d 881 (1958), a zoning ordinance was amended without following that procedure. The court there said:

   "The words are to be assessed in the context of the provision of which they are a part and the basic policy of the [**521] statute.  'Substance' in the statutory intendment has reference to the essential elements of the legislative act and the public policy of acts in pari materia.  In relation to the altered use-classification of the tract itself, the establishment of a 'buffer' zone 50 feet wide for entrance ways and landscaping usable in part for off-street parking and garages was patently incidental to the fulfillment of the basic project, secondary or minor in a design for the highest and best use of the lands in the exercise of the zoning process.  Compare Manning v. Borough of Paramus, 37 N.J. Super. 574 (App. Div. 1955), Jayne, J.A.D.  And the 'enlarged restraint,' if such[***11] it be, imposes no burden on plaintiffs; they are not aggrieved.  See State v. Council of Newark, 30 N.J.L. 303 (Sup. Ct. 1863). The statute has in view pragmatic considerations that would not be served by holding republication of the amendment requisite in these circumstances.  The act is to be given a reasonable construction to advance the essentials of the avowed policy." Id. at 420-21.
 
Similar holdings are to be found in Gilman v. Newark, 73 N.J. Super. 562, 180 A. 2d 365 (1962), and Inganamort v. Borough of Fort Lee, 120 N.J. Super. 286, 293 A. 2d 720 (1972), aff'd on other grounds 303 A. 2d 298 (1973). In the latter case the court held opponents of an ordinance could not complain when an amendment to a rent control [*426] ordinance reduced its effective period from three years to one, saying:
 
"If anything, plaintiffs are benefited by the change.  Under these circumstances, the decreased time period cannot be deemed to be a substantive aspect of the ordinance. Accordingly, no substantial alteration of the substance of the ordinance has occurred." (Emphasis in original.) (Citing cases.) Id. at 296.

   In Prince George's County [***12]  v. Beard, 266 Md. 83, 291 A. 2d 636 (1972), we said:
 
   "It must be assumed that the citizens of Prince George's County meant what they said in the language placed in the Charter and in the consequent allocation of powers between the executive and legislative branches.  The oft quoted statement in Thomas v. Police Commissioner, 211 Md. 357, 127 A. 2d 625 (1956):

   'It is a hornbook rule of statutory construction that, in ascertaining the intention of the Legislature, all parts of a statute are to be read together to find the intention as to any one part and that all parts are to be reconciled and harmonized if possible.' (Citing authorities.) Id. at 361.
 
is no less true of a county charter." Id. at 91.
 
It must be no less assumed that the people of Anne Arundel County meant what they said in the language they placed in their charter. In § 307(f) provision is made for passing emergency ordinances and for public hearing on such ordinances, but then it is provided that "[a]fter public hearing the bill may be passed with or without amendment . . . ." In Ruark v. Engineers' Union, 157 Md. 576, 585, 146 A. 797 (1929), Judge Parke said for the Court[***13] relative to the word "locality" that "whatever may be the scope of its varying significance, its meaning in a particular statute is susceptible of being determined from the context, since the [*427] words of a statute are to be understood in the sense in which they best harmonize with the subject of the enactment and the objects which the legislature had in view."

   Here we have a county charter which has required a public hearing on every ordinance, including emergency ordinances, a concept not found with reference to all legislative bodies.  After hearing, an emergency ordinance may be passed with or without amendment, so the charter says, but a nonemergency ordinance must be "reprinted or reproduced as amended and a hearing shall be set thereon" if there is an [**522] amendment "before final passage and the amendment constitutes a change of substance." The obvious intent was for citizens to be informed and to have an opportunity to express themselves on all matters of importance, except only in the case of amendments to an emergency ordinance.

   We adopt the definition of the New Jersey court that an amendment of "'[s]ubstance' in the statutory intendment has reference[***14] to the essential elements of the legislative act and the public policy of acts in pari materia," and the words must "be assessed in the context of the provision of which they are a part and the basic policy of the statute." Here the zoning classification for more than 300 acres of land was changed so that, as the chancellor noted, "[s]ome properties at first proposed as residential districts became commercial districts, multi-family districts, or industrial districts," with "[e]ven one parcel scheduled for deferred development [receiving] a commercial classification." For purposes of this case we need go no further in the spelling out of the application of this definition than to say we agree with the chancellor that the effect of the 97 amendments was a change of substance. They changed "the essential elements of the legislative act."

   In this ordinance § 3 provided that if any of the provisions of the ordinance were "held invalid for any reason, such invalidity [should] not affect the other provisions or any other application of [that] Ordinance which can be given effect without the invalid provisions or application, and to [that] end, all the provisions of [the] [***15] Ordinance [were] [*428] declared to be severable." We thus pass to the county's contention that this language should be made effective.

   In deciding this point the test we must apply was stated for the Court by Judge Oppenheimer in Sanza v. Md. Board of Censors, 245 Md. 319, 226 A. 2d 317 (1967):

   "The presence of a severability clause raises a presumption of severability, but the clause is merely declaratory of an established rule of construction; it is 'an aid merely, not an inexorable command.' The test is, would the legislative body have enacted the statute or ordinance if it knew that part of the enactment was invalid? City of Baltimore v. Stuyvesant Ins. Co., 226 Md. 379, 390, 391, 174 A. 2d 153 (1961); City of Baltimore v. A. S. Abell Co., 218 Md. 273, 289-91, 145 A. 2d 111 (1958), and cases therein cited.  In Stuyvesant, supra, we held the ordinance therein involved was separable and that, while parts were invalid, the remainder was valid, even though the ordinance contained no severability clause. In Baltimore v. Abell Co., supra, despite the presence of a severability provision, the Court held the Mayor and City Council would not have adopted[***16] the ordinances if it had known they could be only partially effectual." Id. at 338-39.

   In Baltimore v. A. S. Abell Co., 218 Md. 273, 145 A. 2d 111 (1958), Judge Prescott said for the Court:
 
"The true test of separability is the effectiveness of an act to carry out, without its invalid portions, the original legislative intent in enacting it; and a saving clause will not be given effect where such invalid provisions affect the dominant aim of the whole statute." (Citing authorities.) Id. at 290. 

   In Hagerstown v. Dechert, 32 Md. 369 (1870), Chief Judge Bartol said for our predecessors:

   "A Statute may be good in part, while other parts [*429] are invalid. If a portion be unconstitutional, the court is not authorized, for that reason, to declare the whole void.  State v. Davis, 7 Md. 151.

   "In Commonwealth v. Hitchings, 5 Gray, 482, where the same rule of construction was adopted, the court said: 'The constitutional and the unconstitutional provision may even be contained [**523] in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall.  The point is, not whether they are contained [***17]in the same section, for the distribution into sections is purely artificial; but, whether they are essentially and inseparably connected in substance.'

   "We adopt that as a correct exposition of the law governing the court in the construction of Statutes." Id. at 384.

   The answers to the questions set forth in our earlier decisions are readily found here by virtue of the nature of the amendments and the exercise of the item veto on those amendments by the county executive. As originally proposed § 1 of the ordinance referred to a number of maps "introduced simultaneously [t]herewith . . . ." It said they were "hereby approved and adopted, as hereinafter amended." Then followed the long series of amendments.  Typical of the amendments is No. 4, one of those to which appellees specifically objected in their bill of complaint as affecting their property.  It said:

   "(4) MAP NO. Y13 BE, AND IT IS HEREBY AMENDED AS FOLLOWS, SAID AMENDMENT BEING DESIGNATED ON SAID MAP AS '(A8)':

   CHANGE THE ANGEL'S FOODMARKET, INC., BODKIN PLAIN PROPERTY FROM C1A -- NEIGHBORHOOD COMMERCIAL DISTRICT TO R1 -- RESIDENTIAL DISTRICT, SAID PROPERTY BEING DESCRIBED AS FOLLOWS: BEING ALL OF THE PROPERTY[***18] OWNED BY ANGEL'S FOODMARKET, INC. AS RECORDED [*430] IN THE LAND RECORDS OF ANNE ARUNDEL COUNTY, MARYLAND, LIBER 1449, FOLIO 309, LIBER 1531, FOLIO 100 AND OF LOT 103 OF BODKIN PLAINS AS RECORDED IN THE PLAT RECORDS OF ANNE ARUNDEL COUNTY, MARYLAND, ON PLAT 15, PAGE 24."
 
That amendment is but little different from No. 55, vetoed by the executive, which veto was sustained.  It read:

   "(55) MAP NO. R11 BE, AND IT IS HEREBY AMENDED AS FOLLOWS, SAID AMENDMENT BEING DESIGNATED ON SAID MAP AS '(F8)':

   CHANGE THE FRED KAYLOR PROPERTY FROM C3 -- GENERAL COMMERCIAL DISTRICT AND R1 -- RESIDENTIAL DISTRICT TO W2 -- LIGHT INDUSTRIAL DISTRICT, SAID PROPERTY BEING DESCRIBED AS FOLLOWS: BEING ALL OF THAT PROPERTY OWNED BY FRED A. KAYLOR AND RECORDED IN THE LAND RECORDS OF ANNE ARUNDEL COUNTY, MARYLAND, LIBER 424, FOLIO 158.  TWO ACRES +/- ON THE EAST SIDE OF RITCHIE HIGHWAY AND 850' +/- SOUTH OF WISHING ROCK ROAD."
 
It is obvious that council and executive regarded these amendments as severable from the main body of the ordinance. Otherwise, the executive would not have vetoed some of the amendments and the council would not have sustained the veto to part, but not all, of[***19] those amendments.  Had there been no amendments, the ordinance would have been complete as a vehicle for determining the permitted land uses in the district.  As Judge Prescott put it for the Court in Casey Dev. Corp. v. Mont. County, 212 Md. 138, 148, 129 A. 2d 63 (1957), these parts "may be eliminated and the legislative intention easily carried out." Accordingly, the chancellor erred in not determining that the ordinance was severable. His declaratory decree should have spelled out the valid adoption of the ordinance, but specified that the [*431] amendments were invalidly adopted and hence ineffective.  To that extent, the decree must be modified.

   Decree modified and as modified affirmed; appellant to pay the costs. 

TREFFINGER et al. v. STERLING 
No. 297, September Term, 1972
 
Court of Appeals of Maryland
 
269 Md. 356; 305 A.2d 829; 1973 Md. LEXIS 830; 56 A.L.R.3d293

 June  22, 1973, Decided

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

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

CORE TERMS:  confidential relationship, daughter, deed, chancellor, undue influence, shore, hypothetical question, advice, burden of demonstrating, conveyance, prior opinion, psychiatrist, harmless, coercion, grantor, convey, duties, party asserting, Maryland Rule, advanced age, adult child, inconsistencies, feebleness, debility, normally, procured, mobility, embraces, proven, adult

COUNSEL: Charles C. Hartman, Jr., for appellants.

   Robert N. Lucke for appellee.

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

OPINIONBY: DIGGES

OPINION: [*357] [**830] To understand the factual background of this appeal, it is necessary to go back to 1967, a date almost four years before this equity action was filed in the Circuit Court for Anne Arundel County.  The complainants, appellants here, are[***3] the son, Charles, and two daughters, Olga and Rosina, of Charles J. Treffinger, Sr. (Mr. Treffinger), who were ignored by their father when he conveyed his summer shore property on Cypress Creek in Anne Arundel County to their widowed sister Marie, the appellee.  Appellants seek to set aside this deed on two grounds: first, that the land was conveyed at a time when their father was mentally incompetent, and, second, that the conveyance resulted from undue influence exercised upon him by Marie.

   [*358] It seems that in September of 1967, Mr. Treffinger, while vacationing at Cypress Creek, became involved in an altercation with a neighborhood youth, Ricky Smith, which resulted in the child's sustaining a broken arm.  A short time thereafter, Ricky's attorney made a demand upon Mr. Treffinger for $500 to settle his young client's claim for the damages resulting from this encounter.  Mr. Treffinger denied liability, but instructed his attorney to attempt to settle this claim for $200.  When neither side was willing to accept the other's offer, the matter remained dormant until July 31, 1969, when a suit was instituted on behalf of young Ricky claiming $7,500 in damages.

   At the[***4] onset of the summer of 1969, Mr. Treffinger moved from his home in Baltimore City to his summer residence on Cypress Creek.  Marie and her daughter, as was their custom, joined him for the summer at the waterfront residence.  The days there were pleasant for this eighty-nine year old gentleman until he received notice of the Smith suit.  Then, as he feared that legal action endangered his summer property because he had recently reduced his liquid assets below $7,500 by contracting to repair a bulkhead along his shore line, Mr. [**831] Treffinger directed Marie to go to his attorney and secure advice concerning what should be done in regard to the suit.  It is uncontradicted in the testimony that Marie acted as requested; and, upon her return informed her father that the lawyer advised that the property be transferred to her in order to insulate it from a possible judgment.  Following a discussion between father and daughter, Marie agreed to purchase the property for $7,000 and the transaction was consummated on August 20, 1969.  About a month later, she personally paid the cost of the repairs to the bulkhead amounting to $3,586.00, thus relieving her father of that obligation. [***5]

   Following the death of Mr. Treffinger on November 25, 1969, the appellants as his heirs, claiming that the property had a value of around $21,000, brought this suit in an effort to void the deed to Marie on the grounds that it was procured by her undue influence and that at the time of transfer their father lacked sufficient mental capacity to [*359] execute a valid conveyance. By her answer, Marie denied both of these claims.

   In considering the case on the merits, the chancellor made an evidentiary ruling which is one of the subjects of the appeal here.  Appellants contend that the chancellor committed prejudicial error when he allowed the following hypothetical question asked of appellee's expert medical witness by her counsel to be answered:

   "Now doctor, assuming that all of the testimony that you have heard in this case concerning the decedent Charles J. Treffinger, Sr. is true, and based on your knowledge and skill as a specialist a doctor of medicine specializing in psychiatry, to a reasonable medical certainty, do you have an opinion as to whether or not Charles J. Treffinger, Sr. was competent to execute a deed in August of 1969?  (Emphasis added.)

   Hypothetical[***6] questions may properly be asked in the following ways: one is to state for the witness such facts as are essential to the foundation of an opinion, ask him to assume the truth of the facts so stated, and then render an opinion upon them; the other is to ask the expert to predicate his opinion upon uncontradicted evidence heard or read and assumed to be true.  Kruszewski v. Holz, 265 Md. 434, 444, 290 A. 2d 534 (1972). The inquiry here was obviously an attempt to utilize the latter technique in posing a hypothetical question. And, although appellants recognize the propriety of such an interrogation, they object to the form of this particular question, using as it does the evidence in this case as its foundation.  It is difficult to particularize appellants' vague and overly general argument.  However, their objection seems to be grounded on the long line of cases which state that while an expert who has heard the entire testimony at trial and is asked to assume the truth of all that he has heard may base his opinion on facts testified to by other witnesses, including experts, if there are no internal inconsistencies; he may not respond if the question is so broad that it calls[***7] upon him to take into [*360] account, in whole or in part, the opinions, inferences, and conclusions of other witnesses.  Consol. Mech. Contractors v. Ball, 263 Md. 328, 283 A. 2d 154 (1971); Mt. Royal Cab Co. v. Dolan, 168 Md. 633, 179 A. 54 (1935); Quimby v. Greenhawk, 166 Md. 335, 171 A. 59 (1934). As appellants have failed to call to our attention any internal factual inconsistencies, and as our careful review of the record does not reveal their presence, we must assume that the objection does not go to this potential problem.  Therefore, appellants' opposition to the form of the question must relate to the fact that to give a truthful and complete answer the appellee's medical expert, who had sat through the entire five day trial, must accept as correct and include in his response the prior opinion testimony of appellants' psychiatrist who testified that in his opinion Mr. Treffinger was incompetent at the time of the execution of the deed. We agree that normally it would be reversible error to permit a response to a hypothetical question which embraces the opinions of others.  Consol. Mech. Contractors v. Ball, supra. However, it is clear that appellee's[***8] [**832]expert did not include as a fact to be considered the other psychiatrist's opinion since he expressly rejected it and reached a diametrically opposed conclusion.  In fact, a major part of his testimony was devoted to refuting the medical diagnosis and judgments of the other doctor. Under these circumstances, we think that any defects which existed in the hypothetical question itself were rendered harmless by the witness's obvious refutation and disregard of the prior opinion testimony; and, any error which was made by the chancellor in permitting this opinion to be expressed was harmless and does not compel reversal.  See Wolfinger v. Frey, 223 Md. 184, 162 A. 2d 745 (1960); Gordon v. Opalecky, 152 Md. 536, 137 A. 299 (1927).

   We proceed, therefore, to the substantive issue in this appeal, namely, whether the trial court was correct in concluding that Mr. Treffinger was not improperly induced by Marie to convey the shore property to her.  We begin by stating that it is the law of Maryland that where no confidential relationship is proven, the burden of demonstrating undue influence remains on the party [*361]asserting it.  And, to meet this burden that party[***9] must bring forth proof of coercion or that degree of influence which renders him too impotent to resist, thus depriving him as a grantor of his free agency to such an extent that the execution of the deed is not his voluntary and unconstrained act.  Akin v. Evans, Exec., 221 Md. 125, 156 A. 2d 219 (1959). It is also clearly established that undue influence may arise from the breach of a confidential relationship existing between a grantor and his grantee.  But, there is no presumption of such a relationship in the case of a transfer from a parent to a child and the burden of demonstrating that one exists is on the party alleging it.  Akin v. Evans, Exec., supra. Among the factors to be examined in determining whether this relationship has come into being are the parent's advanced age, his physical debility, his mental feebleness, and his dependence on his child.  None of these factors is necessarily conclusive and each should be given that weight which is warranted by the circumstances then present.  Masius v. Wilson, 213 Md. 259, 131 A. 2d 484 (1957); Tribull v. Tribull, 208 Md. 490, 119 A. 2d 399 (1956). Normally it is the minor child who relies heavily upon his parent[***10] for care and protection or for guidance in business affairs so that a confidential relationship exists between them with the duties running from the adult to the minor.  It is only when, as a result of debility or feebleness, a parent becomes dependent on his child for aid and counsel, that a confidential relationship is re-established but with the duties reversed in the latter case and with the burden of establishing the fairness of the transaction cast upon the child.  Tribull v. Tribull, supra; Williams v. Robinson, 183 Md. 117, 36 A. 2d 547 (1944); Gaggers v. Gibson, 180 Md. 609, 26 A. 2d 395 (1942).

   It is evident from the case law cited that if the appellants are to rely on the existence of a confidential relationship between Marie and her father they have the burden of demonstrating it.  The chancellor found that this burden was not met and from the record before us we cannot say that Judge Beardmore was clearly in error in reaching that conclusion.  Maryland Rule 886.  The proof presented by the [*362] appellants in their effort to demonstrate the existence of a confidential relationship is, at best, inconclusive.  The record portrays Mr. Treffinger as a very old[***11] man whose mobility was somewhat limited due in part to his advanced age and in part to an accident that had occurred several years before.  However, throughout most of the year he lived alone in Baltimore and Marie only joined her father at the shore for their mutual vacation enjoyment, not because of any need for custodial care.  As a considerate daughter should, Marie ran errands for her father in an effort to repay him for his kindness in allowing her and her daughter to vacation at Cypress Creek.  And she was motivated more out of a desire to make Mr. Treffinger's life more comfortable rather than out of necessity to fulfill his needs.  The assistance she rendered was always at her father's direction.  In a [**833] sense, she served merely as his messenger, as his arms and legs. The record is clear, and the chancellor so found, that Mr. Treffinger did not in any way depend on Marie for financial support as he received a monthly pension. In fact, he paid the bills.  While it is true that on occasion she made bank deposits, withdrawals and signed checks for him, all of this was accomplished at his specific direction and was not occasioned by any influence on her part.  Mr. [***12] Treffinger's independence was manifested by the fact that, when faced with the crisis precipitated by the Ricky Smith suit, he instructed Marie to go to his attorney for advice rather than seeking guidance and direction from his daughter. Neither the legal consultation nor the actual transfer was Marie's idea.  Mr. Treffinger's confidence was placed in the advice of his attorney -- not Marie's.

   This suit is unlike those cases such as Gaggers v. Gibson, supra, in which this Court found a confidential relationship to exist between an adult daughter and her father.  In Gibson the father was eighty-six years old, enfeebled for more than a year, did not appear capable of serious mental thought, and was constantly pressured by his daughter who had assumed control over his affairs to transfer his property to her husband.  The facts found by the chancellor here are unlike those in that case.  Testimony by disinterested parties [*363] demonstrated that Mr. Treffinger could carry on a coherent conversation, conduct his own business, and was independent in reaching important decisions.  In fact, the only evidence which would in any way demonstrate that a confidential relationship[***13] might exist in this case would be Mr. Treffinger's extreme old age.  But, as we said in Henkel v. Alexander, 198 Md. 311, 83 A. 2d 866 (1951) that is not enough.  This Court has frequently found no confidential relationship to exist between an elderly parent and his adult child. See, e.g., Masius v. Wilson, supra at 264 and the cases cited therein.  This case presents just one more example.

   With a finding that there was no confidential relationship between Marie and her father, the burden was placed upon the appellants to demonstrate that the conveyance of the shore property from father to daughter was procured by undue or other improper influences.  Judge Beardmore decided that this burden was not met and again we cannot say he was clearly in error in ruling as he did.  In fact, there was little or no evidence in the record which would indicate that Marie exercised any force or coercion in acquiring the deed to the Cypress Creek property.  Rather, the evidence shows it was the fear of a large judgment which could not be satisfied by his cash on hand, coupled with his lawyer's advice that he transfer the property, which brought about Mr. Treffinger's decision to convey his[***14] shore home to Marie.

   Under the views we have just expressed concerning the merits of this controversy, it becomes unnecessary to decide the remaining issue raised on this appeal.

   Decree affirmed.

   Costs to be paid by the appellants. 

D'AMBROGI v. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD etal. 
No. 325, September Term, 1972
 
Court of Appeals of Maryland
 
269 Md. 198; 305 A.2d 136; 1973 Md. LEXIS 817

 May  30, 1973, Decided

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

DISPOSITION: Order reversed, case remanded for entry of order directing the payment of $1,412.92; costs to be paid by appellee, Unsatisfied Claim and Judgment Fund Board. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant sought review of a Circuit Court for Anne Arundel County (Maryland) decision that denied his claim to be paid under the Unsatisfied Claim and Judgment Fund, Md. Ann. Code art. 66 1/2, §§ 7-601 through 7-635 (1957, 1970 Repl. Vol.), for an earlier judgment related to damage suffered by the loss of his truck after it was struck by a vehicle whose driver failed to pay the judgment amount.

OVERVIEW:  Appellant challenged a trial court decision refusing to order the amount of an earlier unsatisfied judgment relating to the damages appellant suffered by the loss of his truck after an automobile accident to be paid from the Unsatisfied Claim and Judgment Fund (Fund), Md. Ann. Code art. 66 1/2, §§ 7-601 through 7-635 (1957, 1970 Repl. Vol.). The appellate court reversed the decision of the trial court and remanded with instructions that the claimed amount be paid out of the Fund. Appellant's loss of motor vehicle use was a type of damage payable from the Fund. Appellant complied with the requisite procedural steps for recovery under the Fund and the amount of loss was recoverable under § 7-611.

OUTCOME:  The appellate court reversed a trial court decision that refused to allow appellant to recover unsatisfied amounts suffered by the loss of his motor vehicle from the Unsatisfied Claim and Judgment Fund (Fund). Since the type of damage suffered was recoverable under § 7-611, appellant was entitled to recover the claimed amount from the Fund.

CORE TERMS:  truck, Judgment Fund Law, loss of use, damages resulting, repairing, recoverable, liberally construed, motor vehicle, damage to property, personal injuries, qualified person, bodily injury, directing, rental, notice

CORE CONCEPTS -  

Governments: Legislation
See Md. Ann. Code art. 66 1/2, § 7-606(a) (1957, 1970 Repl. Vol.).

Governments: Legislation: Construction & Interpretation
The Unsatisfied Claim and Judgment Fund Act (Act), Md. Ann. Code art. 66 1/2, §§ 7-601 through 7-635 (1957, 1970 Repl. Vol.), should be liberally construed so as to advance the remedy, due regard being had for the protection of the fund and the realization of essential legislative design. There is no inconsistency between a liberal interpretation of the Act to effectuate its general policies and a requirement of strict adherence to the notice provision of the Act which is a procedural condition precedent to collection from the fund to further its efficient administration.

Torts: Damages: Property Damages
The measure of damages for injury to personal property which has not been entirely destroyed is the cost of repairing the property together with the value of the use of the property during the time it would take to repair it.

COUNSEL: Jack B. Rubin, with whom was Daniel Gordon on the brief, for appellant. 

   Jerome T. May, with whom were Francis B. Burch, Attorney General, and G. Raymond Valle, Assistant [***2]  Attorney General, on the brief, for Unsatisfied Claim and Judgment Fund, one of appellees.  No brief or appearance filed for Frances M. Gray et vir, other appellees.

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

OPINIONBY: SINGLEY

OPINION: [*199] [**137] In July 1970, Mr. D'Ambrogi's truck was struck by an automobile driven by Frances M. Gray and owned by her husband.  D'Ambrogi brought suit against the Grays in the Circuit Court for Anne Arundel County which resulted in the entry of a judgment for $1,512.92: $550.00 for personal injuries; $862.92 for loss of the use of his truck, and $100.00 being the amount deductible under his policy of collision insurance, under which the cost of repairing the truck had been met.  At trial, D'Ambrogi testified that he had paid $862.92 to a truck rental agency for a replacement truck while his was being repaired.

   When the Grays failed to pay the judgment, D'Ambrogi returned to the Anne Arundel County Court with a petition seeking payment of the judgment from Maryland's Unsatisfied Claim and Judgment Fund (the Fund), Maryland Code (1957, 1970 Repl. Vol.) Art. 66 1/2, §§ 7-601 through[***3] 7-635 (the Act).  From an order directing that $550.00, the portion of the judgment relating to personal injuries, be paid from the Fund, but denying payment of $862.92 attributable to damage sustained by loss of use of his truck, D'Ambrogi has appealed.

   The appellant rests his case on two arguments: first, that since the Fund conceded that the procedural requirements of the Act had been complied with, the court below lacked the power to deny judgment; and second, that damage sustained as a result of loss of use of a motor vehicle is properly payable from the Fund. Because we regard the second argument as controlling, we need not consider the first.

   D'Ambrogi takes as his point of departure Art. 66 1/2, § [*200] 7-606 (a) which sets out the contents of the notice to be given the Fund:
 
"Any qualified person, who suffers damages resulting from bodily injury or death or damage to property arising out of the ownership, maintenance, or use of a motor vehicle . . . [shall give notice to the Fund of an intention to make a claim for damages otherwise uncollectible]."
 
Citing Maddy v. Jones, 230 Md. 172, 179-80, 186 A. 2d 482 (1962) in support of his contention[***4] that the Unsatisfied Claim and Judgment Fund Law is remedial legislation, and should be liberally construed, D'Ambrogi says that § 7-606 (a) clearly encompasses a wide variety of claims arising from a damage to property.

   Not so, says the Fund, which is the real appellee in the case before us.  For D'Ambrogi to succeed, it argues that § 7-606 (a) would have to read:

   "Any qualified person, who suffers damages resulting from bodily injury or death or [damages resulting from] damages to property * * *."
 
[**138] and then points out that the bracketed phrase is not incorporated in the Act.

   It seems to us that D'Ambrogi has the better of the argument.  We have noted in Unsatisfied Fund v. Mosley, 234 Md. 386, 389, 199 A. 2d 366 (1964) and in Mundey v. Unsatisfied Fund, 233 Md. 169, 173, 195 A. 2d 720 (1963) that the Act should be liberally construed so as to advance the remedy, due regard being had for the protection of the Fund and the realization of essential legislative design.  There is no inconsistency between a liberal interpretation of the Act to effectuate its general policies and a requirement of strict adherence to the notice provision of the Act which[***5] is a procedural condition precedent to collection from the Fund to further its efficient administration, Wheeler v. Unsatisfied Fund, 259 Md. 232, 239-40, 269 A. 2d 593 (1970); Tyler v. Commissioner of Motor Vehicles, 252 Md. 39, 248 A. 2d 885 (1969).

   [*201] No extensive citation of authority is necessary to support the proposition that the measure of damages for injury to personal property which has not been entirely destroyed is the cost of repairing the property together with the value of the use of the property during the time it would take to repair it, W.B.& A. Ry. Co. v. Fingles, 135 Md. 574, 579-80, 109 A. 431 (1920). See also Taylor v. King, 241 Md. 50, 54-55, 213 A. 2d 504 (1965); Restatement, Torts § 927 (b) at 647 and Comment l at 657 (1939); Tentative Draft No. 19, Restatement, Torts 2d § 927 (2) (d) at 207 and Comment m and Comment o at 216-18 (1973); 15 Blashfield, Automobile Law and Practice §§ 480.7, 480.9 at 29, 38 (1966).

   Here, the cost of repairing D'Ambrogi's truck was paid by his own insurer. That part of the damage which he suffered which stemmed from loss of use would have been properly recoverable from the Grays, if[***6] reasonable, Weishaar v. Canestrale, 241 Md. 676, 684, 217 A. 2d 525 (1966), and there was no serious challenge here to the amount paid the rental agency.  Upon the Grays' failure to pay, it was recoverable from the Fund under § 7-611 which permits a person holding a valid unpaid judgment for an amount in excess of $100.00 for damages to property to seek payment from the Fund, less the $100.00 deduction mandated by § 7-615 (b) (1).

   Order reversed, case remanded for entry of order directing the payment of $1,412.92; costs to be paid by appellee, Unsatisfied Claim and Judgment Fund Board. 

REAL ESTATE COMMISSION OF MARYLAND v. TYLER t/a SevernRealty Company 
No. 284, September Term, 1972
 
Court of Appeals of Maryland
 
268 Md. 641; 303 A.2d 778; 1973 Md. LEXIS 1137

 April  25, 1973, Decided

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

DISPOSITION: Order affirmed; appellant to pay the costs.

CORE TERMS:  notice, license holder, delivery, right of appeal, addressee

COUNSEL: Submitted by Francis B. Burch, Attorney General, and Thomas G. Young, Assistant Attorney General, for appellant.

   No brief filed on behalf of appellee.

JUDGES: Murphy, C. J., and McWilliams, Singley, Smith and Digges, JJ.

OPINIONBY: PER CURIAM

OPINION: [*641] [**778] The Real Estate Commission of Maryland (the Commission) [*642] is unhappy because a circuit court judge (Wray, J.) reversed the Commission's order denying the appellee's application for renewal [***2]of his license as a real estate broker and remanded the case to that Commission for rehearing.  Code (1957, 1972 Repl. Vol., 1972 Supp.) Art. 56, § 225 (a) requires the Commission "at least ten days prior to the date set for the hearing [to] notify in writing the . . . license holder of the charges made . . . ." He is to be afforded "an opportunity to be heard in person or by counsel." The "notice may be served by delivery of same personally to the . . . license holder, or by mailing same by registered mail to the last known business address of such . . . license holder."

   In this case notice was timely mailed to the business address of the appellee.  However, it was mailed certified mail, return receipt requested, with delivery [**779] restricted to the addressee.  Notice was left for the appellee by the postal authorities, but he did not pick up the letter.  Of course, he could have had a dozen employees at his place of business, but if the delivery were restricted to the addressee it would have been necessary for him to go to the appropriate post office window during its regular hours if he were not personally present on the premises when the postman arrived.  The[***3] appellee was personally served by an investigator for the Commission two days before the Commission's hearing.  Since this service quite obviously failed to comply with the statutory requirement of ten days' notice, the order of the trial judge must be affirmed.

   We are reluctant to dismiss the appeal ex mero motu when the case was submitted on brief by the appellant, no brief was filed by the appellee and no consideration has been given to the right of the Commission to appeal.  We have grave doubts that the Commission has a right of appeal. Cf. e.g., Insurance Commissioner v. Allstate Insurance Co., 268 Md. 428, 302 A. 2d 200 (1973); Board of Zoning Appeals v. Guns, 259 Md. 368, 269 A. 2d 833 (1970); Subsequent Injury Fund v. Pack, 250 Md. 306, 310, [*643] 242 A. 2d 506 (1968); Liquor License Board v. Leone, 249 Md. 263, 239 A. 2d 82 (1968); Md. Pharmacy Board v. Peco, 234 Md. 200, 203, 198 A. 2d 273 (1964); Roeder v. Brown, 192 Md. 639, 65 A. 2d 333 (1949); Mayor & C. C. of Balto. v. Shapiro, 187 Md. 623, 51 A. 2d 273 (1947); and Zoning Appeals Board v. McKinney, 174 Md. 551, 199 A. 540, 117 A.L.R. 207 (1938).

   We wish to make it abundantly[***4] clear that in not dismissing the appeal we do not intend to indicate in any way that such a right of appeal by the Commission exists.  The Commission in any subsequent appeals during the present state of the law should be prepared to brief and argue before us any such asserted right to appeal.

   Order affirmed; appellant to pay the costs. 

THE KASTEN CONSTRUCTION COMPANY, INC. v. ROD ENTERPRISES,INC. 
No. 134, September Term, 1972
 
Court of Appeals of Maryland
 
268 Md. 318; 301 A.2d 12; 1973 Md. LEXIS 1106

 March  7, 1973, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed March 15, 1973; Denied March 23, 1973.

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

DISPOSITION: Judgment for costs reversed; judgment entered in favor of The Kasten Construction Company, Inc. against Rod Enterprises, Inc.; case remanded for a determination of damages; costs to be paid by appellee.

CORE TERMS:  paving, completion, ambiguous, settlement, street, sales contract, public works, storm, drain, performance bond, storm drain, escrow, extrinsic evidence, unambiguous, buyer, storm drainage, sidewalks, driveways, seeding, grading, bonded, site, written language, objective test, liquidated damages, entitled to rely, period of time, escrow account, filed suit, separately

COUNSEL: Charles C. W. Atwater, with whom were Dwight C. Stone and Mylander, Atwater, Carney & Stone on the brief, for appellant.

   Francis D. Murnaghan, Jr., with whom was Robert A. Dietz on the brief for appellee.

JUDGES: The cause was argued on January 15, 1973, before Murphy, C. J., and Singley, Smith, Digges and Levine, JJ., and reargued on February 5, 1973, before Murphy, C. J., and Barnes, Singley, Smith, Digges and Levine, JJ., and Jerrold V. Powers, Associate Judge of the Court of Special Appeals, specially assigned. Levine, J., delivered the opinion of the Court.  Murphy, [***3] C. J., and Singley and Smith, JJ., dissent and Murphy, C. J., filed a dissenting opinion in which Singley and Smith, JJ., concur at page 331 infra.

OPINIONBY: LEVINE

OPINION: [*319] [**13] This appeal by The Kasten Construction Company, Inc. (Kasten) is from a judgment for costs entered in favor of Rod Enterprises, Inc. (Rod) by the Circuit Court for Anne Arundel County (Wray, J.), where the case was tried without a jury.  Kasten had sued Rod for damages allegedly sustained by reason of Rod's breach of a contract providing for the sale of approximately seventy-eight acres of subdivided building lots from Kasten to Rod.  A difference of opinion regarding the interpretation of that contract has led to this dispute.

   The land which is the subject of this litigation was acquired by Kasten in 1965.  It is described as "Winchester Estates" and is located on Ritchie Highway in the Third Election District of Anne Arundel County.  Although it was ultimately decided that homes would be built and sold, the land was initially acquired with the intention of developing and then selling the lots.

   [*320] A construction loan in the original sum of $229,000 was obtained from Annapolis Federal[***4] Savings and Loan Association (Annapolis Federal) in December, 1965.  Of this amount, $90,000 was held in escrow by Annapolis Federal to be applied towards the installation of roads, storm drains and utilities.  It was estimated that this sum would cover 81% of the road installation costs and 85% of the storm drain costs.  From time to time, Annapolis Federal released sums of money from the escrow fund to pay invoices related to construction of roads and storm drains.

   [**14] In pursuance of its development of the tract, Kasten was required to enter into a series of "public works agreements" with Anne Arundel County (the county), to which Annapolis Federal was also a party, whereby Kasten agreed to construct its roads in accordance with county requirements by a specified date and to file a performance bond. Also, a storm drain system was required for the group of roads covered by each contract.  As each group or section was approved by the county, Kasten was to undertake maintenance of the completed roads for one year with the performance bond being supplanted by a maintenance bond for that period of time. At the end of the one-year span, the roads would be accepted by the county[***5] and Kasten would be discharged from its contract and bond responsibilities.

   Although the public works contract covering the first group of roads was apparently performed to the county's satisfaction and had reached the maintenance stage, Kasten found itself in straitened circumstances by early 1968, and decided to sell its tract.  Actually, the inspiration for selling originated with Kasten's investors, as well as Annapolis Federal, who were anxiously casting about for someone to "take over" the development commitments and protect their interests.  These efforts led to the arrival of Rod which, through its principal, Tomas Rodriguez, contracted on March 11, 1968 to purchase Kasten's land.

   [*321] Previously, on August 21, 1967, Kasten had entered into another "public works agreement" with the county which, in a manner similar to the earlier agreement, governed the development of the second section of roads and related storm drain facilities.  The performance bond under this agreement was in the amount of $18,500, which was the sum arrived at as liquidated damages to be awarded the county in the event of a failure to perform by Kasten.  The deadline for performance under this[***6] agreement was September 1, 1968.

   As we noted earlier, $90,000 had been withheld in escrow to cover most of the cost originally allocated for completion of the subdivision roads and storm drains. When the parties entered into their contract on March 11, 1968, the escrow balance had been reduced to approximately $45,000.  Annapolis Federal had disbursed the remainder by the payment of invoices received from Kasten or its subcontractor, and upon satisfactory evidence received from the county.

   In the course of disbursing the first $45,000, Annapolis Federal came into possession of two letters from the Anne Arundel County Department of Public Works. The first, addressed to Kasten, was dated June 22, 1966, and read:

   "This is to advise that a recent field inspection indicates all the storm drainage has been constructed in Winchester Estates according to approved plans and county standards and is acceptable to the Department of Public Works."
 
The second, addressed: "TO WHOM IT MAY CONCERN," was dated December 21, 1967, and read:

   "A Bond for the construction of roads, including storm drainage, in the Sub-division of Winchester Estates has been posted with the Department[***7] of Public Works and all work related to this Bond has been done under the supervision [*322] of a Department of Public Works Inspector."
 
Annapolis Federal says it interpreted the first letter to mean that all the storm drainage in the entire subdivision had been completed; for that reason, it says, it released at that time the entire $18,000 which had been held in escrow for that purpose.  It interpreted the second letter to mean that all road work covered by the "public works agreement" of August 21, 1967 and the accompanying performance bond had been completed, and, having read the letter in that manner, on January 4, 1968 released [**15] the sum of $6,156.55 to the road-paving contractor, Reliable Contracting Co., Inc., and thereby reduced the escrow balance to $45,000.

   The sales contract was drafted by Samuel M. Ivrey (Ivrey), attorney for Annapolis Federal, whose interests he was principally concerned with protecting; his fee in this instance, however, was paid by Rod.  The disputed provision of the contract states:
 
"It is further agreed between The Kasten Construction Company, Inc., and Rod Enterprises, Inc., that the sum of Forty-five Thousand ($[***8] 45,000.00) Dollars now held in an escrow account in Trust at Annapolis Federal Savings and Loan Association, being the balance of undisbursed funds of loans in process in re: the mortgage from [Kasten] to [Annapolis Federal] . . . shall be assigned to the buyer, Rod Enterprises, Inc., by the Seller and shall be used by the purchaser for completion of all paving, etc. in regard the streets, etc., of the subdivision." (emphasis added)
 
Although this case focuses on the interpretation of that language, there are other provisions which we regard as material.  The contract contemplated a variable purchase price substantially in excess of $200,000, and provided [*323]for settlement to be held nine days after it was executed.  The contract also contained the following:
 
"The Kasten Construction Company, Inc. shall be responsible for grading, seeding, sidewalks, driveways, which work is to be done in regard houses which are presently under construction.  Upon completion of the work within 60 days from date of settlement, [Kasten] will furnish [Rod] within ninety (90) days from date of settlement with a completed and properly executed Release of Mechanic's[***9] Liens for all contractors, subcontractors, suppliers, etc., who have provided work or materials for said work (grading, seeding, sidewalks, driveways) pertaining to the newly constructed houses.  Upon the failure of [Kasten] to so do, any and all unpaid bills will be presented to [Rod] and which amounts are to be deducted from the said note of Fifteen Thousand ($15,000.00). If [Kasten] fails to do this work within the assigned period of time, then [Rod] is hereby authorized and directed to have the work done and to deduct the cost from the Fifteen Thousand ($15,000.00) Dollar Note.

   * * *

   "[Kasten] is to remove all its equipment from the premises within 24 hours after settlement.

   * * *

   ". . . [T]his contract contains the final and entire agreement between the parties hereto, and that they shall not be bound by any terms, conditions, statements, warranties or representatives [sic], oral or written, not herein contained." (emphasis added)

   The parties settled on the appointed date and Rod carried on with the development of the subdivision.  On [*324] July 24, 1970, however, the county filed suit against Kasten on the second "public works[***10] agreement" and accompanying performance bond. Although a defense of the suit was undertaken by Kasten and its surety, for which a rather sizable bill was incurred for attorney fees and is asserted as an element of damage in this case, those efforts were fruitless.  On the basis that the sum of $18,500 was a stipulation of liquidated damages, judgment was entered for the full sum, even though part of the work called for by the agreement had been completed.

   As the direct result of that judgment, Kasten filed suit against Rod, claiming that it had been damaged by Rod's breach of its agreement to complete "all" paving of streets and storm drain work in the subdivision.  The principal items of damage asserted are the $18,500, representing the amount of the county's judgment against [**16] Kasten, and the attorney fees for the unsuccessful defense.

   At the trial, Rod conceded that Kasten had performed its obligations under the sales contract, but denied that it had committed a breach.  We should note here that in the testimony, both sides made liberal reference to negotiations and related matters occurring prior to execution of the contract.  The essence of Rod's twofold position[***11] in the trial court was: That it knew when it executed the sales contract -- having been so informed by Kasten and Annapolis Federal -- that a section of roads and storm drains was governed by the "public works agreement" of August 21, 1967 (frequently referred to as "Phase II") and its related performance bond. Rodriguez says he understood that since Kasten was "bonded" under those two instruments for "Phase II," Rod was not obligating itself under the sales contract to complete that portion of the work.

    The other theme presented by Rod which, as Kasten suggests, appears to be contradictory to its first, was that in the negotiation stage, it had been assured, principally by Annapolis Federal, that the "Phase II" roads [*325] and storm drains had already been completed.  The following colloquy in Rodriguez's testimony is revealing:

   "Why did you sign a contract then saying that you would use these funds for the completion of all paving and so forth in regard to streets and so forth of the subdivision?  A. It is my understanding that it had nothing to do with section two.  It was strictly for roads that had not been paved.

   "The words not bonded or bonded appear nowhere[***12] in this agreement, do they?  A. Not in that agreement, they do not appear.

   * * *

   "If you expected Kasten Construction to have any more obligations to do work in your subdivision, why didn't you say so in your agreement?  A. It was my interpretation -- I didn't expect Mr. Meeks [Kasten] to do anything except what he represent to me and that was that section two was completed and ready for me to start building.  . . ." (emphasis added)

   Considerable emphasis was placed below by Rod and its witnesses on the two letters we quoted earlier which had been received from the Public Works Department.  It is apparent from the record that those exhibits were seized upon for the contention that the "Phase II" work had been represented as completed. Interestingly enough, the record also discloses that Mr. Rodriguez "walked" the entire site and visited the Public Works Department before signing the sales contract; and that an experienced builder would have observed that the roads covered by the critical "public works agreement" and bond had not been completed and some were even in a raw state with trees yet standing.  Indeed, Mr. Rodriguez acknowledged that he made those observations, [***13] but says he nevertheless relied on the letters and bond.

   [*326] That the trial judge, in entering judgment for Rod, was also persuaded by the letters is clearly reflected by the concluding portion of his opinion in which he said:

   "Kasten argues that the contract is not ambiguous, and if it is, it must be construed strictly against Rod, who paid for its preparation.  It says Rod undertook to complete 'all' unfinished streets and storm drains, including those still not finished in Phase II.

   "The legal principles Kasten urges are honored ones, but not applicable here. 'All' is ambiguous, but only because of the Department of Public Works' letters Kasten submitted to Annapolis Federal.  From them, Annapolis Federal and Ivrey 'knew' that the work in Phase II was complete -- while Kasten knew in truth that it was not complete.  With Ivrey's understanding of the circumstances, 'all' could mean only the work remaining after [**17] Phase II, and would not include any work remaining to be done in Phase II.  Judgment will be entered for the Defendant." (emphasis added)

   Kasten contends here that the trial judge erred in deciding that the contested provision[***14] of the contract was ambiguous, and in relying upon other evidence to ascertain the intent of the parties.  It argues that since the contract was clear and unambiguous on its face in requiring Rod to complete "all" roads and storm drain work in Winchester Estates, the court should not have interpreted it according to what Rod says its understanding or intent was.

   It also contends that Rod was not entitled to rely on alleged representations by Kasten that the work had been completed, since a person of ordinary prudence would have known that the roads and storm drains in "Phase II" had not been completed by merely checking the county records and by a visual site inspection; and, [*327] in fact, that Rodriguez testified he learned from having "walked" the entire site that the work had not been completed.

   For its first contention in this Court, Rod also says that the contract is "clear on its face," but that it should be construed to mean that it only imposed upon Rod the obligation "to apply the $45,000 to the completion of paving."

   Alternatively, Rod urges that the "language creating an obligation to complete 'all' roads in the subdivision was ambiguous and required testimony [***15]to ascertain what roads were, in fact, intended by the parties." In this connection, it maintains that the assurances regarding the bond which had been posted by Kasten and the confirmation by Annapolis Federal -- predicated upon one of the public works letters -- that all "Phase II" paving had been completed, established that roads completed by Kasten before March 11, 1968 or those which it had obligated itself to complete by its contract with the county were excluded from the term "all" in the sales contract.

   We need not dwell upon the various statements and representations allegedly made to Rod and the extent to which, if at all, it was entitled to rely upon them; nor upon any intention or understanding Mr. Rodriguez may have acquired from that information, since we are of the view that the sales contract, including the part in question, is clear and unambiguous, thereby making resort to extrinsic evidence unnecessary and improper.  Nor, for the same reason, of course, are we required to deal with the myriad of legal issues that would follow from a consideration of that evidence.

   As Rod states, both sides are "as one" in recognizing that the objective test for interpreting[***16] contracts is followed in Maryland, U.S.I.F. Triangle v. Rockwood Dev. Co., 261 Md. 379, 275 A. 2d 487 (1971); Sands v. Sands, 252 Md. 137, 249 A. 2d 187 (1969); Slice v. Carozza Properties, Inc., 215 Md. 357, 137 A. 2d 687 (1958); the application of this test limits the Court to the "four corners" [*328] of the contract in considering what the intention of the parties was, Moore v. Modern Improvement Ass'n, 190 Md. 39, 42, 57 A. 2d 316 (1948). This rule is especially apposite here in view of the integration clause in the contract.

   In Slice v. Carozza, supra, Chief Judge Brune, speaking for the Court, said:

   "As we turn to the authorities, we may note first that the theory of 'objective law' of contracts has been almost universally adopted by this time. The written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite understanding, or unless there is fraud, duress or mutual mistake.  Ray v. Eurice, 201 Md. 115, 93 A. 2d 272. '* * * where there has been[***17] an integration of an agreement, those who executed it will not be allowed to place [**18] their own interpretation on what it means or was intended to mean.  The test in such case is objective and not subjective.'" 215 Md. at 368.

   The cardinal rule in the construction and interpretation of contracts is that effect must be given to the intention of the parties, unless it is inconsistent with some established principle of law, Hardy v. Brookhart, 259 Md. 317, 270 A. 2d 119 (1970); Cadem v. Nanna, 243 Md. 536, 221 A. 2d 703 (1966); Schapiro v. Jefferson, 203 Md. 372, 100 A. 2d 794 (1953). But, where a contract is plain and unambiguous, there is no room for construction, and it must be presumed that the parties meant what they expressed, Little v. First Federated Life, 267 Md. 1, 296 A. 2d 372 (1972); Kermisch v. Savings Bank, 266 Md. 557, 295 A. 2d 776 (1972); Devereux v. Berger, 253 Md. 264, 252 A. 2d 469 (1969). And, when [*329]the language of a contract is clear, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant, [***18] U.S.I.F. Triangle v. Rockwood Dev. Co., supra; Seldeen v. Canby, 259 Md. 526, 270 A. 2d 485 (1970); Katz v. Pratt Street Realty, 257 Md. 103, 262 A. 2d 540 (1970). In addition to excluding Rod's "understanding" or "interpretation" as the test of what was intended under the contract, adherence to the latter principle also means that neither the "understanding" of Annapolis Federal nor that of the scrivener is a proper standard.

   Unquestionably, the key to the interpretation of this contract is the construction of the word "all." In his opinion Judge Wray says that the word "all" is ambiguous, "but only because of the Department of Public Works' letters." But, as we have noted, the law of contracts, absent other considerations not here relevant, permits the use of extrinsic evidence only if the contract is ambiguous on its face.  If it is not ambiguous, we may not look elsewhere.  In this regard, the word "all" must be considered in its usual signification.  In the construction of contracts, words are to be given their ordinary meaning, Little v. First Federated Life, supra; Liller v. Logsdon, 261 Md. 367, 275 A. 2d 469 (1971); Coopersmith v. Isherwood, 219 Md. 455, 150 [***19]A. 2d 243 (1959).

   Surely, the words "completion of all paving" are not inherently uncertain; nor, apparently, was the trial judge of that opinion, having found the word "all" ambiguous "only because of the Department of Public Works' letters." To us, the meaning of the phrase is clear -- the purchaser shall complete all paving in the subdivision, and not, as the trial judge ruled, paving other than "Phase II." This conclusion is reinforced, moreover, if we observe the rule that the intention of the parties must be garnered from the terms of the contract considered as a whole, and not from the clauses considered separately, Perper v. Fayed, 247 Md. 639, 234 A. 2d 144 (1967); [*330] Wheaton Lanes v. Rinaldi, 236 Md. 525, 204 A. 2d 537 (1964); Sagner v. Glenangus Farms, 234 Md. 156, 198 A. 2d 277 (1964); Walton v. Hospital Association, 178 Md. 446, 13 A. 2d 627 (1940).

   In applying the last-mentioned principle, we note that the contract called for settlement only nine days after its execution, which strikes us as being somewhat hurried for a contract of these dimensions.  It also provided that Kasten was to "remove all its equipment from the premises within 24[***20] hours after settlement."

   The only obligation which remained for Kasten to perform after settlement under the express language of the contract was the responsibility for "grading, seeding, sidewalks, driveways which work" was to be done by Kasten for houses it was in the process of constructing when the contract was executed.  In this regard, the contract was explicit in binding Kasten to completion, even to the extent that the sum of $15,000, which represented all but $512.02 of the total consideration to be received by Kasten in the sale and was to be evidenced [**19]by a 90-day note, was to be applied by Rod to the completion of any part of that work not finished within 90 days after settlement.

   From all this emerges a clear intention that as of March 20, 1968, Rod was to effectively "take over" for Kasten and, without the loss of a stride, complete Winchester Estates; and this included any remaining "paving, etc." that required completion. The term "all" cannot be read to mean "only the work remaining after Phase II" without departing from the unambiguous language of the written contract.  Expressions such as "Phase II" are not mentioned in the contract, and the Court[***21] may not, under the guise of construction, rewrite the contract made by the parties, Compania De Astral v. Boston Metals Co., 205 Md. 237, 107 A. 2d 357, 49 A.L.R.2d 646 (1954).

   If there is a trace of ambiguity in the disputed clause, it is the "etc." which follows the words "paving" and [*331] "streets." Apart from Mr. Rodriguez's testimony that he knew this referred to storm drain work, Rod conceded that fact at oral argument before us.  Thus, we treat the contract as one calling for completion of all street paving and storm drain work by Rod.

   While our holding mandates a reversal of the judgment entered in favor of Rod and the entry of a judgment for Kasten, it does not entirely dispose of the case.  Although Kasten presented evidence of its damages, that issue manifestly was not reached by Judge Wray, and for that reason, quite naturally, was neither briefed nor argued orally by the parties in this Court.  In these circumstances, we shall remand the case for a determination of damages in the trial court.

   Judgment for costs reversed; judgment entered in favor of The Kasten Construction Company, Inc. against Rod Enterprises, Inc.; case remanded for a determination of [***22]  damages; costs to be paid by appellee.

DISSENTBY: MURPHY

DISSENT:  
Murphy, C. J., dissenting:

   Because I think that Rod's responsibility under the contract to complete ". . . all paving, etc. in regard the streets, etc. of the subdivision" was plainly limited to the $45,000 held in the escrow account, I must respectfully dissent from the view taken by the majority of the Court. 

ANNE ARUNDEL COUNTY, MARYLAND v. MARAGOUSIS et ux. 
No. 184, September Term, 1972
 
Court of Appeals of Maryland
 
268 Md. 131; 299 A.2d 797; 1973 Md. LEXIS 1094

 February  8, 1973, Decided

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

DISPOSITION: Case remanded for reconsideration in the light of the views herein expressed without affirmance or reversal, costs to be paid by appellant.

CORE TERMS:  acre, feet, zoning, temporary, site, net area, residential, accessory, horse, farming, setback, tract, beds, reasonable use, off-street, establishments, sanitorium, dwelling, parking, heading, stable, clubs, concessum, unconstitutional taking, Constitutional Law, substantive law, vested right, provisions of article, development plan, two hundred

COUNSEL: John M. Court, Assistant County Solicitor, with whom was Paul F. Borden, County Solicitor, on the brief, for appellant. [***2]

   Russell R. Reno, Jr., with whom were Robert A. Dietz, John M. Ebersberger, Jr., and Darrell L. Henry on the brief, for appellees.

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

OPINIONBY: SINGLEY

OPINION: [*132] [**798] In 1964, Steve Maragousis and Maria Maragousis, his wife (the Maragousises) purchased, for $25,000.00, an unimproved tract containing 3.191 acres in the First Assessment District of Anne Arundel County (the County).  At the time the Maragousises bought the property, about one acre, abutting the southwest quadrant of the intersection of Maryland Routes 2 and 214, was zoned Heavy Commercial; the remainder, Agricultural.  In a comprehensive rezoning of the First District by Bill 88-71 adopted by the County Council on 30 December 1971, the Maragousises' property was reclassified as Deferred Development District.

   The Maragousises, believing themselves aggrieved by the action of the County Council, sought declaratory relief in the Circuit Court for Anne Arundel County. n1 From a decree declaring §§ 13-320 through 13-320.4 of Article VI of the County's zoning regulations unconstitutional as[***3] applied to the Maragousises' property, the County has appealed.

n1 The Maragousises' expert witness testified that the value of the tract dropped from $70,000.00 to $6,380.00 as a consequence of the rezoning; Mr. Maragousis thought the value had dropped from $80,000.00 to $3,000.00 or $4,000.00.

   [**799] Anne Arundel County Code (1967, as supplemented) Art. VI, § 13-320, described the underlying purpose of the Deferred Development District classification:

   "Deferred development districts shall allow for orderly development in accordance with the general development plan by preventing premature piecemeal development that is non-comprehensive in nature, and is detrimental to the economic viability of the county.  Said districts shall allow for (a) the continuance of existing [*133] uses in areas where increased development should be deferred, (b) areas which are essentially rural in character, and (c) areas which, although designed for development in the general development plan, lack the essential[***4] public services for comprehensive development and are in need of more detailed study."

   This was followed by §§ 13-320.1 through 13-320.4 which contain an enumeration of permitted uses, including those permitted by special exception, and area and setback requirements:
 
"Section 13-320.1. Uses permitted.
 
(a) The following uses shall be permitted in DD -- Deferred Development Districts:
 
(1) Auction establishments (temporary uses only).
(2) Farming.
(3) Single family detached residences.
(4) Public recreational structures and uses.
(5) Temporary stables.
(6) Temporary stands for sale of produce raised on the premises.
 
(b) All uses proposed for areas having a water table of less than five feet (5') below surface must be approved by the Anne Arundel County Health Department.
 
"Section 13-320.2. Special exceptions.
 
(a) The following special exceptions shall be permitted in DD -- Deferred Development Districts:
 
(1) Amusement enterprises not including any permanent structures.
 [*134] (2) Outdoor drive-in theatres.
(3) Public utilities and uses.
(4) Sand and gravel operations.
 
(b) The following uses shall be permitted as special[***5] exceptions in Deferred Development Districts only in accordance with the conditions hereinafter set forth (in addition to other provisions of this heading and article XI of this Subtitle) . . . ."

   * * *
 
[There follow provisions, which have been omitted, respecting the granting of special exceptions for planned development of tracts of 100 acres or more for residential or industrial purposes and for planned commercial complexes of from 10 to 25 acres.]
"Section 13-320.3. Area requirements.

   Each principal structure together with its accessory structures and uses shall be located on a lot having a net area of not less than five (5) acres. Not more than five percent (5%) of the net area of any lot shall be covered by the principal structure, accessory structures and uses.
"Section 13-320.4. Setback requirements.

   No structure shall be located less than fifty feet (50') from a lot line . . . ."

   What disturbed the chancellor was the five-acre minimum lot requirement of § 13-302.3.  He found, and we agree, that a literal reading of this section would deprive the owner of a three-acre parcel of any reasonable use of his property, n2 which amounts to an unconstitutional[***6] taking [**800] without compensation, Spaid v. Board of County Comm'rs, 259 Md. 369, 387-88, 269 A. 2d 797 [*135] (1970); Poe v. Baltimore City, 241 Md. 303, 306-07, 216 A. 2d 707 (1966); Mayor and Council of Rockville v. Cotler, 230 Md. 335, 340, 187 A. 2d 94 (1963); Frankel v. City of Baltimore, 223 Md. 97, 103-04, 162 A. 2d 447 (1960), and see Kracke v. Weinberg, 197 Md. 339, 347, 79 A. 2d 387 (1951).

n2 It would appear that farming would be the only use permitted the Maragousises by Bill 88-71.

   However, after the case had been tried below, and after this appeal had been entered, § 13-320.1 and § 13-320.3 were amended by Bill 159-72, which by its terms, took effect on 12 January 1973, four days before the case came before us. As amended, § 13-320.1 now reads:
 
"(a) The following uses shall be permitted in DD -- Deferred Development Districts:
 
(1) Auction establishments (temporary uses only).
  
(2) All uses set forth in Section 13-303.1 of this Subtitle."[***7] 
 
Section 13-320.3 was expanded by the addition of a new Subsection (b):

   "(a) Each principal structure together with its accessory structures and uses shall be located on a lot having a net area of not less than five (5) acres. Not more than five percent (5%) of the net area of any lot shall be covered by the principal structure, accessory structures and uses.

   "(b) Notwithstanding the minimum lot requirements of this heading, a residential dwelling may be constructed on any separate parcel of property legally recorded prior to the effective date of this Subtitle, provided all other requirements of this Subtitle are met."

   The uses permitted by § 13-303.1, incorporated by reference, are those permitted in R A Districts:
 
[*136] "Sec. 13-303.1. Uses permitted.

   (a) The following uses shall be permitted in RA -- Agricultural Residential Districts:

   (1) Accessory buildings and uses.

   (2) Animal husbandry.

   (3) [Repealed]

   (4) Churches and ancillary uses (minimum site of two (2) acres).

   (5) Cluster development, in accordance with the provisions of sections 13-307 through 13-307.7, inclusive.

   (6) Dairies.

   (7) Dwellings, one-family detached.

   (8) Farm tenant[***8] houses.

   (9) Farming.

   (10) Fish and game hatcheries.

   (11) Forestry.

   (12) Fur farming (not less than fifty feet (50') from any lot line).

   (13) Golf courses.

   (13A) Home occupations.

   (14) Nursery farms (greenhouses).

    (15) Off-street parking, in accordance with the provisions of article VIII.

   (16) Private camps, for seasonal residence only.

   (17) Public parks, playgrounds, and other recreational areas.

   (18) Roadside stands (temporary seasonal structures selling only the produce grown on the premises).

   (19) Sale of Christmas trees (between December 5 and December 25).

   (20) Signs, in accordance with the provisions of article IX.

   (21) Swimming pools, community.

   (22) Swimming pools, private, in accordance with the provisions of section 13-300.7 (d) (11).

   [*137] [**801] (23) Wildlife preserves.

   (24) Unenclosed storage of manure or odor or dust-producing substances or uses (not less than ten (10) acres).

   (b) The following uses shall be permitted only in accordance with the conditions hereinafter set forth (in addition to the other provisions of this heading):

   (1) Country clubs, private clubs and service organizations, provided:

   (i) All buildings shall have a setback[***9] of not less than one hundred feet (100') from any lot line.

   (ii) Maximum coverage for all buildings (including off-street parking), located on the site shall be sixty percent (60%).

   (iii) Required off-street parking shall not be located in any required setback area.

   (2) Private educational institutions and bona fide, non-profit eleemosynary and philanthropic organizations or institutions conforming with the provisions of subsections (b) (1) (i), (ii) and (iii) of this section.

   (3) Hospitals, sanitoriums and nursing homes, provided:

   (i) Hospitals shall be situated on a site not less than two (2) acres, plus one (1) acre for each group of twenty-five (25) beds (or fraction thereof) exceeding fifty (50) beds.

   (ii) Sanitoriums and nursing homes shall have a minimum site of five (5) acres plus one (1) acre for each group of twenty-five (25) beds (or fraction thereof) exceeding one hundred (100) beds.

   (iii) Front, rear and side yards shall be not less than fifty feet (50') in width.
 
   (iv) Buildings (or sections thereof) for [*138] contagious, mental, drug or liquor addict cases shall be located not less than two hundred feet (200') from any lot line.

   (v) Sources of potential[***10] nuisance (including laundry operations, power plants, restaurants or cafeterias, kitchens, ambulance or emergency patient entrances, unloading areas for supplies and food, garbage loading areas, incinerators and animal laboratories) shall be located not less than two hundred feet (200') from any residential zoning lot, and not less than fifty feet (50') from any street intersection.

   (vi) Access drives shall be located not less than forty feet (40') from any residential zoning lot.

   (vii) Buildings with staff resident facilities shall provide an additional five hundred (500) square feet of usable lot area for each site resident.

   (viii) Voluntary hospitals or sanitorium establishments may be erected to a greater height than permitted in section 13-303.7; provided, that the front, side and rear yards shall be increased one foot (1') for each foot by which such building exceeds the applicable height limitation.

   (4) [Repealed]

   (5) Private residential piers and boathouses, in accordance with the provisions of section 13-300.16.

   (6) Stables (commercial, community and riding clubs), provided:

   (i) No stable shall be located on a tract of land less than two (2) acres, and there shall[***11] be one (1) additional acre for each horse kept in excess of two (2) horses but less than sixteen (16) horses. An additional one-quarter acre [*139] shall be required for each horse over fifteen (15).

   (ii) No structure enclosing horses shall be located less than fifty feet (50') from any nonresidential property, nor less than two hundred feet (200') from any residential property line.

   [**802] (iii) Manure shall be stored not less than fifty feet (50') from any property line, and not less than one hundred feet (100') from any dwelling on adjacent property.

   (7) Theatres, legitimate (only outdoor and/or sheltered, provided all such uses shall be temporary with no permanent improvements) . . . ."

   It has consistently been our policy to consider zoning cases on the state of the substantive law as it exists when the case is argued before us, Dal Maso v. Board of County Comm'rs, 264 Md. 691, 694, 288 A. 2d 119 (1972); Mandel v. Board of County Comm'rs, 238 Md. 208, 215, 208 A. 2d 710 (1965); Yorkdale Corporation v. Powell, 237 Md. 121, 124-28, 205 A. 2d 269 (1964), n3 and compare Springloch Area Citizens Group v. Montgomery County Board of Appeals, 252 Md. 717, [***12]723, 251 A. 2d 357 (1969). The amendment of § 3-320.1 and of § 13-320.3 marked the opening of an entirely new ball game, because the uses permitted by § 3-303.1 were obviously much wider in scope.

n3 A different rule is applicable to procedural changes, Luxmanor Citizens Ass'n, Inc. v. Burkart, 266 Md. 631, 644-45, 296 A. 2d 403 (1972).

   In its reply brief, the County pointed out that § 13.320.3 (b), added by Bill 159-72, had made it possible for the Maragousises to use their lot as a site for a residence.  In argument before us, however, the County conceded that the definition of "lot" contained in § 13-300.2 (47) of the County Code,
 
"[A] portion of a subdivision, or any other parcel [*140] of land (whether immediate or future), not including multifamily development"
 
clearly did not encompass the Maragousises' tract, which was not a portion of anything.  As a consequence, the County said, § 13-320.3, which reappeared as § 13-320.3 (a) in Bill 159-72, and required that each principal[***13] structure be located on "a lot having a net area of not less than five (5) acres" does not apply to the Maragousises' land, which now may be used for any of the uses permitted by § 13-303.1.

   Since neither this concessum nor Bill 159-72 was before the lower court, the whole picture has been drastically altered.  It may well be that the Maragousises are no longer denied any reasonable use of the property.  The mere fact that they may be denied the use they had in mind -- a gasoline filling station -- does not necessarily mean that they have been denied due process. Our cases have uniformly held that a restriction on use which results in economic loss to the landowner, absent his possession of some vested right, is not necessarily an arbitrary, unreasonable and capricious exercise of the zoning power, Montgomery County v. Laughlin, 255 Md. 724, 735, 259 A. 2d 293 (1969); Helfrich v. Mongelli, 248 Md. 498, 502-03, 237 A. 2d 454 (1968); Tauber v. Montgomery County, 244 Md. 332, 337, 223 A. 2d 615 (1966); Baltimore City v. Borinsky, 239 Md. 611, 622, 212 A. 2d 508 (1965); 1 Anderson, American Law of Zoning §§ 2.21-2.23, 88-105 (1968).

   Because of the change in circumstances[***14] resulting from the enactment of Bill 159-72 as well as from the County's concessum, we shall remand the case, without affirmance or reversal, for reconsideration.

   Case remanded for reconsideration in the light of the views herein expressed without affirmance or reversal, costs to be paid by appellant. 

GERARD C. WALLACE CO., INC. v. THE SIMPSON LAND COMPANY 
No. 138, September Term, 1972
 
Court of Appeals of Maryland
 
267 Md. 702; 298 A.2d 881; 1973 Md. LEXIS 1286

 January  15, 1973, Decided

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

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

CORE TERMS:  subcontractor, contract price, contractor, subcontract, completion, waived, right to file, promissory note, unequivocally, undersigned, plumbing, execute, waive

COUNSEL: Sebert H. Keiffer, with whom was Joseph F. Vallario, Jr., on the brief, for appellant.

   Bennett Crain, Jr., with whom were Hartman & Crain on the brief, for appellee.

JUDGES: Murphy, C. J., and McWilliams, [***2] Singley, Smith and Levine, JJ. Singley, J., delivered the opinion of the Court.

OPINIONBY: SINGLEY

OPINION: [*703] [**882] This is but another skirmish in the continuing battle between subcontractors, general contractors, and owners.

   While the relationship between them may perhaps be clouded, it is clear that sometime in May 1967, The Simpson Land Company (Simpson) as owner, and News Construction Co., Inc. (News) as contractor, commenced construction of a Holiday Inn Motel at Parole, Maryland. n1 In June 1967, John A. Simpson, president of Simpson and Leopold B. Boeckl, president of News seem to have persuaded Gerard C. Wallace, president of Gerard C. Wallace Co., Inc. (the Wallace Company) to undertake the performance of the plumbing subcontract on the [*704] project on the condition that 80% of the subcontract price would be paid upon completion, the remaining 20% to be evidenced by a six-months promissory note, which would be paid from rentals, a proposal made necessary by Simpson's cash position.  The Wallace Company would further agree to execute a release of lien when the 80% had been paid and a note for the remaining 20% delivered.  Except that there was no reference[***3] to the source of funds for payment of the note, all of this was ultimately incorporated in the subcontract between News and the Wallace Company.  It is the last provision which is the crux of this controversy.

n1 The appellant contends Simpson and News were joint venturers; Simpson, that the relationship was that of owner and general contractor. The appellant complains because the trial court made no findings as regards this and other facts.  We note that no motion for a statement of grounds for the court's decision was made under Rule 18 c.  We have reviewed the testimony and find that the facts alleged to be in dispute were not germane to the issue before the trial court.

   The Wallace Company performed its subcontract, signed a release of lien; received payment of 80% of the contract price, and News' note for $26,000.00, the remaining 20% of the contract price. When no payments in reduction of the note were received within 90 days of the completion of the work, the Wallace Company gave timely notice of its[***4] intention to assert a lien, and later filed its claim. n2 When six months had passed without payment, the Wallace Company filed a bill in equity in the Circuit Court for Anne Arundel County for the sale of the property to satisfy its lien.  We were told at argument that News by this time had become insolvent.  From an order dismissing the bill of complaint, the Wallace Company has appealed.

n2 Maryland Code (1957, 1972 Repl. Vol.) Art. 63, § 11 (a) requires that notice be given the owner within 90 days; § 23, that the lien must be claimed within six months of the completion of the work.

   The Wallace Company advances a many-faceted argument in support of its position that it should have prevailed.  In essence, however, its contention is that an owner cannot rely on a release of lien given for the sole purpose of permitting the owner to withdraw the balance of a loan commitment from a construction lender, and further, that the release of lien was not supported by consideration.

   Unfortunately for the Wallace Company, [***5] we agree with what must have been the chancellor's conclusion: that [*705] this contention simply finds no support in the facts.  The subcontract between News and the Wallace Company dated 21 June 1967 provided that the Wallace Company would perform the plumbing, heating, air conditioning and ventilation work for a base price of $130,000.00, and then provided:

    "Twenty per-cent of this contract to be withheld for six (6) months after completion. After 80% of the contract is paid, release of liens are to be executed.

   "[**883] Contractor to sign a promissory note for the remaining 20% of the contract price for a period of six (6) months from date of completion.

   "Contract price to be $130,000.00.  In the event subcontractor does not make 15% Overhead and profit, the contract price to be increased to a maximum of $132,000.00."

   It is undisputed that the Wallace Company had received $105,890.34 from News by 22 March 1968, and accepted News' note dated 7 June 1968, due six months from date, for $26,000.00 with interest at six per cent.  On 15 February 1968, when all but $3,850.00 of the $105,890.34 had been paid, the Wallace Company executed a waiver of lien, which[***6] provided, in pertinent part:
 
"TO ALL WHOM IT MAY CONCERN:

   * * *
 
"NOW, THEREFORE, KNOW YE, That we [Gerard C. Wallace Company] the undersigned for and in consideration of the sum of One Dollar and other good and valuable considerations, the receipt whereof is hereby acknowledged, do hereby waive and release any and all lien, or claim or right to lien on said above described building and premises [Holiday Inn Motel, Parole, Maryland] under the Statutes of the [*706] State of Maryland relating to Mechanics' Liens, on account of labor or materials, or both, furnished or which may be furnished, by the undersigned to or on account of the said contract for said building or premises."
 
This language is clear and unambiguous -- the right to claim a lien was unequivocally waived.

   What nettles the Wallace Company is that Simpson did not experience the cash shortage which it had anticipated; was able to pay News the full contract price of $624,000.00, either in cash or by joining in notes aggregating $15,967.33 given by News to cover balances owed certain subcontractors. That it did not join in the note given the Wallace Company is explained by the fact[***7] that the Wallace Company's name did not appear on a list given Simpson by News. There being no privity between Simpson and the Wallace Company, Simpson was under no legal obligation to do anything, Bounds v. Nuttle, 181 Md. 400, 405, 30 A. 2d 263 (1943).

   If the Wallace Company intended that the release of lien was to operate only in favor of the mortgage lender, it should have said so.  In Perper v. Fayed, 247 Md. 639, 641, 234 A. 2d 144 (1967), the language of the waiver was
 
". . . I do hereby waive, release and quit-claim in favor of each and every party making a loan on said real estate . . . all right that I may now or hereafter have to a lien upon the land and improvements.  . . ."
 
We held that the subcontractor had waived only its priority and not its right to file and enforce a lien.
 
   Instead of following Fayed's language, the Wallace Company chose to execute a general release, unqualified in its terms.  Consideration is found in the provisions of the contract itself, Cf. Sodini v. Winter, 32 Md. 130 (1870).

   [*707] It seems to us that this case is controlled by Port City Construction Corp. v. Adams & Douglass, Inc., 260 Md. 585, 587, [***8] 273 A. 2d 121 (1971). There, speaking through Chief Judge Hammond, we flatly held,

   "It is clear that there is no public policy against the waiver of the right to file a mechanics' lien (including a waiver to a prime contractor by a subcontractor) and that the law of Maryland contemplates with approval that there will be waivers."

   Order affirmed, costs to be paid by appellant. 

MARQUES t/a Glen News Bookstore v. STATE OF MARYLAND 
No. 80, September Term, 1972
 
Court of Appeals of Maryland
 
267 Md. 542; 298 A.2d 408; 1973 Md. LEXIS 1271

 January  4, 1973, Decided

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

DISPOSITION: Reversed in part and affirmed in part.  Remanded for the passage of an order conformable to the views expressed in this opinion.  Costs in this Court and in the court below to be paid by the appellant.

CORE TERMS:  film, injunction, obscene, search warrant, criminal prosecution, destruction, display, temporarily, restrained, usefulness, peep-show, arrest, ended, weapons, peep, Criminal Law, temporary restraining order, adversary hearing, obscenity, aforementioned, issuance, destroy, seize, First Amendment, criminal contempt, Maryland Rule, hard core pornography, motion picture film, joinder of issue, arrest warrant

COUNSEL: Bernard P. Jeweler, with whom were Gordon H. Levy and Edelman, Levy & Rubenstein on the brief, for appellant.

   John P. Stafford, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Edward F. Borgerding, Assistant Attorney General, Raymond G. Thieme, Jr., State's Attorney for Anne Arundel County, and David R. Cutler, Assistant State's Attorney for Anne Arundel County, on the brief, for appellee.

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

OPINIONBY: McWILLIAMS

OPINION: [*543] [**409] In October 1971, as an adjunct to his Glen Burnie bookstore, the appellant (Marques) was operating, for the [*544] delectation of the local yeomanry, [***4] a battery of "peep-shows" all conceded to be hard-core pornography and none bearing the seal of the Maryland State Board of Censors.  Since the law frowns upon this sort of thing, Code (1971 Repl. Vol.), Art. 27, §§ 417, 418 and 418A; Art. 66A (1970 Repl. Vol.), the police looked into Marques's activities and, in January 1972, the State's Attorney mounted an attack against him which was successful below.  Whence comes this appeal.

   The State's initial sortie took place on 18 January 1972.  It consisted of the issuance of an arrest warrant, a search warrant, an order requiring Marques to show cause within three days why the search warrant should not be executed, and an order temporarily restraining him from "disposing of, relinquishing possession of, or in any manner cutting, altering, splicing, destroying or mutilating . . . [11 motion picture films] for a period of 4 days or until the conclusion of the hearing [set for 21 January]." The warrants and the orders were served upon Marques on the same day, 18 January.

   On 24 January the State moved for an extension of the temporary restraining order. The ensuing order of court, passed that same day, recites that the court had been[***5] "advised as follows." There follow brief descriptions of ten of the eleven "peep-show" films and descriptions of two eight millimeter films sold by Marques to a [**410] policeman.  Excerpts from the court's order follow:

   "WHEREAS, immediately prior to a scheduled hearing before the undersigned . . . [set for 2:00 p.m., 21 January] counsel for . . . [Marques] appeared with the State's Attorney . . . and requested clarification of the nature of the proposed hearing as well as additional time in which to prepare his client's case, and

   "WHEREAS, it was agreeable with all parties present that such postponement be afforded and that the hearing when held, would be designed [*545] as an adversary hearing before a judicial officer of this court for the purpose of determining whether or not the aforementioned motion picture films were actually obscene and subject to seizure by the peace officers of this county, and whether or not . . . [Marques] by virtue of . . . [his] possession and display of said allegedly obscene film . . . [is] in fact, subject to arrest for possible violation of Article 27 section 418 . . . .

   "Now, therefore, it is this 24th day of January, 1972, [***6] by the Circuit Court for Anne Arundel County, in Equity, ORDERED that . . . [Marques and his employees] be, and the[y] . . . are hereby restrained from disposing of, relinquishing possession of, or in any manner cutting, altering, splicing, destroying or mutilating the aforementioned motion picture film as described in subparagraphs 2a-k [actually 2a-j] for a period to extend to and inclusive of February 3, 1972; unless counsel for . . . [Marques has] prior thereto filed joinder of issue and [has] request[ed] a hearing within one day thereof and unless otherwise temporarily extended.

   "This cause, unless prior thereto . . . [Marques] move[s] for hearing upon one day after joinder of issue, shall stand for hearing . . . at 10 A.M. on February 3, 1972, at which time . . . [Marques] is ordered to produce in court the films more particularly described in subparagraphs a through k [actually a through j] inclusive aforementioned.

   "It is hereby further ORDERED that the search and seizure warrant . . . [issued 18 January] . . . be, and the same is hereby quashed.

   [*546] "It is further ORDERED that the arrest warrant . . . [issued 18 January] be, and the same[***7] is hereby quashed and the bond remitted to . . . [Marques].

   "It is further ORDERED that the show cause order . . . [issued 18 January] and directed to . . . [Marques] is hereby stricken.

   "It is further ORDERED that pending the hearing on February 3rd, 1972 . . . [the State] shall be temporarily restrained from committing any threats of arrest of . . . [Marques] relating to the possession, sale, or distribution of said material hereinabove listed.

   "And it is further ORDERED that . . . [the police] are hereby temporarily restrained from harassing, threatening to arrest or otherwise persecuting [Marques] in any manner . . . [in his] operations pending the outcome of the hearing hereon . . . ."

   It should be observed that all of the motions, petitions and orders so far mentioned bear the identification "No. 20,707 Equity." (Emphasis added.)

   On 25 January the assistant State's Attorney filed, on behalf of the State, a petition in No. 20,707 Equity praying the issuance of "an injunction pursuant to Article 27, Section 418A." Additionally, after stating "the grounds for said petition," the State, in its prayer for relief, asked the court
 
(a) to enjoin the[***8] "further display, distribution or exhibition" of the films or copies thereof,
 
[**411] (b) to order the surrender of the films to a peace officer,
 
(c) to order the films to be held by the State as evidence of violations of § 418,
 
[*547] (d) to order the destruction of the films, pursuant to § 418A after their use as evidence of violations of § 418,
 
(e) to grant such other and further relief, etc.

   Upon this petition the court, on the same day, passed a show cause order.  At 9:43 a.m., on 3 February, Marques moved to dismiss the extension of the temporary restraining order passed 25 January.  He recited the allegation in the motion for the extension of the temporary restraining order "that there is pending an application for a Search and Seizure Warrant based on sworn affidavits of officers of the Anne Arundel Police Department and [that] there is probable cause to believe that . . . [Marques is] violating" § 418.  He went on to recite that the motion and the "order itself ostensibly were filed in . . . Equity under Section 418A . . . [which] being civil in nature, [he] therefore, is not subject to criminal prosecution . . . .  Wherefore [he[***9] says] the [pending] Application for Search and Seizure Warrant and the affidavits thereon [should] be dismissed so that . . . [he] can be guaranteed a prior adversary hearing to determine whether the alleged material is legally obscene by a judicial determination." The case came on for a hearing at 10:00 a.m., without any action having been taken on Marques's motion.  At the conclusion of the hearing on 4 February the court found the films to be "hard core pornography and obscene as a matter of law." The court "reiterate[d] that these proceedings are strictly civil in nature" and he cautioned against construing anything in his oral (and later written) opinion as reflecting his impression in respect of the guilt or innocence of Marques, his "finding having dealt solely with . . . [the films]." (Emphasis added.)

   By its order, signed and filed later the same day (4 February), the court adjudged the films to be "obscene within the meaning of" §§ 418 and 418A and restrained their "further exhibition, distribution or display." The concluding paragraphs of the order are as follows:

   [*548] "It is further ORDERED that . . . [Marques] give over to the . . . [police] [***10] each copy of such films . . . for the use of the State . . . as evidence of violation of . . . § 418 . . . to be held by the State until the usefulness of said films as evidence be ended.

   "It is further ORDERED that the State destroy said films in accordance with . . . § 418A . . . after the usefulness of said films as evidence be ended."

   On 10 February (six days after the filing of the order of 4 February) Marques filed his answer to the petition for injunction filed 25 January.  He denied the allegation in the paragraph relating to the sale of two films to the police and he denied that all of the films constituted violations of § 418.  He admitted that the hearing was "presumed to be an adversary hearing for the purpose of determining whether or not the . . . films are in fact obscene" but he stoutly declared that he could not "be subjected to arrest for possible violation of . . . § 418 . . . because § 418A . . . is several in nature and therefore does not subject . . . [him] to the criminal prosecution."

   Ten minutes later (on 10 February) Marques filed his appeal from the "orders and injunctions entered . . . on January 18 . . .; entered, extended and re-instituted[***11] on January 21 . . . and on February 4 . . . ."

   Marques harangues us with the sort of cant we have come to expect in obscenity cases.  While vaunting the obscenity of his films he drapes himself in a toga [**412] run up from patches of the First Amendment, n1 the Fifth Amendment, the Fourteenth Amendment, a hankering for a [*549] jury trial and the dolours he says are born of the denial thereof, impermissible prior restraint, and the denigration of § 418A.  We think these complaints were laid to rest in Village Books, Inc. v. State's Attorney for Prince George's County, 263 Md. 76, 282 A. 2d 126 (1971). However, we see some merit in his contention that although he may be vulnerable to attack under § 418 or § 418A, the State may not proceed against him simultaneously under both.  For the most part we shall confine our discussion to that aspect of the case.

n1 Obscenity is beyond the pale of First Amendment protection.  Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L.Ed.2d 1498 and Alberts v. California, 355 U.S. 852, 78 S. Ct. 8, 2 L.Ed.2d 60 (1957); Monfred v. State, 226 Md. 312, 173 A. 2d 173 (1961), cert. denied, 368 U.S. 953 (1962); Donnenberg v. State, 1 Md. App. 591, 232 A. 2d 264 (1967).

[***12]
 
   The trial judge thought, because in Village Books we declared § 418A to be a virtual carbon copy of the New York statute, that the comment of Mr. Justice Frankfurter, in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S. Ct. 1325, 1 L.Ed.2d 1469 (1957), provides support for his notion that the State may proceed under both §§ 418 and 418A at the same time.  Mr. Justice Frankfurter said, for the Court:
 
"It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law.  Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature's range of choice.  [Citation omitted.] If New York chooses to subject persons who disseminate obscene literature to criminal prosecution and also deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies." 354 U.S. at 441.
 
As we see it Mr. Justice Frankfurter did no more than say that the several states have a free[***13] hand in this regard; that they are not limited in the choice of weapons. If, however, a state elects to limit the manner in [*550]which its weapons are to be used we know of no reason why it should not be free to do so.  We think the General Assembly intended § 418A to be exclusively civil in nature and, by necessary implication, that it may not be subverted to uses ancillary to a criminal proceeding.

   Section 418A was first enacted by Chapter 382 of the Acts of 1961.  It is described in the title as an act to provide "for the creation, institution and maintenance of injunction proceedings to restrict the sale or distribution . . . [of] obscene books [etc.] . . . all of said section relating to the creation of said injunctive remedy." (Emphasis added.) The only mention of § 418 will be found in paragraph 1 of § 418A where the word "obscene" is defined to be "within the meaning of Section 418 of this Article [27]." The only sanction which may be imposed, apart from the issuance of an injunction, is a direction, in the order or judgment, to the defendant "to surrender to . . . the sheriff . . . [the obscene] matter" together with a direction to the sheriff [***14] "to seize and destroy the same." If the Legislature had intended the obscene matter to serve an evidentiary purpose before its destruction it could quite easily have said so.  That it did not so intend acquires additional plausibility in that seven years later, by Chapter 619 of the Acts of 1968, it repealed § 418A and re-enacted it.  To be sure, it was re-enacted "with amendments," but the only amendment was the addition of the phrase "including a motion picture film or showing."

   Today's holding might make us a bit uneasy if, by its election to proceed under [**413] § 418A, the State thereby had foreclosed the initiation of any other or further actions against Marques, whether civil or criminal.  But we think the State is not helpless.  There seems to be no dispute about the sale to a policeman of two films n2 conceded to be hard core pornography. We think they are and the trial judge so found.  Both were purchased well before [*551] this case was docketed, the first on 25 October 1971, the second on 7 January 1972.  They no longer belong to Marques.  They have been, since their purchase, the property of the State.  They are not necessarily subject to destruction under[***15] § 418A.  We think either of them well might provide the basis for criminal action against Marques.

n2 Identified in Paragraph 3a and 3b of the order of 24 January 1972.

   Moreover, we see no reason why the State cannot prosecute Marques for violating § 2 of Art. 66A.  It was conceded at argument that none of the films had been submitted to the Maryland State Board of Censors for approval.  Sanza v. Maryland State Board of Censors, 245 Md. 319, 226 A. 2d 317 (1967), swept away any doubt that the films used for the "peep shows" are within the purview of Art. 66A.  The same result was reached a short time ago by Judges Sobeloff, Blair and Young in Star v. Preller, Civil No. 72-27-Y (D.C. Md. October 1972).

   The complaint that the signing of the petition for an injunction by an assistant State's Attorney was a violation of § 418A is without merit.  Moxley v. State, 212 Md. 280, 285, 129 A. 2d 392 (1957). The same is true of Marques's final contention that Maryland Rule 707 f 2 has been violated. n3 If[***16] true his redress, if he has any at all, lies in an application to the circuit court for the citation of the violator.

n3 "A person who discloses, prior to its execution, that a search warrant has been applied for or issued, except so far as may be necessary to its execution, or a public officer or employee who discloses, after the execution of a search warrant the contents of the warrant or any other papers connected therewith including an inventory, except by service pursuant to this Rule or by court order pursuant to section e of this Rule, may be proceeded against for criminal contempt of court."

   Since we think it was error for the learned trial judge to direct the sheriff to postpone the destruction of the "peep show" films until their usefulness as evidence of a violation of § 418 "be ended," we shall reverse that aspect of his order of 4 February 1972.  The remainder will [*552] be affirmed.  However, since the 11 "peep show" films are still in the possession of the State it will not be necessary[***17] for the sheriff to seize them; a direction to destroy them should suffice.

   Reversed in part and affirmed in part.

   Remanded for the passage of an order conformable to the views expressed in this opinion.

   Costs in this Court and in the court below to be paid by the appellant. 

THE L AND V COMPANY v. ASCH, Trustee for The Revel CraftManufacturing Company 
No. 85, September Term, 1972
 
Court of Appeals of Maryland
 
267 Md. 251; 297 A.2d 285; 1972 Md. LEXIS 667; 11 U.C.C.Rep. Serv. (Callaghan) 676

 December  6, 1972, Decided

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

DISPOSITION: Order of April 6, 1972, affirmed, the costs to be paid by the appellant. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant sought review of a decision of the Circuit Court for Anne Arundel County (Maryland), which denied it a preferred claim in a receivership case following an assignment by appellant for the benefit of its creditors pursuant to Md. Code Ann. § 9-203 (1)(b) and § 9-105 (1)(h).

OVERVIEW:  Appellant sought review of a decision of the lower court, which denied it a preferred claim in a receivership case following an assignment by appellant for the benefit of its creditors. The court affirmed. The court found that the chattel mortgage executed by debtor after the assignment of assets to the trustee could not serve as a security agreement. Whether appellant had an enforceable security interest on the basis of the notes and financing statement alone which would have entitled it to a preferred claim was the only issue left for the court. The court determined that filing the financing statement may have indicated the existence of a security agreement and, if it had contained language which granted to the creditor a security interest, it may have then served both as a financing statement and a security agreement, but that no language in the Uniform Commercial Code made a financing statement, without words granting a security interest, the equivalent of a security agreement. The court found that the promissory notes did not purport to create a security interest in debtor's chattels and other personal property and hence appellant received no such interest.

OUTCOME:  The court affirmed upon a finding that appellant received no security interest in the chattels and other personal property of the debtor where the chattel mortgage executed by debtor was ineffective, the promissory notes did not purport to create a security interest.
 
CORE TERMS:  financing statement, security interest, security agreement, secured party, recorded, chattel mortgage, enforceable, deed of trust, personal property, assignor, great weight, execute, receivership, ineffective, collateral, signature, evidenced, supplied, purport, repaid, loaned, minutes

CORE CONCEPTS -  

Commercial Law (UCC): Secured Transactions (Article 9): Assignments
Commercial Law (UCC): Secured Transactions (Article 9): Default & Bankruptcy
The trustee acquires all rights which the assignor had in the property, subject only to the encumbrances which existed at the time of the assignment.

Commercial Law (UCC): Secured Transactions (Article 9): Third Party Rights
See Md. Code Ann. § 9-203 (1)(b).

Commercial Law (UCC): Secured Transactions (Article 9): Security Agreements
A security agreement is defined as an agreement which creates or provides for a security interest. Md. Code. Ann. § 9-105 (h).

Commercial Law (UCC): Secured Transactions (Article 9): Financing Statements
Commercial Law (UCC): Secured Transactions (Article 9): Security Agreements
It is not possible for a financing statement which does not contain the debtor's grant of a security interest to serve as a security agreement.

Commercial Law (UCC): Secured Transactions (Article 9): Financing Statements
A financing statement is not a recorded lien or evidence of obligation. A financing statement does not purport to be anything more than a method of giving notice of the probability that the secured party has a security interest in the stated collateral.

Commercial Law (UCC): Secured Transactions (Article 9): Financing Statements
Commercial Law (UCC): Secured Transactions (Article 9): Security Agreements
Md. Code Ann. § 9-402(1) states that a copy of the security agreement is sufficient as financing statement if it contains the required information and is signed by both parties. The security agreement contains a grant of security interest to the creditor and is evidenced by the debtor's signature.

Commercial Law (UCC): Secured Transactions (Article 9): Filing
Commercial Law (UCC): Secured Transactions (Article 9): Financing Statements
Commercial Law (UCC): Secured Transactions (Article 9): Security Agreements
The filing of a financing statement may indicate the existence of a security agreement and, indeed, if it contains language which grants to the creditor a security interest, it may then serve both as a financing statement and a security agreement. There is no language in the UCC to make a financing statement, without words granting a security interest, the equivalent of a security agreement.

COUNSEL: Leon H. A. Pierson, with whom were Pierson & Pierson on the brief, for appellant.

   Mitchell Stevan, with whom was Howard A. Rubenstein on the brief, for appellee.

JUDGES: Barnes, Singley, Smith and Digges, JJ., and William J. O'Donnell, Associate Judge of the Supreme Bench of Baltimore City, specially assigned. Barnes, J., delivered the opinion of the Court.

OPINIONBY: BARNES

OPINION: [*252] [**285] The appellant, The L and V Company (L and V), was denied a preferred claim on April 7, 1972, by order of George Sachse, J., of the Circuit Court for Anne Arundel County, in a receivership case following an assignment by L and V for the benefit of its creditors. [***3] The principal question is whether or not L and V's financing statement perfected an enforceable security in the assets of Revel Craft Manufacturing Company, the insolvent debtor (Revel), pursuant to Maryland Code (1957, 1964 Repl. Vol.) Art. 95B, § 9-203 [**286] (1) (b) and the definition set forth in § 9-105 (1) (h), the Uniform Commercial Code (UCC).

   On December 15, 1968, the President of L and V, the appellant, was authorized by the Board of Directors to lend up to $200,000 to Revel.  Later that day, the President of Revel was authorized to borrow up to $300,000 for the corporation "and to give a note or notes as security therefor . . . ." n1

n1 In copies of the minutes of Revel authorizing the transaction, the language was "notes and [vs. "as"] security therefor" (Emphasis supplied.); but counsel for L and V, with commendable candor, stated at the argument before us that the word "as" was used in the original minutes.

   Pursuant to this arrangement, a total of $142,500 was loaned between [***4]December 31, 1969, and February 21, 1970.  A total of $67,500 had been repaid as of February 12, 1970, when three notes were executed in the amounts [*253] of $30,000, $40,000 and $5,000, respectively, for the balance of $75,000.  A security agreement, however, was not executed at this time.  These notes were payable on demand and authorized any attorney of any court of record to confess judgment against Revel.  An interest rate of 8% per annum was stated, but no part of the principal or interest has been repaid.

   On October 28, 1969, prior to the making of the three notes of February 12, 1970, a financing statement was recorded among the records of the Circuit Court for Anne Arundel County, showing "The Revel Craft Manufacturing Company" as debtor and "The L and V Company" as the secured party. It covered "All of the furniture, furnishings, machinery, fixtures, new materials for manufacture, incomplete work in process, finished products on the premises (before shipment), monies on hand and in banks, and accounts receivable, belonging to the Revel Craft Manufacturing Company and being located at its premises at Arnold, Maryland."

   There is no date of execution of the financing[***5] statement; but it is signed by representatives of Revel, the debtor, and L and V, the secured party. There was evidence in the record to show that the financing statement was signed prior to the making of the three notes in question.

   On July 29, 1971, the Revel Craft Manufacturing Company executed a deed of trust for the benefit of its creditors to Jerome M. Asch, Trustee, the appellee in this case.  The Circuit Court for Anne Arundel County assumed jurisdiction over the deed of trust proceedings on July 30, 1971.  Subsequently, on October 1, 1971, Revel executed a chattel mortgage to L and V, which covered in detail the same assets as were described in the financing statement. L and V then filed a petition for a preferred claim with the court on November 24, 1971, apparently based on the chattel mortgage, the three notes totalling $75,000 and the financing statement. This petition was denied by order of George Sachse, J. of the Circuit Court for Anne Arundel County on April 7, 1972.  We affirm that order.

   [*254] The chattel mortgage executed after the assignment of assets to the trustee cannot serve as a security agreement. After executing a deed of trust for the benefit[***6] of creditors, the assignor has no rights or title to the property which he can convey or encumber.  The trustee acquires all rights which the assignor had in the property, Tatelbaum v. Pantex Mfg. Corp., 204 Md. 360, 104 A. 2d 813 (1954), subject only to the encumbrances which existed at the time of the assignment.  Kellas & Co. v. Slack & Slack Co., 129 Md. 535, 99 A. 677 (1916). After the assignment, Revel could not execute a chattel mortgage effective against the trustee on the property already held by the trustee.

   The sole issue presented to us, then, is whether the appellant, L and V, had an enforceable security interest on the basis of the notes and financing statement alone [**287] which would entitle it to a preferred claim.  We hold that L & V cannot have an enforceable security interest because there was no security agreement signed by the debtor, Revel, as required under Art. 95B, § 9-203 (1) (b).

   Section 9-203 (1) (b) provides: "a security interest is not enforceable against the debtor or third parties unless . . . [t]he debtor has signed a security agreement." A security agreement is defined in Section 9-105 (h) as "an agreement which creates or provides[***7] for a security interest." These sections of the Uniform Commercial Code have been consistently interpreted by courts as requiring a writing in which the debtor grants a security interest to the security party.  In the opinion of the leading case of American Card Co. v. H.M.H. Co., 97 R. I. 59, 196 A. 2d 150 (1963), it was stated:

   ". . . it is not possible for a financing statement which does not contain the debtor's grant of a security interest to serve as a security agreement." (Emphasis supplied.)
97 R. I. at 62, 196 A. 2d at 152.

   The great weight of authority supports the holding in [*255] American Card.  See Mitchell v. Shepherd Mall State Bank, 458 F. 2d 700, 703 (10th Cir. 1972); Scott v. Stocker, 380 F. 2d 123, 127 (10th Cir. 1967); Mid-Eastern Electronics, Inc. v. First National Bank of Southern Maryland, 380 F. 2d 355, 356 (4th Cir. 1967); In re Carmichael Enterprises, Inc., 334 F. Supp. 94 (N.D. Ga. 1971); In re Dean & Jean Fashions, Inc., 329 F. Supp. 663 (W.D. Okla. 1971); In re Mann, 318 F. Supp. 32, 34 (W.D. Va. 1970); In re Platt, 257 F. Supp. 478 (E.D. Pa. 1966); Evans v. Everett, 279 N. C. 352, 183 S.E.2d 109 [***8](1971); Needle v. Lasco Industries, 10 Cal. App. 3d 1105, 1108, 89 Cal. Rptr. 593, 595 (1970); Kaiser Aluminum & Chemical Sales, Inc. v. Hurst, 176 N.W.2d 166, 167 (Iowa 1970); General Electric Credit Corp. v. Bankers Commercial Credit, 244 Ark. 984, 986-87, 429 S.W.2d 60, 62 (1968); M. Rutkin Electric Supply Co. v. Burdette Electric, 98 N. J. Super. 378, 384-85, 237 A. 2d 500, 504 (1967); In re Tile Unlimited, Inc., 8 U.C.C. Rep. 750 (Bankruptcy Ct. W.D. Wis. January 1971); In re Weiner's Men's Apparel, Inc., 8 U.C.C. Rep. 104 (Bankruptcy Ct. S.D. N.Y. March 1970); In re Schreiber, 7 U.C.C. Rep. 365 (Bankruptcy Ct. W.D. Wis. November 1969); In re Nottingham, 6 U.C.C. Rep. 1197 (Bankruptcy Ct. E.D. Tenn. September 1969); In re Rand, 6 U.C.C. Rep. 1129 (Bankruptcy Ct. D. Me. August 1969); In re Center Auto Parts, 6 U.C.C. Rep. 398 (C.D. Calif. August 1968); In re Martronics, Inc., 2 U.C.C. Rep. 364 (Bankruptcy Ct. D. Conn. November 1964); In re Freese, 2 U.C.C. Rep. 656 (Bankruptcy Ct. E.D. Pa. August 1964).

   Although we have not previously ruled upon the question presented in this appeal, two of our prior decisions contain some indication[***9] of our opinion in regard to the separate functions of a financing statement and a security agreement. In Plemens v. Didde-Glaser, Inc., 244 Md. 556, 563, 224 A. 2d 464, 468 (1966), we considered a filed financing statement to determine if it was effectively executed and filed.  Judge Marbury, for the Court, stated:
 
[*256] "No personal liability is created by the execution of a financing statement. The creation of liability between the parties is the purpose of the execution of a security agreement or other instrument.  The financing statement is a paper separate and apart from the security agreement itself, although a copy of the agreement may suffice as the financing statement if it is signed by both parties and meets the other requirements of Section 9-402.  . . . A signed financing statement is filed for the purpose of showing that the statement is genuine and can be accepted for filing.  . . . The purpose of recording financing statements under the Code is to provide any interested party, not with all the information he needs to understand a security transaction, but only with the [**288] information that such a transaction has taken place and that the particulars[***10] may be obtained from the named secured party at the address shown as provided in Section 9-208."

   In Household Finance v. Bank Commissioner, 248 Md. 233, 239, 235 A. 2d 732, 735 (1967), we addressed ourselves to the question of whether a recorded financing statement, as such, was a recorded lien or evidence of obligation under the Maryland Industrial Finance Law, Code (1957, 1968 Repl. Vol.) Art. 11, §§ 163-205.  We concluded that in the absence of an outstanding security agreement, a recorded lien or evidence of obligation it was not inasmuch as, in the words of Judge Horney, for the Court:
 
"* * * there is no conflict between the provisions of § 197 (5) of the I.F.L. and the provisions of the U.C.C. for the simple reason that a financing statement is not a 'recorded lien or evidence of obligation' within the meaning of that section which, according to the commissioner, must be released upon the refinancing of [*257] a security transaction.  . . . the financing statement (in that it contains none of the characteristics of a formal lien such as the amount loaned, the maturity date and the time when installment payments are due) does not purport to be anything more[***11] than a method of giving notice of the probability that the secured party has a security interest in the stated collateral."

   See also the interesting comments of Professor Alphonse M. Squillante of the College of Law of Drake University in Commercial Code Review -- A Summary of Leading Decisions and Articles, 74 Commercial Law Journal 366 (December 1969). Commenting on In re Rand, supra, written by Conrad K. Cyr, Referee in Bankruptcy in Bangor, Maine, Professor Squillante states:
 
"The Code clearly indicates, in § 9-402(1) that a copy of the security agreement is sufficient as financing statement if it contains the required information (above) and is signed by both parties.  The security agreement contains a grant of security interest to the creditor and is evidenced by the debtor's signature. Thus the Code, apparently, wishes to protect the debtor by requiring a definite, clear, grant of a security interest to the creditor.  In a logical fashion, then, a financing statement, to serve as a valid security interest, must do likewise or grant the security interest. This can be accomplished by including the elements required by § 9-402, plus words indicating[***12] an agreement that the debtor wishes to extend to the creditor a security interest, in addition to signatures of both parties.  This would then, clearly, evidence an agreement between the parties of their intention to transform the financing statement and a security agreement."
 
Id. at 369-71.

   [*258] In view of the impressive array of authorities, supra, we will not depart from their holdings, especially in light of the statement by the General Assembly that one of the underlying purposes of the UCC is "to make uniform the law among the various jurisdictions," Art. 95B, § 1-102 (2) (c).

   Counsel for L and V, while admitting that the great weight of authority is opposed to its contention, nevertheless, forcefully urges us to decline to follow the holdings of the previously decided cases in other jurisdictions because those holdings place "an unfortunate gloss . . . upon the statute by over-technical courts." He points to the criticism of American Card by Professor Gilmore, one of the draftsmen of Article 9 of the UCC, in 1 Gilmore, Security Interests in Personal Property, at 347 (1965), as well as the critical comments in 6D Benders, Uniform Commercial [***13]  Code Service, Reporter's Digest 2-1680 (1972).

   In our opinion, these criticisms are not well founded.  The filing of a financing statement may indicate the existence of a security agreement and, indeed, if it contains language which grants to the [**289] creditor a security interest, it may then serve both as a financing statement and a security agreement. Plemens, supra. There is no language in the UCC to make a financing statement, without words granting a security interest, the equivalent of a security agreement. The granting words are necessary to indicate the intention of the parties to create a security interest; and in the absence of such words, it seems rather clear that the parties did not intend to create a security interest. See, e.g., In re Nottingham, supra. There is often a vast difference between what may happen and what does happen.  The instant case illustrates this.  The promissory notes did not purport to create a security interest in the Revel chattels and other personal property and hence L and V received no such interest.  This is pointed up by the ineffective attempt by Revel to execute a chattel mortgage purporting to give[***14] a security interest in the personal property [*259] after the assignment for the benefit of creditors had been executed by Revel.

   Order of April 6, 1972, affirmed, the costs to be paid by the appellant. 

LAZENBY et al. v. F. P. ASHER, JR. & SONS, INC. 
No. 33, September Term, 1972
 
Court of Appeals of Maryland
 
266 Md. 679; 296 A.2d 699; 1972 Md. LEXIS 774

 November  10, 1972, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed December 11, 1972; Denied December 29, 1972, and Opinion Modified.

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

DISPOSITION: Decree affirmed; appellants to pay the costs.

CORE TERMS:  deed, plat, conveyed, parcel, buyer, conveyance, seller, reformation, convey, grantor, particular description, metes, buy, prior deed, predecessors, beyond a reasonable doubt, job order, prevail, chancellor, convincing, recorded, disputed, granting clause, revocation, grantee, decree, conflicting clauses, civil action, contract of sale, parcels of land

COUNSEL: Richard N. Hambleton for appellants.

   Ronald A. Baradel, with whom were Hartman & Crain on the brief, for appellee. 

JUDGES: Murphy, C. J., and Barnes, Singley, Smith and Levine, JJ.  Smith, J., delivered the[***3] opinion of the Court.

OPINIONBY: SMITH

OPINION: [*680] [**700] Appellants, F. Marion Lazenby et al., (Lazenby) seek reformation of a 1956 deed from appellee, F. P. Asher, Jr. & Sons, Inc. (Asher).  Judge Sachse held in the Circuit Court for Anne Arundel County that they had not met their burden of proof.  We agree.

   The Lazenby group described themselves in the bill of complaint as "sole Stockholders, Principals, Officers, Directors and Trustees, surviving or otherwise of L. J. & P. Realty, Inc." (L. J. & P.), formerly a body corporate of the State of Maryland.
 
   L. J. & P. bought land in Annapolis, a part of which was located on McGuckian and Park Avenues.  The dispute here involves Lot 18 and part of Lots 3 and 17 of Block G on a plat of the McGuckian subdivision shown with hatch marks on the plat [**701] attached to this opinion which the reporter is directed to reproduce.  The deed conveyed two separate parcels of land. It referred to the land as having been "surveyed by J. R. McCrone, Jr., Inc. Registered Engineers and Land Surveyors, in November, [*681] 1956." Two plats were attached to and recorded with the deed. Both are by McCrone with a November, 1956, date. [***4]The job order number of McCrone shown on the plat involving the second parcel corresponds with that appearing on the job order to which we shall later make reference.  Both parcels of land were described in the deed by metes and bounds, courses and distances.  The dispute here involves the second parcel. The plat here reproduced is a copy of one of the plats attached to the deed except that we have drawn in the eastern boundary lines of Lots 3 and 18, the extension of the back line of those lots, and the hatch marks.  The description in the second parcel of the deed is exactly in accordance with the plat. That parcel is stated to be "all of Lots 4, 5, 6, 7, 14, 15 and 16 and part of Lots 3, 17, and 18, Block G as shown on the" plat of the McGuckian subdivision to which reference was made in the description.  The back reference for the second parcel stated that it was part of one conveyance to Asher (which it was) "and all of the conveyance from George McGuckian et al to F. P. Asher, Jr. and Sons, Inc.  . . . dated January 31, 1951 and recorded among the said Land Records in Liber J.H.H. 610, folio 347," which it was not since that conveyance included all of that part of Lot 3 here[***5] in dispute and all of Lots 17 and 18, portions of which are also in dispute.

   It is the contention of the Lazenby group that L. J. & P. was to have conveyed to it all of Lots 3, 17, and 18.  They seek the reformation of the deed accordingly.  This action was filed in 1970.

   We are advised that the background of this transaction is that three Annapolis professional and businessmen formed L. J. & P. to buy land then owned by Asher.  They knew that a bank wished to buy a part of Asher's property and they knew that Asher desired to leave Annapolis.  The ownership and management of Asher has changed since 1956.

   Louis N. Phipps, one of the principals of L. J. & P., testified that the existence of this triangular strip was discovered back about 1964 or 1965, stating:

   [*682] "It came directly to my attention when the American Legion had a buyer for their property and I believe Weidemeyer was their attorney . . . and the American Legion had a contract of sale to the buyer, this buyer found out after it was surveyed it didn't belong to the American Legion, it belonged to Asher or belonged to us because it was part of our property."
 
The American Legion post owned land immediately[***6] to the east of Lot 18. 

   There was a contract of sale between Asher and L. J. & P., but no one was able to produce the contract, nor did anyone relate precisely what the contract said.  The survey was procured by David Jenkins, another appellant and a member of the Lazenby group.  The job order of the surveyor was introduced into evidence.  It read in part as follows:
 
"Location of Property: McGuckian Estates subdivision Block D; Block G 3 to 7, 14 to 18.
"Work to be done: Survey part of Prop. as instructed by Rullman (10/26/56 Survey all of Prop. and set monuments at all corners.) SPD of area for Co. Trust.
"Coordinate: Letter: City I; Number: 17; Price Quoted.
"Remarks: L. J. & P. Realty Co. is buying Asher & selling part."
 
Rullman was the attorney for L. J. & P. who prepared the deed. He did not testify.

   The evidence of Lazenby included the fact that a realtor wrote a comprehensive letter of valuation as to the Asher land to one of the appellants which particularly described by words and by a sketch plat [**702] Asher's property which included the property here in dispute, that immediately prior to the deed from Asher to L. J. & P. a partial release of a mortgage[***7] on Asher's land in Anne Arundel County was executed which release included [*683]the disputed land as well as that described in the deed, and that after the recordation of the deed in question the disputed area disappeared from the assessment and tax rolls of Anne Arundel County.

   The chancellor found as a fact that at the time of the conveyance neither party knew that Asher owned the land, that L. J. & P. received the acreage it intended to receive in the transaction "regardless of whether or not it was all of the land owned by the seller," that the running of the diagonal line through Lots 3, 17, and 18 was intentional and not due to mistake, and that the intention was to convey part and not all of the lots.

   Under Maryland Rule 886 when we review a case tried without a jury the judgment of the lower court is not to be set aside on the evidence unless clearly erroneous and due regard is to be given to the opportunity of the lower court to judge the credibility of the witnesses.  In the ordinary civil action the burden of the plaintiff is to prove his case by a preponderance of the evidence.  In a case such as this to reform a deed, however, the burden is even higher since "[n]ot[***8] only must a mutual mistake be shown, but the precise agreement which the parties intended but failed to express must be proven beyond a reasonable doubt." Housing Equity Corporation v. Joyce, 265 Md. 570, 581, 290 A. 2d 769 (1972), and cases there cited.  In fact, Judge Mitchell for our predecessors in Brockmeyer v. Norris, 177 Md. 466, 473, 10 A. 2d 326 (1940), quoted 2 Pomeroy, Equity Jurisprudence § 859 at 1756-1757 (2d ed. 1892), which read the same as 3 Pomeroy, Equity Jurisprudence, § 859a (5th ed. Symons 1941).  The latter work states:

   "The authorities all require that the parol evidence of the mistake and of the alleged modification must be most clear and convincing, -- in the language of some judges, 'the strongest possible,' -- or else the mistake must be admitted by the opposite party; the resulting proof must be established beyond a reasonable doubt. [*684] Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty of the error." (Emphasis the author's.) Id. 353-54.
 
To the same effect see the other cases and authorities cited by Judge[***9] Mitchell.  Pomeroy goes on in the same section to state that although "it has been said that the evidence or the inferences to be drawn from the evidence must be clear, clear and satisfactory, clear and convincing, clear, convincing and unequivocal, full, clear, and decisive, strong and most satisfactory, and the like," which "such expressions obviously convey the same meaning," that "[t]he words 'beyond a reasonable doubt' or 'reasonable controversy,' used in some of the cases, are not to be interpreted in the sense that 'beyond a reasonable doubt' is employed in the criminal law.  Such expressions form no rule of law to direct courts."

   Lazenby here seizes upon the difference between the description and the "being" clause since the latter recited that the land being conveyed was "all" of the land described in a deed from McGuckian to Asher, when in fact all of that land was not embraced in the description.

   Some of the rules for construction of deeds were summed up for the Court by Chief Judge Brune in Adams v. Parater, 206 Md. 224, 111 A. 2d 590 (1955):
 
"[U]nless some positive rule of law is contravened, every part of a deed is to be given effect, if possible, [***10] and the intention of the parties must prevail." (Citing cases.) Id. at 231.

   * * *

   "A construction of one general clause which would at once nullify its two immediate, [**703] clear and specific predecessors should be avoided unless it is inescapable." Id. at 233.

   * * *

   "If, however, we entertained doubts as to the [*685] proper construction of the deed and were forced to rely upon a technical rule of construction, we believe that the rule which, in case of repugnancy, gives effect to the first of two conflicting clauses in a deed, should be followed in this case.  [Citing cases.] The most frequent application of this rule is in cases where the granting clause is held to prevail over the habendum.  . . . The reason for the rule suggested by Tiffany, Real Property, 3rd. Ed., Sec. 979, seems clearly applicable and pertinent here -- that it is 'to prevent the revocation by implication, by a later clause, of an earlier provision made in clear, explicit and unambiguous words, such a revocation being required to be in terms no less clear and explicit than those of the earlier provision.'" Id. at 236-37.

   In Cochrane v. Harris, 118 Md. 295, 84 A. 499 (1912),[***11] the deed intended to convey certain land in Cumberland.  The beginning of the granting clause recited that the grantors "ha[d] granted unto" the grantee "[a]ll our right, title and interest in and to the hereinafter described pieces or parcels of ground." (Trial court's emphasis in Cochrane.) After reference to a prior deed, then stating "and which is described as follows," the instrument proceeded to describe the land so conveyed which was less than all of the land in the prior deed. The question presented was whether the deed conveyed only the lots specifically described in it or whether it conveyed all of the land described in the prior deed. The trial judge saw significance in the language "hereinafter described pieces or parcels of ground," coupled with the fact that after the description the deed said "together with all and singular the improvements to said pieces or parcels of ground belonging," stating "[t]he 'said pieces or parcels of ground' are the three described and the same terms are used in the reference to the rents and also in the habendum clause." (Emphasis that of the trial court.) In sustaining the judgment of the trial court [*686] [***12]our predecessors referred to the case of Smith v. Sweat, 90 Me. 528, 38 A. 554 (1897). In that case the court said:

   "It is too well settled to require the citation of authorities that a particular description of premises conveyed, when such particular description is definite and certain, will control a general reference to another deed as the source of title.

   "So a clause in a deed, at the end of a particular description of the premises by metes and bounds, 'meaning and intending to convey the same premises conveyed to me,' etc., does not enlarge, or limit, the grant.  [Citing cases.] The exception to this rule is where the particular description of land by metes and bounds is uncertain and impossible; then a general description in the same conveyance will govern." (Citing cases.) Id at 533.

   Under the system prevailing in Maryland prior to the adoption of the Bond amendment to the Maryland Constitution in 1944, the trial judge in Cochrane in the Circuit Court for Allegany County was the Honorable Andrew Hunter Boyd, who was also at that time Chief Judge of this Court.  Following the reasoning and logic of Chief Judge Boyd in that case we note that in this deed[***13] the grantor purported to convey "[a]ll those lots or parcels of ground . . . described as follows" and the "to have and to hold" clause referred to "the above described property." (Emphasis added in each instance.)

   On this record we cannot say that the trial judge clearly erred when he [**704]concluded that neither grantor nor grantee knew that the grantor owned the disputed land here.  Here the land not only was precisely described by metes and bounds, courses and distances, but a plat from a recent survey, referred to in the deed, was attached.  It corresponded exactly with the deed. Surely, the representatives of the purchaser must have leafed through the deed. Had they done so it would have been [*687] obvious even to one not skilled in the matter of plats and conveyances that something less than all of Lots 3, 17, and 18 was being conveyed. Moreover, if the parties were at all familiar with the "lay of the land" which they were buying, it would be obvious from the plat that the easternmost line was running at an angle different from that which might have been expected had they examined the property in the field prior to purchase, and much different from[***14] that shown upon a copy of the recorded McGuckian plat which was appended to an appraisal obtained by the purchaser.  Therefore, bearing in mind the burden of the plaintiff in this sort of case to prove certainty of error, we find no error on the part of the chancellor when he said:
 
"But looking at this deed you could look at it forever and it would be, appear to be perfectly all right.  The only difference is when you went back to the McGuckian deed you found out that he owned all of those lots instead of parts of those three lots.  So the instrument certainly on that basis definitely is clear and under the circumstances to me there was no intention of the parties to sell more or the buyers to buy more than the seller actually had.  And again I feel that from all of the testimony, and I must restate the fact, that as far as I could see in determining from the testimony, it appeared and it's my belief that the seller did not know that he owned anymore than he conveyed and the buyer didn't know that the seller owned more than the buyer was acquiring.  And under those circumstances the buyer is not entitled to something that he never intended to buy and the seller never intended[***15] to sell."

   There was a petition for rehearing to which was attached a letter from Francis P. Asher, Jr., "President and majority stockholder of F. P. Asher, Jr. & Sons, Inc." at the time of the 1956 conveyance, not called as [*688] a witness at the trial, in which he stated "the company contracted to sell all of the property," that it was his concern to divest his company of all of the property, and that when he sold the controlling interest in Asher "none of [his] company's former holdings in Annapolis were included or intended to be included in the sale . . . as [he] had previously conveyed the same as [he] ha[d] indicated above." The motion for rehearing was denied and it is claimed here that the chancellor erred in denying that petition.  The matter is not before us because the appeal entered was "from the decree of the Honorable George Sachse of [the Circuit Court for Anne Arundel County] dated October 7, 1971." Were the matter properly before us, in order for Lazenby to be successful it would be necessary to show injustice to Lazenby or an abuse of discretion by the trial court.  Austin v. Austin, 234 Md. 393, 394, 199 A. 2d 380 (1964), and Holcomb v. [***16]  Fender, 203 Md. 480, 487, 101 A. 2d 814 (1954). The tender of the statement from Mr. Asher must be placed in the context of a motion for a new trial in a law case on the ground of newly discovered evidence.  2 Poe, Pleading and Practice § 338, at 323 (5th ed. Tiffany 1925), states on that subject, "and especially must it be made to appear that the alleged new evidence could not have been discovered in time for the trial for the exercise of reasonable care and diligence." We see no error.

   Decree affirmed; appellants to pay the costs.

   [*689] [**705] [SEE ILLUSTRATION IN ORIGINAL] 

POTOMAC SAND AND GRAVEL COMPANY v. GOVERNOR OF MARYLAND etal. 
No. 35 (Adv.), September Term, 1972
 
Court of Appeals of Maryland
 
266 Md. 358; 293 A.2d 241; 1972 Md. LEXIS 742; 2 ELR 20101

 July  6, 1972, Decided

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

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

CORE TERMS:  dredging, wetlands, gravel, sand, dredge, water, fish, Laws Of Maryland, Wetlands Act, police power, marshlands, acre, site, carrying, tidal, navigable waters, common law, bed, fine, regulation, navigation, depth, feet, natural resources, riparian rights, mean high tide, special law, riparian, river, exceeding

COUNSEL: James J. Doyle, Jr., with whom were John B. Jaske, Sherbow, Shea & Doyle and Victor H. Laws on the brief, for appellant.

   Henry R. Lord, Deputy Attorney General, with whom were Francis B. Burch, Attorney General, and Warren K. Rich, Special Assistant Attorney General, on the brief, for appellees.

   Amicus Curiae brief filed by Maryland Conservation Council et al., Timothy J. Bloomfield, George W. Wise and Alvin Ezrin on the brief.

JUDGES: Hammond, C. J., * and Barnes, McWilliams, and Smith, JJ., and Kenneth C. Proctor, Associate Judge of the Third Judicial Circuit, specially assigned.

* Hammond, C. 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.

[***5]

OPINIONBY: PER CURIAM

OPINION: [*360] [**242] On June 30, 1971, Potomac Sand and Gravel Company (Potomac Company) filed a bill for declaratory judgment in the Circuit Court for Anne Arundel County in which it requested that the Laws of Maryland (1971), Chapter 792; Code of Public Local Laws of Charles [*361] County (1969 Ed.), Article 9, section 337A (Chapter 792) be declared to be unconstitutional.

   The decree, from which this appeal was taken, was signed by Judge Evans on March 3, 1972, and implemented an opinion filed several days earlier.

   We adopt the excellent, careful and comprehensive opinion of the trial judge, which follows:

   "The Maryland Legislature on 28 May 1971 enacted Chapter 792 as a public local law of Maryland limited to the geographical boundaries of Charles County. Chapter 792 took effect 1 July 1971 and reads:

   "(a) It shall be unlawful to dredge for sand, gravel or other aggregates or minerals, in any of the tidal waters or marshlands of Charles County, providing that this section shall not conflict with any necessary channel dredging operation for the purposes of navigation.

   [**243] (b) Any person violating the provisions of this section shall, [***6]upon conviction thereof, be punished by a fine of not less than five hundred dollars ($500.00) nor more than twenty-five hundred dollars ($2,500.00), providing further that each day such offense continues shall be a separate violation of this Section and subject to penalties thereof."

   Potomac Company is engaged in the business of dredging sand and gravel found in Maryland and Virginia.  The sand and gravel is removed from deposits found in land owned by the plaintiff and from the beds of tidal waters surrounding that land.  It is floated on barges to the District of Columbia where it is sold for use primarily in the construction industry.

   Potomac Company is the owner of three parcels of land, the uses of which are at issue in the case at bar.  All three parcels are located in Charles County, Maryland, and all three are adjoined to or surrounded by State wetlands. State wetlands are the lands under the navigable waters of the State below the mean high tide, which [*362] are affected by the regular rise and fall of the tide.  Code, Article 66C, sec. 719 (a) (1970 Replacement Volume), also known as the Wetlands Act of 1970.  All three parcels are within the proscription of [***7]Chapter 792.

   1. The Mattawoman tract is an area of about 1015 acres on Mattawoman Creek. Dredging is proposed for 300 of these 1015 acres. Of the 300 acres, 70% are below mean high tide, or in other words are State wetlands. Code, Article 66C, sec. 719 (a); Bd. of Pub. Works v. Larmar Corp., 262 Md. 24, 277 A. 2d 427 (1971). The depth of the dredge sites at Mattawoman Creek is presently between two and twelve feet. Potomac Company proposed to dredge to an overall depth of fifty feet.

   Mattawoman Creek is one of ten main spawning streams supporting anadromous fish in the drainage system of the Potomac River. It is one of the finest freshwater marshes in the Upper Potomac Estuary, and is the only area along the Maryland shores where the rare native lotus (water lily) and [zizania aquatica] (wild rice) are to be found.  Its aquatic plants act as a rinsing agent by absorbing and using in their biological process pollutants, suspended dirt particles, and other inorganic materials that, in excessive amounts, cause conditions of aquatic overfertilization.  The vegetation is an important source of dissolved oxygen, food, and protection necessary for anadromous fish which utilize[***8] the marshes for resting and spawning each spring.

   Mattawoman Creek is a spawning area for yellow perch, white perch, striped bass and herring; in addition, sunfish, pike, shad, and catfish can be found there.  It is also a habitat for the bald eagle, black duck, mallard duck, deer, rabbit, mink, otter, beaver, and has one of the larger wood duck roosts.

   Potomac Company paid a total of $1126 property taxes in 1970 for its interests in the Mattawoman Creek property.  It is estimated that there are 10 million tons of sand and gravel in Mattawoman Creek which Potomac Company seeks to dredge.

   2. Craney Island, the total size of which alters due to [*363] the ebb and flow of the Potomac River, is located entirely within the Potomac River. While Potomac Company's deed recites Craney Island to be thirty acres (aerial photographs indicate a few trees protruding from the center of the Potomac River), Potomac Company acknowledges in its memorandum that actually no more than one acre of Craney Island is usually above water. Potomac Company paid taxes in 1970 on .26 acre -- a total of $48.53 property taxes for its interests in the Craney Island parcel.  The dredge site claimed by Potomac[***9] Company is 1400 acres. Of these 1400 acres, 700 acres are proposed to be actually dredged.  All 700 proposed acres are below mean high tide, or in other words are State wetlands. Code, Article 66C, sec. 719 (a); Bd. of Pub. Works v. Lamar Corp., supra.

   [**244] The Craney Island area is the habitat of diving ducks which dive beneath the water's surface to retrieve food.  Perch, shad, herring and bass fish are also found in the area of Craney Island.

   3. The Greenway Flats tract consists of two strips of land bordering on the Potomac River, one of which is ninety feet wide and the other five feet wide. Together they are 1.8 miles long.  The proposed dredge site is 1000 acres, all of which are below mean high tide, again constituting State wetlands as defined in Code, Article 66C, sec. 719 (a); Bd. of Pub. Works v. Larmar Corp., supra. Potomac Company paid $177.00 property tax in 1970 for its interest in this land.  It has dredged approximately 7.7 million tons of sand and gravel out of this site, leaving it 90% dredged.  The area has been dredged from a depth of 10 feet to a depth of 50 feet below mean low water, a depth which Potomac Company intends, if so permitted, [***10] to dredge all three areas.  The Greenway Flats tract is the only site presently being dredged by Potomac Company, and this is being done pursuant to a temporary order of this court.

   It is significant that in Potomac Company's deed of the Greenway Flats tract it is referred to as "Greenway Fishing Shore" and "Greenway Fishery".

   [*364] MARYLAND LAW RE: RIPARIAN RIGHTS AND RIGHTS TO SAND AND GRAVEL

   Prior to 1862 the rights of owners of riparian land in Maryland regarding the dredging, taking and carrying away of sand and gravel from the beds of navigable waters were primarily controlled by the common law. The common law provided that navigable waters were vested in the public:

   "Rivers or streams within the ebb and flow of tide, to high water mark, belong to the public, and in that sense are navigable waters; all the land below high water mark, being as much a part of the 'jus publicum', as the stream itself.  The owners of adjacent ground had no exclusive right to such lands, nor could any exclusive right to their use be acquired, otherwise than by an express grant from the State." Day v. Day, 22 Md. 530, 537 (1865).

   In 1862, the Maryland Legislature enacted Laws[***11] of Maryland (1862), Chapter 129, vesting riparian owners in Maryland "with rights and privileges not recognized by the common law", in particular the right to all accretions to riparian land by recession of water by natural causes or otherwise.  Day v. Day, supra, page 537; Laws of Maryland (1862), Chapter 129.

   Between 1862 and 1888, the common law's absolute prohibition on the taking of sand and gravel had deteriorated to the point that the Legislature of 1888 re-asserted its authority over the State's wetlands. It did so by enacting Laws of Maryland (1888), Chapter 362.  Not at all dissimilar to Chapter 792, the validity of which is at issue in the case at bar, but broader in scope, Chapter 362 was a blanket prohibition against anyone from digging, dredging, taking and carrying away any sand, gravel or other material from the bed of the Potomac River, from its mouth to the uppermost boundary line of Prince George's County. Chapter 362, as does Chapter 792, [*365] provided criminal sanctions for violations, except that unlike Chapter 792 which imposes a fine only, Chapter 362 imposed a fine, confiscation of dredge, boat or vessel used in dredging, and imposed imprisonment[***12] of up to six months. n1

n1 Section 1. Be it enacted by the General Assembly of Maryland, That it shall not be lawful for any person to dig, dredge, take and carry away any sand, gravel or other material from the bed of the Potomac river, from its mouth to the uppermost boundary line of Prince George's county, under a penalty of a fine not exceeding three hundred dollars, and confiscation of the boat, vessel, dredge and implements used in digging, dredging and carrying away such sand, gravel or other material, and imprisonment in the county jail for a period not exceeding six months, in the discretion of the court; one-half of said fine and one-half of the proceeds of the sale of such confiscated boat, vessel, dredge and implements to be paid by the sheriff to the informer, and the other half to the commissioners of the public schools for the county.

   Sec. 2. And be it enacted.  That this act shall take effect from the date of its passage.
Approved April 4, 1888.

   [**245] In 1900 the Legislature again slackened[***13] its absolute prohibition on the taking and carrying away of sand and gravel from the Potomac River by enacting Laws of Maryland (1900), Chapter 577.  Chapter 577 excepted riparian owners on the Potomac River from Chapter 362's prohibition and permitted them to take and carry away sand and gravel from the river bed subject only to non-interference with navigation, oystering and fishing. n2 This exception was extended in 1906, along with [*366] the 1888 prohibition, to apply to all navigable waters in the State of Maryland. n3 The prohibition of 1888 and its exception and extension were codified in 1957 by Laws of Maryland (1957), Chapter 498, as Article 27, sec. 485.

n2 244. It shall not be lawful for any person to dig, dredge, take and carry away any sand, gravel or other material from the bed of the Potomac River, from its mouth to the uppermost boundary line of Prince George's County, under a penalty of a fine not exceeding three hundred dollars, and confiscation of the boat, vessel, dredge and implements used in digging, dredging and carrying away such sand, gravel or other material, and imprisonment in the county jail for a period not exceeding six months, in the discretion of the Court; one-half of said fine and one-half of the proceeds of the sale of such confiscated boat, vessel, dredge and implements to be paid by the Sheriff to the informer, and the other half to the Commissioners of Public Schools for the county; provided, however, that it shall be lawful for any riparian owner of lands bordering on said Potomac River, or for any person or corporation with whom such owner shall have a contract in writing for the purpose, or for the agents, servants or employees of such person or corporation to dig, dredge, take and carry away sand, gravel or other material from the bed of said river opposite said lands from high water mark on the shore bordering on said lands to the outer line of the channel nearest said shore, subject to the laws of the United States relating to navigation. And provided, further, that none of the provisions of this section shall be deemed to interfere in any manner with the provisions of any law of the State of Maryland relating to the taking and catching of fish and oysters.

   Sec. 2. And be it enacted, That this act shall take effect from the date of its passage.
Approved April 7, 1900."

[***14] 

n3 Chapter 426, Laws of Maryland 1906.

   In 1970 the Legislature repealed Article 27, sec. 485, and replaced it with Laws of Maryland (1970), Chapter 241, Code, Article 66C, sec. 718 et seq. (Wetlands Act of 1970).  Under Section 721 of the Wetlands Act of 1970, it is unlawful for a riparian owner, without a license issued by the Board of Public Works, to dredge, take and carry away sand, gravel or other material from the bed of any of the navigable rivers, creeks or branches in Maryland.  Bd. of Pub. Works v. Larmar Corp., supra, page 53.

   Most recently, the Legislature enacted Chapter 792.  Chapter 792, as hereinbefore recited, is more restrictive than the permit procedure of the Wetlands Act of 1970, but less prohibitive in geographical scope than Chapter 362, Laws of Maryland 1888.

   Potomac Company has filed application for the appropriate permits for dredging at the three named sites in compliance with the Wetlands Act of 1970. Hearings were held in December 1970 and April 1971.  Decision is withheld, pending this litigation.

   The basic conflict here is whether the legislature by enacting[***15] Public Local Law, Chapter 792, may absolutely prohibit anyone, including Potomac Company, from dredging, taking and carrying away sand [**246] and gravel from the tidal waters or marshlands of Charles County.

   [*367] ISSUES

   The issues considered are: (1) whether Chapter 792 is unconstitutional as a taking of private property for a public use without just compensation, (2) whether Chapter 792 is a violation of equal protection by an arbitrary classification, (3) whether Chapter 792 is a violation of [the Constitution of Maryland,] Article III, sec. 33, [it being alleged that it is a] special law for which a general law, the Wetlands Act of 1970, is already enacted; and, (4) whether Chapter 792, as a penal statute, is unconstitutional as too vague and indefinite.

   (1)

   Chapter 792 is a legitimate exercise of the police power by the Legislature to regulate and restrain a particular use, that would be inconsistent with or injurious to the rights of the public, of property within the control of the State.  Such regulation and restraint is not an unconstitutional taking of private property for public use without just compensation, as prohibited by the Fourteenth Amendment[***16] of the United States Constitution and Article 23 of the Declaration of Rights of the Constitution of Maryland.

   An early Massachusetts case, Commonwealth v. Tewksbury, 11 Met. 55 (1846) responds on point.  In Tewksbury, the Legislature enacted a statute similar to Chapter 792:

   "Any person who shall take, carry away or remove, by land or by water, any stones, gravel or sand, from any of the beaches in the town of Chelsea, excepting, '& C.' shall, for each offense, forfeit a sum not exceeding twenty dollars, to be recovered, by complaint or indictment, in any court of competent jurisdiction."
 
This statute, as does Chapter 792, asserts an absolute prohibition on the taking, carrying away or removing of sand and gravel. Both are limited to single areas, [*368] Chelsea and Charles County respectively, and both apply penal monetary sanctions for violations.  In addition, the facts in Tewksbury and the case at bar are similar in that in both cases the statutes challenged were mere revisions of former statutes on the same subject. n4

 n4 See Note 1 and comments referred to.

[***17]

   The riparian owners in Tewksbury (p. 55) raised two issues expressly decided upon by the Court.  They asserted that as riparian owners in fee, the statute was not meant to apply to them.  Secondly, the defendants alleged ". . . if the statute did so prohibit the owner, for any purpose of public benefit, from taking gravel from his own land, it was a taking of the land for the public use . . ." without compensation, in violation of the Massachusetts Declaration of Rights and that inasmuch as the statute did not make provision for compensation, it was unconstitutional and void.

   The Court denied both arguments, holding that the statute applied to "any person" in the absence of any ground to imply an exception, and that the statute was not a taking, but a just and legitimate exercise of the police power of the Legislature.  Briefly, the Court found that whether or not the means adopted by the Legislature were proper or even constitutional, or within the powers of the Legislature, the unambiguous intent of the Legislature was to apply the statute to everyone.

   In the case at bar, the language of Chapter 792 (b) is clear that its prohibition applies to "any person" violating its provisions. [***18]

   The Court in Tewksbury (pp. 57-58) responded to defendant's contention that the [**247] statute was not a taking of property for public use:

   "All property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others, or to destroy or greatly impair the public rights and interests of the community; under the maxim of the common law, sic utere tuo ut alienum non laedas.  [*369] When the injury is plain and palpable, it may be a nuisance at the common law, to be restrained and punished by indictment.  As where one bordering on a navigable river should cut away the embankment on his own land, and divert the water course so as to render it too shallow for navigation. But there are many cases where the things done in particular places, or under a particular state of facts, would be injurious, when, under a change of circumstances, the same would be quite harmless.  As the use of a warehouse for the storage of gunpowder, in a populous neighborhood, or for the storage of noxious merchandise, or the use of buildings for the carrying on of noxious trades, dangerous to the safety, health or comfort of the community. [***19] Whereas, in other situations, there would be no public occasion to restrain any use which the owner might think fit to make of his property.  In such cases, we think, it is competent for the legislature to interpose, and by positive enactment to prohibit a use of property which would be injurious to the public, under particular circumstances, leaving the use of similar property unlimited, where the obvious considerations of public good do not require the restraint.  This is undoubtedly a high power, and is to be exercised with the strictest circumspection, and with the most sacred regard to the right of private property, and only in cases amounting to an obvious public exigency.  Still, we think, the power exists, and has long been exercised in cases more or less analogous."

   A change of circumstances as hypothicated in Tewksbury prompted the Maryland Legislature to enact Chapter 792.  Dredging which has been prohibited and permitted at various times and to differing degrees in Maryland is now prohibited by Chapter 792 in a manner which the Legislature deemed necessary to protect the public [*370] welfare.  This court does not question the Legislature's wisdom.  Cohen [***20]  v. Bredehoeft, 290 F. Supp. 1001, 1005 (1968) and cases cited therein.

   Since Tewksbury was decided in 1846, the [courts have] refined the limits of the police power and fashioned appropriate tests.  In Cohen v. Bredehoeft, supra , the Court said, at page 1005:

   "An exercise by the State of its police power is presumed to be valid when it is challenged under the due process clause.  Bibb v. Navajo Freight Lines, 359 U.S. 520, 529, 79 S. Ct. 962, 3 L.Ed.2d 1003 (1959). A party attacking an ordinance on this basis has the burden of establishing its invalidity beyond reasonable doubt.  Standard Oil Co. v. City of Gadsden, 263 F. Supp. 502 (1967). "

   In due process questions in which there is an alleged taking without compensation, the first consideration is whether the statute is a taking by eminent domain requiring compensation, or a regulation of use under the State police powers.

   Chapter 792 is a regulation of use under the State police powers.  In Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S. Ct. 987, 8 L.Ed.2d 130 (1962), the Supreme Court analyzed a fact pattern similar to that of the case at bar, except that it entailed pit excavation and dredging[***21] rather than dredging of State wetlands. In Goldblatt, the Court held that eminent domain was inapplicable.  Citing Mugler v. Kansas, 123 U.S. 623, 668-669, 8 S. Ct. 273, 31 L. Ed. 205 (1887), the Court said that a prohibition simply upon the use of a property for purposes that are declared by valid legislation to be injurious to health, morals [**248] or safety of the community, cannot be deemed a taking or an appropriation of property for public benefit.  The Court went on to say that the owner could continue to use his property lawfully and that the owner could sell his property.  The Court admitted that there were possible situations where regulation is so [*371] severe that it constitutes a taking, but that the burden is on the challenger of the statute, and the burden had not been met. 

   Potomac Company cites State v. Johnson, 265 A. 2d 711 (Me., 1970), as a case in which, under the Maine Wetlands Act, the Court held that denial to a dredging company of a permit to fill marshlands was an unconstitutional taking of private property without compensation.  Potomac Company reasons that if denial of a permit is a taking, then absolute prohibition certainly is a[***22] taking.

   State v. Johnson is inapplicable.  The Court limited its holding to the "facts peculiar to the case".  The case at bar is not concerned with a legislative sanction of dredging in Charles County with an administrative permit procedure.  Rather, the case at bar is a legislative prohibition.  Chapter 792 was enacted less than a year after the Wetlands Act of 1970, and was intended to be more restrictive than the Wetlands Act of 1970.  Finally, State v. Johnson is not the law in Maryland.  Bd. of Pub. Works v. Larmar Corp., supra, pages 54-55. 

    Looking to the language of Chapter 792, it is a prohibition limited to dredging sand, gravel or other aggregates or minerals.  This is a limitation upon a use of a property, not a taking.  Chapter 792 is a valid exercise of the police powers.  It is within the purview of the police powers for the State to preserve its exhaustible natural resources.

   In Zabel v. Tabb, 430 F. 2d 199, 203-204 (1970), a case involving the right of the Army Corps of Engineers to deny a permit to fill tidelands in Boca Ciega Bay in St. Petersburg-Tampa, Florida, the U. S. Court of Appeals, Fifth Circuit, discussed the importance of the environment[***23] and the effects of dredging:

   "In this time of awakening to the reality that we cannot continue to despoil our environment and yet exist, the nation knows, if the Courts do not, that the destruction of fish and wildlife [*372] in our estuarine waters does have a substantial, and in some areas a devastating, effect on interstate commerce. Landholders do not contend otherwise.  Nor is it challenged that dredge and fill projects are activities which may tend to destroy the ecological balance and thereby affect commerce substantially." n5

n5 While this is a commerce clause argument, the Court's recognition of the importance of environmental protection is impelling.

   In U. S. v. Moretti, Inc., 331 F. Supp. 151, 156-158, (D. C., Fla. 1971), the Court explains the importance of wetlands to the sustenance of wildlife, fish and local vegetation.  It then discusses the devastating effects upon them by the dredging of those wetlands. The opinion recites Justice Holmes in State of New Jersey v. State [***24]  of New York, 283 U.S. 336, 342, 51 S. Ct. 478, 75 L. Ed. 1104, 1106 (1931): "A river is more than an amenity, it is a treasure."

   The U. S. District Court, sitting in Maryland in Corsa v. Tawes, 149 F. Supp. 771, 774 (1957), a case prior to recent increase of public recognition of the degradation of our environment, has said:

   "It is said that natural factors, beyond the control of man, such as weather, currents, and salinity, predominantly determine the abundance of fish, and it is the plaintiffs' insistence that the amount of menhaden withdrawn by fishing, regardless of the means employed, is infinitesimal in relation to the present menhaden population.  Though there doubtless are differences of opinion among experts [**249] as to this and as to the need for an effectiveness of specific conservation measures, we cannot close our eyes to the manifold illustrations of experience, where man's over-exploitation has sharply diminished or even extinguished the supply of [*373] natural resources, wild game, and fish." n6 (Emphasis added.)
 
A few paragraphs later the Court went on to hold: "That a natural resource is subject to injury by causes beyond man's control[***25] is not a sufficient reason for us to require the State to refrain from such measures as may reasonably be taken to prevent unnecessary depredations by man."

n6 Corsa dealt with the prohibition of the use of purse nets to catch menhaden fish. It is strikingly similar inasmuch as Potomac Company argues that its dredging sites are infinitesimal in relation to the rest of the Potomac River.

   The current trend is for courts to consider the preservation of natural resources as a valid exercise of the police powers.  To determine the validity of a statute as an exercise of the police powers, the Supreme Court in Goldblatt, supra, page 134, citing Lawton v. Steele, 152 U.S. 133, 14 S. Ct. 499, 38 L. Ed. 385, 388 (1894) set forth a three pronged rule: (1) that the interests of the public generally, as distinguished from those of a particular class, require such interference; (2) that the means are reasonably necessary for the accomplishment of the purpose; and, (3) that the means are not unduly oppressive upon[***26] individuals.

   Chapter 792 is not in violation of the Lawton rule.  [It] does not benefit a particular class; rather, it benefits all citizens of Maryland.  The means utilized are reasonably necessary in light of the potential harm as testified to at trial by experts for both parties.

   It has already been noted that the sites in question support such species of fish as herring, American shad, hickory shad, striped bass, white perch and el perch, among others.  These fish are sources for commercial fishing and sport fishing throughout Maryland.  The testimony is undisputed that dredging would irreparably destroy the immediate marsh habitat, converting it into a deep-water habitat.  Consequently, those anadromous fish which spawn in shallow waters and which instinctively return each year to the same spawning areas would be [*374]deprived of such spawning areas with a concomitant loss of the benefits of their reproductive process.

   There was testimony that rare native vegetation at Mattawoman Creek would be destroyed by these particular dredging operations.  Dredging increases the water's turbidity.  Turbidity is the suspension of dirt particles in the water. A high turbidity[***27] reduces the amount of sunlight which reaches aquatic plants, which, through photosynthesis, produce oxygen for fish. The plants themselves are a food source for fish which would be reduced both due to the failure of plants to reproduce and by the smothering of plants by dirt particles.

   Testimony also showed that Mattawoman Creek supports a declining but still substantial wildlife which would be frightened away by dredging noises as well as driven away by a loss of an accessible food supply.  At Craney Island the diving ducks would be unable to readily retrieve their food fifty feet below the surface.
 
   Potomac Company argues that the permit procedure [of the Wetlands Act of 1970] is a less drastic protective step which would fully protect the State's interests, and that Chapter 792 deprives it of a procedural hearing.  The Legislature has declared, by Chapter 792, that the State's interests are best protected by a total prohibition of dredging of the State wetlands of Charles County.  This court will not pass upon the Legislature's wisdom.  A & H Transp., Inc. v. Baltimore, 249 Md. 518, 528, 240 A. 2d 601, 606 (1968) and cases cited therein; Cohen v. Bredehoeft, supra.[***28]

   Potomac Company argues that Chapter 792 is unduly oppressive in that the loss it [**250] will sustain -- the right to conduct a lawful business and the right as owners in fee to use its non-tidal lands and marsh freely, subject only to reasonable restrictions -- is too great a loss in relation to the public benefits protected by [that Act.]

   This argument is without merit.  Chapter 792 only restricts dredging in tidal waters or marshlands of Charles County, subject to necessary channel dredging for navigation. Tidal waters and marshlands are statutorily defined [*375] as State wetlands. By virtue of the Wetlands Act of 1970 and Bd. of Pub. Works v. Larmar Corp., supra, page 56, riparian owners are now in the same position as they were at common law, except that they may resort to the permit provisions of the Wetlands Act of 1970.  Under the common law, the riparian owner could not himself, nor could he grant a right to another to take sand and gravel from the waterfront or shore of his land below high water mark.  Potomac Co. v. Smoot, 108 Md. 54, 63-64, 69 A. 507, 510 (1908); Day v. Day, supra, page 537. In other words, Chapter 792 prohibits what the common[***29] law prohibited: dredging, taking and carrying away sand, gravel or other aggregates or minerals from State wetlands.

   Testimony and evidence demonstrate that all the proposed dredge sites except 30% within Mattawoman Creek are State wetlands. It is the law in Maryland that unused riparian rights are not entitled to constitutional protections so long as they remain unexercised prior to the Legislature's revocation.  Bd. of Pub. Works v. Larmar Corp., supra, page 50. Thus the State may regulate State wetlands which it is charged to protect, Kerpelman v. Bd. of Public Works, 261 Md. 436, 445, 276 A. 2d 56, 61 (1971); and the loss to Potomac Company is the 30% of potential sand and gravel at Mattawoman Creek.  [Even if there is such a loss (and there was evidence that access to such area could be gained from the land side), it] * * * is not of such magnitude as to justify a finding that Chapter 792 is an invalid exercise of the State police power.

   (2)

   Potomac Company argues that Chapter 792 is a denial of equal protection in that it prohibits dredging of sand and gravel from wetlands but does not prohibit the taking of sand and gravel from inland pit excavations in Charles [***30]County, and also in that it prohibits dredging sand and gravel in Charles County but not in neighboring counties.

   [*376] Chapter 792 is not violative of the Equal Protection Clause of the Fourteenth Amendment.  In Allied American Company v. Comm'r, 219 Md. 607, 623, 150 A. 2d 421, 431 (1959), the Court of Appeals, adopting the test established by the Supreme Court in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 79, 55 L. Ed. 369, 377 (1911), said:

   "Except where discrimination on the basis of race or nationality is shown, few police power regulations have been found unconstitutional on the ground of denial of equal protection, which may be what prompted the Supreme Court to call the equal protection clause the 'usual last resort of constitutional argument.'" (citing Buck v. Bell, 274 U.S. 200, 208, 71 L. Ed. 1000).

   Rephrasing the Supreme Court in Lindsley, the Court then declared:

   "The constitutional need for equal protection does not shackle the legislature.  It has the widest discretion in classifying those who are to be regulated and taxed.  Only if the grouping is without any reasonable basis, and so entirely arbitrary, is it forbidden. [***31] Abstract symmetry or mathematical nicety are not requisites.  The selection need not depend on scientific or marked differences in things or persons or their relations.  If any state of facts reasonably can be conceived that would sustain a classification, the existence [**251] of that state of facts as a basis for the passage of the law must be assumed.  The burden is on him who assails a classification to show that it does not rest on any reasonable basis.  Wampler v. LeCompte, 159 Md. 222, 225; Maryland Coal and Realty Co. v. Bureau of Mines, 193 Md. 627; Tatelbaum v. Pantex Mfg. Corp., 204 Md. 360, 370." (Citations supplied.)
 
In addition to the cases cited by the Court, more recent [*377] cases include, among others, McGowan v. Md., 366 U.S. 420, 6 L.Ed.2d 393, 81 S. Ct. 1101 (1961); Rebe v. State's Attorney, 262 Md. 350, 277 A. 2d 616 (1971); Director v. Daniels, 243 Md. 16, 49-50, 221 A. 2d 397, 416 (1966); Creative School v. Bd., 242 Md. 552, 219 A. 2d 789 (1966).

   Chapter 792 has an ecological purpose.  As has been shown, the protection of exhaustible natural resources is a valid exercise of the police powers.  The prohibition of[***32] anyone from dredging sand, gravel or other aggregates or minerals in the wetlands of Charles County is a rational regulation in light of the potential and real harm caused by dredging as testified to by experts for both parties.

   To substantiate its first argument, Potomac Company asserts that the case at bar is analogous to the facts in Beauchamp v. Somerset County, 256 Md. 541, 261 A. 2d 461 (1970), in which the Court of Appeals invalidated a Maryland statute exempting from taxes or assessments one of three American Legion Posts in Somerset County.

   Chapter 792 prohibits all dredging in the wetlands of Charles County by anyone, except necessary channel dredging for navigation. Chapter 792 was enacted to protect the wetlands of Charles County; it was not enacted to discontinue the taking of sand and gravel if such taking does not endanger the protected valuable wetlands of Charles County.  Thus, the different facts in Beauchamp distinguish it from the case at bar.

   In response to Potomac Company's second argument that Chapter 792 prohibits in Charles County what is not prohibited in a neighboring county, the Supreme Court in McGowan v. Md., supra, page 400, reiterated[***33] what it has previously held: that "the Equal Protection Clause relates to equality between persons as such, rather than between areas, and that territorial uniformity is not a constitutional prerequisite."

   The burden being upon the party who assails a classification, Potomac Company has failed to show that Chapter [*378] 792 does not rest on any reasonable basis.  Both arguments put forth by Potomac Company are dismissed.

   (3)

   Related to Potomac Company's equal protection argument is its assertion that Chapter 792 is a special law on a subject for which general legislation has been enacted and, therefore violates Article III, sec. 33 of the Constitution of Maryland.  The general legislation Potomac Company refers to is the Wetlands Act of 1970.

   In Beauchamp v. Somerset County, supra, page 548, the Court of Appeals, citing Norris v. Mayor & C. C. of Baltimore, 172 Md. 667, 681-682, 192 A. 531, 537 (1937), defined a public local law as a statute dealing with some matter of governmental administration local in character, in which persons outside of that locality have no direct interest.  A special law is defined as a special law for a special case.  The Court cited[***34] Montague v. State, 54 Md. 481, 489 (1880) for the proposition that Article III, sec. 33 ". . . was to prevent or restrict the passage of special, or what are more commonly called private Acts, for the relief of particular named parties, or providing for individual cases."

   [**252] In State v. County Comm'rs of Balto. Co., 29 Md. 516, 520 (1868), the Court of Appeals declared:

   "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, only in this that they are confined in their operation to certain prescribed or defined territorial limits, and the violations of them must, in the nature of things, be local."
 
See also Cole v. Secretary of State, 249 Md. 425, 240 A. 2d 272 (1968).

   [*379] While these definitions are not definitive, Chapter 792 resembles a public local law more than a special law. It does not provide relief of a particular named party.  It is true that Potomac Company may be the only party affected by Chapter 792, but if others wished[***35] to dredge the wetlands of Charles County, they too would be prohibited from doing so.  Chapter 792 is applicable to all persons, but is limited to Charles County because the wetlands sought to be protected by Chapter 792 are located in Charles County.  Chapter 792 is a valid public local law and is not in violation of Article III, sec. 33 of the Maryland Constitution.

   (4)

   Potomac Company argues that as a statute imposing criminal sanctions for violations, the terms of Chapter 792 are unconstitutionally vague and indefinite.  This argument is rejected.

   The standard established by the Supreme Court in U. S. v. Harriss, 347 U.S. 612, 617-618, 98 L. Ed. 989, 996-997, 74 S. Ct. 808 (1954) is: "The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." The Court goes on to say that if the general class of offenses to which the statute is directed is not plainly within its terms but can be made constitutionally definite by a reasonable construction of the statute, the Court is under a duty to give the statute that construction.  In[***36] McGowan v. Md., supra, page 400, the Supreme Court declared "people of ordinary intelligence" to be those in the position of the challenging parties applying a reasonable investigation or ordinary commercial knowledge.

   Potomac Company limits its challenge to the use of the word "marshlands" in Chapter 792, arguing that "marshlands" has not been used in any Maryland statute except Chapter 792.  However, "marshlands" is used repeatedly without confusion in Kerpelman v. Bd. of Public [*380] Works, 261 Md. 436, 439, 276 A. 2d 56, 58 (1971). It is not stretching the matter too far to construe the words of Chapter 792, "tidal waters or marshlands" as tidal waters or tidal marshlands, which are those lands "affected by the regular rise and fall of the tide", or "wetlands", as defined in the Wetlands Act of 1970, sec. 719 (a).

   Potomac Company has been dredging sand and gravel at least since 1960. Applying the rules of Harriss and McGowan, Potomac Company is in a position to know and understand with fair notice of what lands constitute tidal marshlands. Chapter 792 is not unconstitutionally vague or indefinite.  * * *."

   Decree affirmed, the appellant to pay the costs[***37] . 

SELINGER et al. v. GOVERNOR OF MARYLAND et al. 
No. 100 (Adv.), September Term, 1972
 
Court of Appeals of Maryland
 
266 Md. 431; 293 A.2d 817; 1972 Md. LEXIS 748

 June  30, 1972  
 July  20, 1972, Filed

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

CORE TERMS:  signature, referendum, practicable, circulated, veto, session, referendum petition, one-half, guaranteed, modified, consulted, estoppel, residents, election, voters, duty

COUNSEL: Elizabeth M. Eckhardt for appellants.

   Francis X. Pugh, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellees.

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

OPINIONBY: SINGLEY

OPINION: [*432] [**817] PER CURIAM ORDER

   For reasons to be stated in an opinion to be filed later, it is this 30th day of June, 1972

   Ordered by the Court[***3] of Appeals of Maryland that the order of the Circuit Court for Anne Arundel County dated May [**818] 18, 1972 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.

   On 30 June 1972, we entered a per curiam order, affirming an order of the Circuit Court for Anne Arundel County, which had denied the petitioners' bill for declaratory and injunctive relief.  We shall now state our reasons.

   On 8 April 1971, the General Assembly enacted House Bills Nos. 860 and 861, the Bills, n1 which, in substance, provided that under certain circumstances costs of school construction would thereafter be funded by the State. [*433]Norman Selinger and two fellow residents of Montgomery County, the complainants below and appellants here, endeavored to have both Bills brought to referendum.

n1 Chs. 625 and 624, respectively, of the Laws of 1971. Ch. 624 is codified as Code (1957, 1969 Repl. Vol.) Art. 77, § 130A, and amends §§ 124 (a), 124 (b) and 130 (b) of Art. 77; Ch. 625 authorized the creation of State debt in the amount of $150,000,000.00.

[***4]

   In their effort, they were caught in some constitutional interstices, from which they sought to be rescued below.  Maryland Constitution, Art. XVI, § 1 (a) provides:

   "The people reserve to themselves power known as The Referendum, 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;"

   Constitution, Art. XVI, §§ 2 and 3 continue, in pertinent part:
 
§ 2 "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.  . . . 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[***5] of Representatives of the United States."
§ 3 (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 [*434] preceding Gubernatorial election, of whom not more than half shall be residents of Baltimore City, or of any one County.  . . ." n2

n2 It seems to be conceded that 30,000 signatures would have been required.

   Then follows § 3 (b):
  
"If more than one-half [i.e., 15,000], but less 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 for filing the remainder of signatures to complete the petition shall be extended to the thirtieth day of the same month, with like effect."

   What happened here[***6] was this.  House Bills 860 and 861 were introduced at the 1971 Session of the General Assembly on 5 March 1971 as measures sponsored by the administration.  They were passed by the House of Delegates on 27 March 1971, and by the Senate on 8 April 1971.  The [**819] General Assembly adjourned on 13 April 1971.  The Bills were presented to the Governor, and signed by him on 24 May 1971.

   The appellants contend that they consulted knowledgeable people in the legislative branch, and were advised that the petitions designed to take a bill to referendum could not be signed until the Governor approved the bill. n3 The appellants would, but cannot, weave an estoppel from these gossamer strands, see C. E. Weaver v. Comptroller, 235 Md. 15, 22-23, 200 A. 2d 53 (1964); Comptroller v. Atlas Industries, 234 Md. 77, 84-87, 198 A. 2d 86 (1964).

n3 There was testimony that the appellants had consulted seven lawyers, each of whom told them "something different."

   The Governor signed the Bills on 24 May, and in consequence[***7] of the intervention of a holiday weekend, the appellants were confronted with the virtually impossible [*435] task of obtaining 15,000 signatures within a period of only several days.  They made no effort to do this, apparently forgetting the warning in Tyler v. Secretary of State, 229 Md. 397, 402, 184 A. 2d 101 (1962), that "those seeking to exercise the right of referendum in this State must . . . strictly comply with the conditions prescribed." Instead, they turned to the court, seeking a declaration that the enactment of the Bills was unconstitutional by reason of the fact that when the Governor signed the Bills on 24 May, there was an automatic denial of the 30 day period for the collection of signatures before 1 June, which in their view is guaranteed by Constitution, Art. XVI, §§ 2 and 3.

   The appellants ground their contention on the idea that until a "bill" is signed by the Governor, it does not become an "Act" within the purview of Constitution, Art. XVI, § 1 (a).  We do not see it quite that way.

   The annual regular sessions of the General Assembly commence on the second Wednesday of January, Constitution, Art. III, § 14, and ordinarily continue for 90 consecutive[***8] days, § 15.  The session may last, depending on the vagaries of the calendar, until a date somewhere in mid-April.  Bills enacted by the General Assembly must be presented to the Governor for signature or veto as soon as practical after passage, in compliance with Maryland Code (1957, 1971 Repl. Vol.) Art. 41, § 45, which provides, "every bill . . . shall, as soon thereafter as practical, be . . . presented to the Governor for his approval.  . . ." Our predecessors have held this phrase to be "of a relative and dependent character, to be controlled more or less by the circumstances of the case, and by no means [to] furnish a definite and fixed rule," Robey v. Broersma, 181 Md. 325, 341, 26 A. 2d 820, 29 A. 2d 827 (1942, modified on reargument, 1943), quoting from Lankford v. Somerset Co., 73 Md. 105, 20 A. 1017, 22 A. 412 (1890). "Practicable" has been held to mean not practicable for the officials of the Legislature but practicable from the standpoint of proper consideration by the Governor, Robey v. Broersma, supra, 181 Md. at 341; [*436] Johnson v. Luers, 129 Md. 521, 526-527, 99 A. 710 (1916). That the Governor must act on bills not later than 31 May[***9] may possibly be inferred from the constitutional requirement that referenda petitions must be filed before 1 June, 54 Op. Att'y Gen. 184, 188 (1969), 21 Op. Att'y Gen. 277, 280-281 (1936).

   Within this framework, to argue, as the appellants do, that petitions intended to take a bill to referendum cannot be circulated until a "bill" has become an "Act," by virtue of the Governor's signature is simply unrealistic, and flies in the face of the doctrine that effect will be given, wherever possible, to every part of a constitution or statute, Thomas v. Police Commissioner, 211 Md. 357, 127 A. 2d 625 (1956). The acceptance of the appellants' argument, in the context of the time limitations which we have discussed, would effectively negate [**820] the constitutional guaranty of the right of referendum, which we regard as inalienable.

   As we see it, petitions designed to take a bill to referendum may be circulated for signature at any time after a bill has been enacted by the General Assembly, without awaiting the Governor's signature, even though such petitions have never in the past been filed with the Secretary of State until after the Governor has signed a bill.  To hold otherwise[***10] might well result in a nullification of the referendum process.

   The appellants argue that abuses of the Governor's power to control the date when a bill is presented for his signature could conceivably frustrate the constitutionally guaranteed right of referendum. They suggest, by way of example, that if a bill is not signed by the Governor until 11:59 p.m. on 31 May, the opportunity to file a referendum petition might be effectively foreclosed.  But this overlooks the possibility that a referendum petition might be filed with the Secretary of State before the Governor affixes his signature.

   An excerpt from Judge Bryan's concurring opinion in Lankford v. Somerset Co., supra, 73 Md. at 121-122 is apposite here:
 
[*437] "It may be answered that all public officers are bound to perform their duties with promptness and diligence.  An unreasonable delay in the discharge of duty is grave misconduct in a public officer.  It would be unbecoming in the court to anticipate that the executive department would neglect its duty. If unhappily, such an event shall ever occur, we must deal with the case as law and justice may require.  But we are not called upon to lay down in[***11] advance a rule to meet this contingency.  It is possible that we may some day be obliged to declare a law invalid because of the Governor's delay in signing it.  But that day has not yet arrived."

   The appellants say, and we agree, that if petitions are circulated and signatures obtained before the adjournment of the General Assembly, a last minute amendment may well require the whole effort to be undertaken anew because Constitution, Art. XVI, § 4 requires that each petition "contain the full text of the Act or part of Act petitioned upon.  . . ." n4 Similarly, the whole effort could become a futile exercise if the Governor should veto the bill when it is presented for his signature.

n4 The State acknowledges that since a bill is not assigned a chapter number until signed by the Governor, petitions circulated before a bill is presented for signature usually make provision for the insertion of a chapter number prior to filing with the Secretary of State.

   A better solution might be found if the constitutional[***12] provision could be modified to provide that one-half of the required signatures be filed within 30 days from the date when the Governor signs a bill, the other one-half to be filed within the 30 days n5 next following.  Such a mechanism may be properly structured by the General Assembly and by popular vote.  It cannot be effected by judicial construction, Abell v. Secretary of State, 251 Md. 319, 331, 247 A. 2d 258 (1968).

n5 Of course, the effective date of the act would have to be accommodated to this procedure.

   For these reasons, we believe that the relief sought by the appellants was properly denied. 

KRICK et al. v. DOUGHERTY; DOUGHERTY v. KRICK et al. 
No. 361, September Term, 1971
 
Court of Appeals of Maryland
 
266 Md. 97; 291 A.2d 648; 1972 Md. LEXIS 721

 June  14, 1972, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed July 10, 1972; Denied September 11, 1972.

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

DISPOSITION: Decree of October 18, 1971, reversed and the case remanded to the lower court for the formulation and entry of a decree in accordance with this opinion, the appellants and cross-appellees to pay one-half of the costs and the appellee and cross-appellant to pay the remaining one-half of the costs.

CORE TERMS:  decree, mortgage, chancellor, settlement, specific performance, subject property, stock, fire insurance, purchaser, purchase price, novation, partner, vendor, settlement agreement, conditions precedent, burned, settle, option to purchase, option agreement, prayer, option contract, liquor license, destroyed, tavern, partnership, subsisting, foreclose, abatement, demurrer, fixtures

COUNSEL: Richard A. Brown and Edward C. Mackie for Frank Krick and Mildred [***4]Krick, appellant and cross-appellee.

   Paul S. Beatty, with whom were Isaac Hecht, Leroy Handwerger and Hecht & Handwerger on the brief, for John H. Dougherty, Jr., appellee and cross-appellant.

JUDGES: Hammond, C. J., * and Barnes, McWilliams, Singley, Smith and Digges, JJ., and Richard P. Gilbert, Associate Judge of the Court of Special Appeals, specially assigned.  Barnes, J., delivered the opinion of the Court.

* Hammond, C. 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: BARNES

OPINION: [*99] [**650] This appeal contains three appeals in one record. The [*100] principal questions presented to us are whether the Circuit Court for Anne Arundel County, in Equity (Wray, J.), (1) in its decree of October 18, 1971, properly granted specific performance of a contract resulting from the exercise by the appellee, John H. Dougherty, Jr., plaintiff below and cross-appellant, of a written option, dated May 21, 1969, whereby Frank Krick and Mildred Krick, his wife, appellants, defendants below[***5] and cross-appellees, and Walter C. Hoerl and Bertha Hoerl, his wife, trading as "Whitey & Walt's Tavern," granted Dougherty the option to purchase a tavern in Anne Arundel County and (2) whether the chancellor erred in declining to enforce an alleged settlement agreement dated November 4, 1970.  Dougherty also contends that the chancellor erred in overruling his demurrer to the Amended Answer of the Kricks and in declining to consider Dougherty's petition for a review of the decree filed after the entry of the order for appeal by the Kricks but prior to the enrollment of the decree. The Hoerls were defendants below but did not appeal to this Court from the decree of October 18, 1971.

   Dougherty's mother was married to Hoerl, who was employed by a gas conversion company.  As part of his duties, he moved from town to town as each job was completed.  Mrs. Hoerl became tired of moving from town to town.  In order to provide his stepfather with a local business, Dougherty and Hoerl looked for and discovered, as a potential local business, a property of approximately one acre and improvements located at 3 Ritchie Highway, Anne Arundel County, then owned by the Third District Women's Democratic[***6] Club (the subject property). This club not only owned the subject property but held an Anne Arundel County liquor license.

   Dougherty knew that his stepfather, Hoerl, had never been in business for himself and was not familiar with the operation of a tavern business.  He thought that Hoerl should have a partner who was familiar with such an operation and, having known Krick for a number of [*101] years as a person who had been in the tavern business most of his adult life, introduced his stepfather to Krick in 1961.  As a result of this introduction, Hoerl and Krick formed a business partnership to operate "Whitey & Walt's Tavern." The partnership leased the subject property from the Club with an option to buy it.

   Toward the end of the first lease period, Dougherty advised the partners to purchase the subject property. He requested The Laurel Building Association of Prince George's County, located in Laurel, Maryland (Building Association), where Dougherty owns and operates a pharmacy, to appraise the property to ascertain whether the Building Association could arrange financing for the partners to purchase the property.  This financing was arranged and the partners exercised[***7] their option to purchase the property in 1964.

   From 1964 to 1967 the partnership apparently did not experience any financial problems.  In 1967, however, payments on the mortgage on the subject property were not made when due; and in April of 1968 the Building Association made a tentative decision to foreclose the mortgage on the subject property. Officials of the Building Association notified Dougherty of the financial difficulty prior to instituting foreclosure proceedings.

   Dougherty then conferred with both of the partners, Krick and Hoerl, and told them to straighten out the matter with the Building Association as soon as possible, which they did.  In May of 1969, however, payments were late again and the Building Association decided to institute foreclosure proceedings. Thereafter, Dougherty requested the Building Association not to foreclose and to give him a week's time to talk to Krick and Hoerl in an effort to straighten the matter out.  The Building Association agreed not to foreclose if [**651] Dougherty would see to it that the Association was paid.

   In order to prevent the foreclosure in May 1969, Dougherty called Krick and Hoerl to his home on May 10, 1969, to[***8] discuss and hopefully to resolve their financial [*102] crisis.  At this conference Dougherty determined how much of the indebtedness of Krick and Hoerl would have to be paid immediately. This amounted to approximately $4,000.00, including the back payments on the mortgage. Dougherty told Krick and Hoerl that if they wanted him to resolve their present financial difficulties, they would have to grant him an option to buy the business and the subject property. Dougherty presented them with a form of option he had prepared with a blank space for the insertion of the amount of the purchase price. An agreement of $65,000.00 for the purchase price was reached and this figure was inserted in the blank in the form of option agreement. Dougherty testified that the $65,000.00 figure was broken down as $30,000.00 for the business and subject property (this was the amount of the original purchase price by Krick and Hoerl), $20,000.00 for the inventory, $10,000.00 for fixtures and equipment and $5,000.00 for good will.  Krick broke the $65,000.00 figure down as follows: $35,000.00 for the mortgage, $10,000.00 for the stock and $20,000.00 for the fixtures. Krick and Hoerl [***9]read the proposed option; and the figure of $65,000.00 was inserted, the partners placing their initials over the inserted amount.  They then signed the completed option on May 10, 1969.

   The written option of May 10, 1969, was as follows:

   "In Consideration of the sum of $1 dollar ($1.00), cash in hand paid, receipt of which is hereby acknowledged, we hereby give and grant unto John H. Dougherty, Jr., his heirs, assigns, or representatives, the exclusive option and right to purchase, for a period of three (3) years from the date hereof, upon the terms and conditions set out hereinbelow, the following-described land in Anne Arundel County, State of Maryland, to wit:
 
Being the west side of Ritchie Highway, in Elvaton, Maryland, more specifically described as the Frank Krick and Walter [*103] Hoerl property, commonly called Whitey's & Walt's.  This option includes property, all improvements, stock, fixtures, licenses, etc. pertaining to the aforementioned property.

   F.M.K. W.C.H.

   "Purchaser is to pay a total consideration of $65,000 Dollars ($65,000.00) payable in cash at the time of consummation of purchase.

   "Upon exercise of this option, the sale of said land, [***10] as contemplate[d] hereby, shall be consummated with[in] ninety (90) days from the date of delivery of notice of such exercise.
 
   "We agree to deliver to purchaser a good and sufficient warranty deed conveying said property in fee simple to the purchaser, or his assigns or representatives, contemporaneously with delivery by purchaser of the consideration as set out in paragraph one.

   "Witness in duplicate this 10 day of May, 1969:"

   After the conference, Dougherty assured the Building Association that it would be paid and that he had been granted a written option to purchase the business and subject property from Krick and Hoerl.  Dougherty also arranged for a $4,000.00 loan from the Citizens National Bank for Krick and Hoerl, Dougherty and his wife signing as guarantors of the note evidencing that loan.

   Later Dougherty was advised by a friend who was a member of the Bar of Maryland that if the subject property was titled in the names of the Kricks and Hoerls, the option to purchase should be executed by all of them and not merely by [**652] Krick and Hoerl and that he would be glad to have his secretary retype the option to provide for the signatures by the Kricks and Hoerls. [***11]This was done.  The language of the retyped option is substantially identical in wording to the option of May 10 but with [*104] places for the four signatures and the addition of "(Seal)" after each signature.  Dougherty then told Krick and Hoerl that if they and their wives would sign the proposed retyped option, he would co-sign the Citizens National Bank note and that the Bank would only loan Krick and Hoerl the $4,000.00 if Dougherty cosigned the note.  Krick and Hoerl and their respective wives executed the option to purchase on May 21, 1969, under seal, before a witness and acknowledged it before a notary public as their act.  Krick then took the executed option of May 21 to Dougherty and Dougherty gave Krick the $4,000.00 check from the bank. The money from this check was used by Krick and Hoerl to bring the mortgage up to date and to pay other partnership debts.

   Later, Dougherty obtained an accountant for Krick and Hoerl to help them establish proper business records and instruct them in how to keep them.  All of Dougherty's efforts to help Krick and Hoerl were unavailing, however, and in 1970 they again became delinquent in paying their retail sales taxes, in making [***12]their required mortgage payments to the Building Association and in making their payments to the bank on the note.  The Building Association was about to foreclose and the Bank indicated that it wished Dougherty to pay off the balance of the note.  Krick and Hoerl, since no bank would give them a checking account, had to pay cash in order to obtain any deliveries of liquor. Krick and Hoerl closed the business voluntarily for a time during the early part of 1970.  In view of the situation, Dougherty decided to exercise his option to purchase of May 21, 1969.

   The Kricks on April 30, 1970, received Dougherty's written exercise, under seal, of the option of May 21, 1969.  Dougherty, when he exercised the option, offered $65,000.00 to Krick and Hoerl.  The Kricks and Hoerls, however, would not convey the subject property, fixtures, stock and liquor license to Dougherty.

   Dougherty, on May 13, 1970, filed a bill of complaint in the Circuit Court for Anne Arundel County, in Equity, [*105] praying for specific performance of the agreement to purchase resulting from his exercise of the option of May 21, 1969, and for other relief.

   The Hoerls did not answer the bill of complaint; and[***13] on June 23, 1970, Dougherty obtained a decree pro confesso against them.  The Kricks, however, answered the bill of complaint denying that they had granted an option to Dougherty and that Dougherty had orally notified them of his exercise of the option on April 24, 1970.

   The trial of the case was scheduled for November 4, 1970.  The day before the scheduled trial -- November 3, 1970 -- the Kricks and Dougherty agreed to try to settle the matter and had the case passed for settlement. Dougherty, in order to avoid additional costs of litigating the question of the validity of the option of May 21, 1969, was willing to pay $8,000.00 in addition to the $65,000.00 payable to Krick and Hoerl under the contract to purchase resulting from the exercise of the option and have the partnership pay the additional $8,000.00 to Krick.  According to Dougherty, the settlement of the suit was to have been consummated after the transfer of the liquor license was approved.  This occurred in December 1970 but Krick would not settle because he wished to deplete the alcoholic beverage stock during the Christmas season.  Dougherty was still willing to settle and he and the Kricks again agreed to try[***14] to settle the suit sometime during the first week in January 1971.  In the early morning of January 4, 1971, however, a fire occurred at the subject property and completely destroyed the premises, together with all stock and fixtures. At the time of the fire, Krick and Hoerl had fire insurance [**653] coverage on the building and its contents, the alcoholic beverages covered having a then wholesale value of approximately $8,500.00.

   After the fire, Dougherty was still willing to go forward with the proposed settlement if the Kricks would agree that Dougherty was to receive the proceeds of the fire insurance policies in lieu of the burned improvements [*106] and stock; but the Kricks were no longer willing to go forward with the sale.

   Prior to the trial of the case in the lower court on May 4, 1971, Dougherty had to pay the balance of the $4,000.00 loan from the bank.

   After the case came on for trial on May 5, the chancellor granted the Kricks leave to amend their Answer.  On June 1, 1971, the Kricks filed a Supplemental Answer alleging that the option agreement Dougherty was seeking to enforce specifically was invalid but, if found to be valid, was superseded by an agreement[***15] of settlement entered into on November 4, 1970, between Dougherty and Krick whereby in settlement of the suit Dougherty would pay Krick only an additional $8,000.00 in settlement of all claims arising out of the suit.  The Supplemental Answer then continued:

   "Wherefore, the Defendants pray:

   (1) That the Option Agreement be declared null and void;

   (2) That the Court refuse to decree specific performance of the Option Agreement;

   (3) That in the alternative, the agreement of November 4, 1970 be specifically enforced;

    (4) That the Plaintiff pay the costs of these proceedings;

   (5) That the Defendants have such other and further relief as the case may require."

   By an order dated July 21, 1971, the Kricks' Supplemental Answer was marked "Amended Answer."

   Dougherty, on August 4, 1971, filed a demurrer to paragraphs 4 and 5 (in regard to the alleged superseding settlement agreement) and to prayer for relief No. 3 (seeking specific enforcement of the alleged settlement agreement) on the grounds that these paragraphs and prayer for relief alleged a counterclaim and were not an answer to the bill of complaint and that paragraphs 4 and 5 failed to allege that the Hoerls were parties[***16] to the alleged novation agreement.

   [*107] The chancellor on October 18, 1971, filed an opinion in which he concluded that the alleged settlement agreement was "brought to naught when the fire occurred and Krick refused to relinquish the insurance proceeds" and that Dougherty was "entitled to specific performance of his contract, the insurance proceeds substituting for the burned premises and stock." The decree of October 18, 1971, was as follows:

   "That the Plaintiff's Demurrer be, and it is hereby, overruled;

   "That the Defendants be, and they are hereby, directed to perform their obligations under the option contract of 21 May 1969;

   "That the Defendants pay the costs of these proceedings."

   The Kricks entered their order of appeal to this Court on November 4, 1971, from the decree of October 18.  On November 12, Dougherty filed a petition for revision of the decree of October 18, alleging that although the chancellor in his opinion stated that Dougherty, as the plaintiff, was entitled to the insurance proceeds in lieu of the burned premises and stock, the decree of October 18 merely provided that the defendants were to perform their obligations under the option contract[***17] without any direction that the plaintiff, Dougherty, was to receive the land, premises and stock free [**654] and clear of any mortgages or other liens, although the prayer for general relief would cover such a ruling by the chancellor. It was further alleged that counsel for Dougherty, on or about November 1, 1971, had received a letter with an enclosed Assignment Agreement from an officer of the Building Association, indicating that the six insurance companies insuring the premises against loss from fire had denied all liability to the Kricks and Hoerls, trading as Whitey & Walt's Tavern, and had paid the balance due under the mortgage on the subject property of $29,324.28 and had received an assignment of the mortgage, the payment in no way admitting liability to the Kricks and [*108] Hoerls. n1 The lower court, as well as Dougherty, did not know of the denial of coverage to the defendants when the decree of October 18 was passed.  Paragraph 6 of the petition recites:

   "6. That although this Court's Memorandum of Opinion specifically provided that the insurance proceeds would substitute for the burned premises and stock, said Opinion and Decree did not provide for[***18] the contingency that coverage may be denied to Defendants, and, therefore, if there were no insurance proceeds, whether or not to allow Plaintiff a pecuniary compensation or abatement from said purchase price, said compensation or abatement being the equivalent in value of the burned premises and stock."

n1 The insurance companies involved, the policy numbers, the total coverage of each policy, the percentage of contribution for the acquisition of the mortgage and the amount of the contributions are as follows:

                                                    Percentage        Amount
                        Policy         Total            of              of
      Company           Number        Coverage     Contribution    Contribution
Aetna Ins. Co.      00 92 80          $ 11,000.00           17.46    $  5,120.02
Fireman's Fund
  Ins. Co.          F 442-30-85         12,000.00           19.05       5,586.28
Glens Falls Ins.
  Co.               F 09 10 61           6,000.00            9.52       2,791.67
St. Paul Fire &
  Marine Ins. Co.   181AA 6700          10,000.00           15.87       4,653.76
U.S.F. & G. Co.     F 2275961           14,000.00           22.22       6,515.85
U.S. Fire Ins.
  Co.               80 30 52            10,000.00           15.88       4,656.70
                                      $ 63,000.00                    $ 29,324.28

 

[***19]

   The prayers for relief in the petition were:

   "(1) That this Court revise its Decree of October 18, 19[71] before November 17, 1971 in order to provide for:

   (a) Plaintiff to receive said land, premises and stock free and clear of any mortgages, liens, etc.; and (b) for a pecuniary compensation or abatement from said purchase price, if there are no insurance proceeds in lieu of the burned premises and stock;

   [*109] "(2) that this Court grant hearing to Plaintiff before the 17th day of November, 1971;

   "(3) that this Court revoke its Decree of October 18, 1971 before November 17, 1971;

   "(4) that this Court order that the record in this case not be forwarded to the Court of Appeals until after it revises said Decree; and

   "(5) that Plaintiff may have such other and further relief as the nature of his Petition may require."

    The chancellor on November 15, 1971, filed an order declining to consider the petition for revision of the decree of October 18 inasmuch as the lower court was of the opinion that it was without jurisdiction.

   [**655] Dougherty entered an appeal to this Court from the order of November 15, 1971, the following day -- November 16, 1971 -- and later [***20]the same day entered an appeal to this Court from the decree of October 18, 1971.

   (1)

   In our opinion, the chancellor properly concluded that the contract to purchase the subject property and business resulting from the exercise by Dougherty of his option of May 21, 1969, should be specifically enforced.  The language of the written contract was clear and unambiguous and the Chancellor properly found that there was no overreaching or other inequitable conduct on the part of Dougherty in negotiating the option.  The Kricks contend that the exercise of the option was subject to two oral conditions precedent, not made part of the written option, i.e., that the option would only be exercised by Dougherty if the partners (1) "failed to make a success of the business" or (2) failed "to run [the business] in a good business-like manner." They further contend that inasmuch as these "conditions precedent" were part of the original consideration for the contract and were part of the inducement to enter into the option, parol evidence is admissible to establish them as valid and binding on the parties, relying upon the decisions of this [*110] Court in Alban Tractor Co. [***21]  v. Harrison, 228 Md. 632, 180 A. 2d 862 (1962) and Leonard v. Union Trust Co., 140 Md. 192, 117 A. 318 (1922). They also contend that the language of the alleged oral "conditions precedent" is not so vague and indefinite as to have no meaning and that Dougherty had not met his burden of proof to show a failure to "make a success of the business" or to run it "in a good business-like manner."

   Even if we assume, arguendo, that the language of the alleged "conditions precedent" is sufficiently definite to be enforced and further that the alleged "conditions precedent" could be established by admissible testimony in view of the parol evidence rule and the provisions of the 4th section of the Statute of Frauds, nevertheless the record amply establishes that the partners did indeed fail to make a success of the tavern business and to operate it in a good business-like manner.  As we have already observed, the partners had again become delinquent in 1970 in paying the retail sales taxes, in making the mortgage payments to the building association and in making the loan payments to the bank.  The Building Association was about to foreclose and the Bank wanted Dougherty to pay the[***22] balance of the note.  Krick and Hoerl had no checking account; no bank would give them a checking account and they had to pay cash for all liquor deliveries.  They had closed the tavern for a period and were in danger of losing their liquor license. Under these circumstances, the alleged oral "conditions precedent" were satisfied prior to the exercise of the option by Dougherty who was then on any theory entitled to specific performance of his contract to purchase.

   (2)

   Krick contends that the contract based upon the exercise by Dougherty of the option of May 21, 1969, was superseded by an alleged agreement of settlement of November 4, 1970.  As we have indicated, there was an attempt to settle the pending litigation and the case was passed for settlement when it was to have been heard [*111] on November 4, 1970.  There was an exchange of letters between counsel on November 4, but it does not appear that an agreement on the precise terms of the proposed settlement was reached.  For example, in the letter from counsel for Dougherty, the purchase price in the contract to purchase resulting from the exercise of the option was to be increased from $65,000.00 to $73,000.00[***23] so that the partnership would receive the entire purchase price and thereafter pay Krick $8,000.00 in consideration of his withdrawing his defense in the pending litigation.  The letter from counsel [**656] for Krick, on the other hand, provided that Dougherty should pay Krick only the sum of $8,000.00 in settlement of all claims arising out of the law suit.  Assuming, for the argument, that an agreement of settlement was reached, the time of settlement was not specified so that it would be within a reasonable time.  See 15A C.J.S. Compromise and Settlement § 45, at 273, 274. See also City of Baltimore v. Landay, 258 Md. 568, 267 A. 2d 156 (1970).

   Dougherty testified that settlement was to take place in December 1970 when the transfer of the liquor license was approved but that Krick declined to go to settlement then because he wished to dispose of a substantial portion of the alcoholic beverages on hand during the Christmas season.  Dougherty testified that he was still willing to settle the first week in January 1971 notwithstanding Krick's refusal to settle in December 1970; but the fire having occurred on January 4, 1971, Krick declined to settle, being[***24] unwilling to turn over any insurance proceeds to Dougherty.

   In any event, the Kricks in paragraphs 2 and 3 in their Amended Answer filed June 1, 1971, denied the validity of the option agreement with the plaintiff Dougherty and denied that he was entitled to specific performance of that agreement.  They prayed, in their second prayer for relief, that the lower court refuse to decree specific performance of that agreement.  Inasmuch as the withdrawal by the Kricks of their defense to the specific enforcement of the agreement in the pending litigation was the basis [*112] for the alleged settlement, the election of the Kricks to press their objection to specific enforcement and their position that the option agreement was invalid indicated that they no longer considered the case settled.  On the contrary, they took the position that the alleged agreement of November 4, 1970, superseded the original contract and that the new agreement should be specifically enforced.  The chancellor properly ruled that the alleged agreement of November 4 was not a novation and hence did not supersede the original contract.  As Judge Pattison stated for our predecessors in District National [***25]  Bank of Washington v. Mordecai, 133 Md. 419, 427, 105 A. 586, 588 (1919):

   "A novation is a new contractual relation and contains four essential requisites: (1) A previous valid obligation; (2) the agreement of all the parties to the new contract; (3) the validity of such new contract, and (4) the extinguishment of the old contract, by the substitution for it of the new one."
 
See Leisner v. Finnerty, 252 Md. 558, 563, 564, 250 A. 2d 641, 644 (1969), citing Mordecai with approval and quoting from it.

   It is clear from both the pleadings and the evidence at the trial that the Hoerls were not parties to the alleged novation and hence the second element for an effective novation was not present.  The alleged agreement of November 4, 1970, was neither a novation nor an enforceable settlement agreement; and the chancellor properly so ruled.

   Dougherty earnestly contends that the chancellor should have considered his petition to revise the decree of October 18, 1971, even though it was filed after an appeal to this Court had been entered by the Kricks from that decree. The chancellor took the position that after the appeal was taken, the lower court lost jurisdiction[***26] in the suit and refused to consider the petition to revise.  The prior decisions of this Court sustain the [*113] chancellor's position.  Collier v. Collier, 182 Md. 82, 32 A. 2d 469 (1943) and Eastern States Corp. v. Eisler, 181 Md. 526, 30 A. 2d 867 (1943).

   Dougherty, however, is not without some relief in this Court inasmuch as he entered a cross-appeal from the decree of October 18, 1971.  We have concluded that the chancellor erred in the form of the decree and the case must be remanded for the entry of a decree for specific performance in proper form.  As we have already [**657] stated the chancellor in his opinion indicated that Dougherty was "entitled to specific performance of his contract, the insurance proceeds substituting for the burned premises and stock." There is, however, nothing in the decree in regard to this aspect of the matter; and this Court has held that the decree -- and not the court's opinion -- represents the official and effective action by the lower court.  Alleghany Corp. v. Aldebaran Corp., 173 Md. 472, 196 A. 418 (1938). The chancellor was apparently under the erroneous impression that the fire insurance proceeds had already been [***27]paid to the Kricks and the Hoerls.  In any event, the decree should have delineated the details of the relief of specific performance with the usual provisions for a trustee in the event the sellers refused to execute the necessary documents.

   For the guidance of the lower court upon the remand to formulate and file a new decree in proper form to effectuate the specific performance of the option contract of May 21, 1969, we will indicate our opinion in regard to the form of the decree, pursuant to Maryland Rule 885, in order to prevent, if possible, another appeal in this matter.

   In our opinion, the position of the Kricks that, under the decisions of this Court, Dougherty is not entitled to the proceeds of fire insurance unless he is designated by endorsement on the policies as entitled to the proceeds as contract purchaser (which apparently is not the case) or unless the proceeds of the fire insurance policies had already been paid to the Kricks and Hoerls in which event they would hold the insurance proceeds as trustees [*114] for the contract purchaser, Dougherty, is sound.  Apparently, the fire insurance companies have denied liability to the Kricks and Hoerls and have thus [***28]far paid them nothing.

   Our predecessors have decided the principles of law applicable in this situation in Brewer v. Herbert, 30 Md. 301 (1869) and in Skinner & Sons' Co. v. Houghton, 92 Md. 68, 48 A. 85 (1900). In Brewer, the improvements on the land subject to a contract of sale were destroyed by fire subsequent to the signing of the contract of sale but before the conveyance of the property.  The fire insurance held by the vendor had lapsed prior to the fire.  The vendor was granted specific performance and the vendee had to suffer the loss.

   Judge Miller stated for the Court:
 
   "In contracts of this kind between private parties, the vendee is in equity the owner of the estate from the time of the contract of sale, and must sustain the loss if the estate be destroyed between the agreement and the conveyance, * * *."
(30 Md. at 307.)

   The Court later stated:

   "If the policy had existed at the time of the loss, the vendor could have recovered from the insurance company, but being trustee of the premises for the vendee, he would be bound in equity to account to the latter for the money so received * * *."
(30 Md. at 313.)

   Brewer was cited with approval[***29] in Skinner, supra, where the Court further stated:

   "In Joyce on Insurance, section 3525, it is said: 'If property is destroyed between the time of effecting the contract for the sale and delivery of the deed, the proceeds of an insurance policy [*115] belongs to the vendor as between him and the company, but the former is held to act as trustee for the vendee and must therefore account to his cestui que trust in equity.'"
(92 Md. at 88; 48 A. at 88.)

   We have never departed from these holdings so that Dougherty is not entitled to any proceeds of the fire insurance in this suit in the absence of the conditions already set forth, which, as we have stated, [**658] apparently do not exist. n2 We do not indicate any opinion in regard to what rights, if any, the parties to this suit may have against the fire insurance companies, they not being parties to this litigation.

n2 Dougherty, as contract purchaser, after the exercise of the option on April 24, 1970, could have protected his interest as the then equitable owner of the subject property by an appropriate endorsement on the fire insurance policies or by the obtention of his own fire insurance policies to protect his interest.

[***30]

   We are of the opinion, however, that in the decree to be formulated upon the remand, Dougherty is entitled to have the subject property conveyed to him by a good and sufficient deed conveying it "in fee simple" as the contract provides. This means that the subject property is to be conveyed free and clear of any subsisting mortgage and other liens so that Dougherty is entitled to an abatement of the purchase price of $65,000.00 in an amount necessary to pay off any subsisting mortgage or other liens if they have not been paid off and released at the time of settlement. Apparently, the subsisting mortgage has been purchased by and assigned to the six fire insurance companies for $29,324.28. Additional interest will likely have accrued subsequent to the assignment to those companies.  Whatever proper total amount is required to obtain the release of this mortgage, that amount is to be abated from the purchase price if the mortgage is not released of record at or prior to settlement.

   (3)

   Dougherty contends that the chancellor erred in refusing [*116] to sustain his demurrer to paragraphs 4 and 5 and prayer 3 of the Amended Answer of the Kricks and by his order filed[***31] July 22, 1971, in denying his motion ne recipiatur or to strike the Amended Answer.  The thrust of his argument on the demurrer was that the Kricks had not alleged the necessary elements of a novation. In regard to the motion, he urged that the Kricks had not applied to the lower court for leave to file a supplemental pleading as required by Rule 379 and, further, that the Kricks were seeking to assert a counterclaim in their "Amended" Answer without complying with the Rules applicable to filing counterclaims.  There is much force in these contentions; but in view of our decision on the merits, these rulings, even if erroneous, were not prejudicial to Dougherty, so that we do not deem it necessary to rule upon the propriety of the chancellor's rulings on the demurrer and on the motion.

   Decree of October 18, 1971, reversed and the case remanded to the lower court for the formulation and entry of a decree in accordance with this opinion, the appellants and cross-appellees to pay one-half of the costs and the appellee and cross-appellant to pay the remaining one-half of the costs. 

COLBURN v. COLBURN 
No. 317, September Term, 1971
 
Court of Appeals of Maryland
 
265 Md. 468; 290 A.2d 480; 1972 Md. LEXIS 970

 May  11, 1972, Decided

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

DISPOSITION: Decree modified and as modified, affirmed; appellant to pay 3/4 of costs; appellee to pay 1/4 costs.

CORE TERMS:  repair, tenant, jointly, entireties, chancellor, rental, premiums, mortgage, decree, one-half, collected, expended, co-tenant, occupied, deposit, rule of law, deducting, cotenant, spouse, joint account, co-owner, ouster, accounting, divorce, couple, insurance premiums paid, majority view, general rule, third party, supplied

COUNSEL: Natalie R. Zimmerman, with whom was Samuel Schenker on the brief, for appellant.

   Theodore G. Bloom, with whom were Albert J. Goodman and Goodman, Bloom, Merrill & Lilly on the brief, for appellee.

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

* Finan, J., participated in the hearing of the case, and in the conference in regard to its decision, but died prior to the adoption of the opinion by the Court.

OPINIONBY: FINAN

OPINION: [*469] [**481] This case returns to us for what will hopefully bring about a final disposition of the financial dispute between the appellant, James B. Colburn, Jr., and his ex-wife, the appellee, Marjorie B. S. Colburn. The opinion in the first appeal, Colburn v. Colburn, 262 Md. 333, 278 A. 2d 1 (1971), contains a complete discussion of the circumstances which culminated in this cause of action, and therefore the facts will be only briefly recounted.
 
   While Mr. and Mrs. Colburn were still cohabiting, she became dissatisfied with[***4] her husband's management of their properties which they held as tenants by the entireties, [*470] alleging that he collected the proceeds from them without informing her of their disposition.  At this time Mrs. Colburn was under the care of an internist and a psychiatrist, a situation which she attributes to the fact that her husband had rejected her and refused to communicate with her in any way.  Upon the advice of her psychiatrist, Mrs. Colburn consulted legal counsel for the purpose of protecting her interests in the jointly held properties, and not originally for the purpose of seeking a divorce.

   On November 17, 1969, while still living with her husband, Mrs. Colburn filed a bill of complaint for an accounting and the appointment of a receiver in the Circuit Court for Anne Arundel County (Sachse, J.).  On June 10, 1970, the chancellor filed a decree appointing Edward F. Mullen, C.P.A., as a special auditor of the court and directing him to state an account of all sums collected by each of the parties from: (1) rents collected from jointly held properties; (2) payments upon jointly held mortgages; (3) monies on deposit in the joint names of the parties in all savings and[***5] checking accounts; (4) jointly owned stocks, bonds and securities; and, (5) securities held by either party as trustee for the other.  After the report of the special auditor was filed, the chancellor, noting the absence of exceptions to the report, on August 7, 1970, awarded a judgment of $5,907.55 in Mrs. Colburn's favor, and additionally, ordered Mr. Colburn: to deposit $1,380.56 in a joint account subject to the joint withdrawal order of the Colburns or the order of the court; to deposit in the joint account the future payments on three [**482] jointly held mortgages; and, to pay his wife one-half of the rental payments received from their jointly held properties.

   On September 3, 1970, Mr. Colburn noted an appeal to the August 7 decree to this Court, whereupon we held:
 
"We shall reverse the decree of 7 August 1970 because in our judgment the wife's right to an accounting, in the circumstances before us, could [*471] not have accrued until after she left the marital domicile on 14 January 1970.  Nor can the husband, in these circumstances, be required to account for transactions which took place prior to 14 January 1970.  * * *" 262 Md. at 341.

   Accordingly, [***6] the case was remanded for further proceedings, from which the present appeal arises.  Upon remand, counsel for the Colburns agreed to a stipulation, the effect of which was to:
 
(a) acknowledge the fact that since January 14, 1970, Mrs. Colburn had received no part of the proceeds from the jointly held properties;
(b) set forth the monies collected by Mr. Colburn after January 14, 1970, from rentals of jointly held properties and payments upon jointly held mortgages; and 
(c) set forth the amounts expended by Mr. Colburn after January 14, 1970, for taxes, insurance premiums and repairs on the jointly held properties.

   The stipulation was submitted to the Circuit Court for Anne Arundel County, in equity (Sachse, J.), without additional evidence being presented.  Memoranda of law were, however, submitted by both parties addressed to the specific issues of: (1) whether or not Mrs. Colburn was entitled to one-half of the rental payments made on one of the jointly owned properties which was being used by Mr. Colburn, a contractor, as a place of business for his corporation; (2) whether or not Mr. Colburn should be allowed a deduction for taxes and insurance premiums expended[***7] on the couple's home which he exclusively occupied and for which he paid no rental; n1 (3) whether or not Mr. Colburn should be allowed a deduction for repairs and improvements made to four jointly owned rental properties; and, (4) whether or [*472] not Mrs. Colburn was entitled to one-half of the monies placed in both parties' names in checking and savings accounts.  After consideration of the memoranda, the chancellor passed a decree which, in effect, found in favor of Mrs. Colburn on the first three points discussed and in favor of Mr. Colburn on the fourth point, although he has appealed all four determinations.  The decree awarded Mrs. Colburn the sum of $5,440.89, representing the amount found to be due for her share of the income from rents and interest payments on mortgages; ordered that the sum of $3,201.12, representing principal payments on mortgages, remain on deposit in a joint account subject to the joint withdrawal order of the Colburns or the order of the court; and, made provisions for future payments of proceeds from the jointly held properties to Mrs. Colburn.  Each of the appellant's contentions will be separately considered.

n1 It should be noted that Mrs. Colburn did not cross-appeal the issue of any payment of taxes allowed as a deduction and which were due prior to January 14, 1970 and paid after that date.

[***8]

   I

   One of the Colburns' jointly owned properties is located in Edgewater, Maryland, and has been used exclusively for the operation of a contracting business, Colburn Contracting Company, Inc., which was, prior to January, 1971, owned by the appellant.  The appellant admits that during the period for which he is to account to his ex-wife, he charged the corporation a monthly rental of $200.00 and that he has placed this money aside in his personal bank account. He contends, however, that the chancellor below erred in allowing Mrs. [**483]Colburn one-half of the rentals collected on this property, relying upon the rule of law quoted in Hogan v. McMahon, 115 Md. 195, 80 A. 695 (1911) that:
 
"* * * 'one tenant in common cannot be held liable to his co-tenants for use and occupation of the common property, unless there has been an ouster of his co-tenants.' Israel v. Israel, 30 Md. 120. * * *." 115 Md. at 199.
 
[*473] Admittedly, there has been no ouster of possession in the instant case.

   In Collier v. Collier, 182 Md. 82, 90, 32 A. 2d 469 (1943), reviewing the past decisions of this Court regarding a spouse's right to share equally with her[***9] husband in income produced by properties held as tenants by the entireties, Judge Grason, for the court remarked:
 
"From these cases it may be deduced as a general rule that courts of equity will assume jurisdiction to protect the interest of one or the other spouse in property held as tenants by the entireties. Each case will depend upon its facts and upon its appeal to the conscience of the chancellor. * * *." 182 Md. at 91.

   While it should be noted that in Collier, the chancellor did not allow the wife any income from the business property occupied and used by the husband, as a sole proprietor in his business, we believe the case at bar is distinguishable, on the facts, from Collier.  In Collier, the court denied the wife's petition for divorce and literally told her to behave herself and go back home.  In the instant case the chancellor indicated that in awarding alimony the court, eventually, would take into consideration the money which the wife may be receiving from jointly owned property.  Again in Wardrop v. Wardrop, 211 Md. 14, 124 A. 2d 576 (1956), the Court had occasion to affirm the viability of the early Maryland decisions, stating:
 
"These[***10] cases recognized the firmly established rule that the wife is entitled to one-half of the income from property held by the spouses as tenants by the entireties." 211 Md. at 22.
 
See also Colburn v. Colburn, supra, at 337; and Brown v. Brown, 204 Md. 197, 209-211, 103 A. 2d 856 (1954).

   While we believe the rule of law quoted from Hogan v. McMahon, supra, is representative of the majority view on relationships between copartners, we fail to see its [*474] applicability to the instant situation, where the property in question was leased to a third party, the corporate body of Colburn Contracting Company.  Indeed, the appellant's contention loses most of its force upon the realization that in January, 1970, he retired from active participation in the business.  In short, the appellant was collecting proceeds from the rental of this property to a third party, and it has been firmly established in this State that his wife, under the circumstances of this case, is entitled to share in those proceeds.

   II

   The chancellor, in calculating the award to which Mrs. Colburn was entitled, properly offset taxes and insurance premiums expended by Mr. Colburn on the various[***11] properties, but did not allow a deduction for the taxes and insurance premiums paid by him on the home formerly occupied by the couple. The home is located in Wild Rose Shores, is held as tenants by the entireties, and since January 14, 1970, has been exclusively occupied by Mr. Colburn.  Mrs. Colburn has not demanded, and Mr. Colburn has not offered, rental payments. Once more, the appellant places primary reliance for his position on Hogan v. McMahon, supra. In this instance, however, his reliance is well placed.

   In Hogan, the plaintiff (appellant) filed a bill in equity seeking the sale of a parcel of ground which was held by the plaintiff and defendant as tenants in common.  The defendant (appellee) filed an answer to the bill admitting its allegations, [**484] but denying that the plaintiff was entitled to relief for the reason that she had expended monies for improvements to the property, mortgage payments and taxes exceeding the amount claimed in the bill of complaint without any contribution from the plaintiff.  The plaintiff and defendant lived on the property until the plaintiff left of his own accord. There was no evidence that the defendant had ousted the[***12] plaintiff from possession.  Upon these facts, the Court held:
 
[*475] "* * * there can be no doubt that the appellee is entitled to contribution by the appellant for liens and encumbrances paid by her since they became tenants in common.  17 Am. and Eng. Ency. of Law, 685; 7 Ibid. 353, and, as shown by the last cited authority, that statement includes mortgages, taxes and ground rent.
 
See also Pino v. Clay, 251 Md. 454, 456-457, 248 A. 2d 101 (1968); Withers v. Douglas, 206 Md. 141, 148, 110 A. 2d 513 (1955); Schilback v. Schilback, 171 Md. 405, 408, 189 A. 432 (1937); and Myers v. Loan & Sav. Assn., 139 Md. 607, 612, 116 A. 453 (1922). Schilback, supra, makes it clear that the rule of law applied in Hogan is equally applicable to tenants by the entireties.

   The statement is made in Schilback that:
 
"When one coparcener pays obligations such as taxes, insurance and ordinary repairs, which may be regarded as carrying charges, he does not have recourse against the other for contribution without an agreement from the other to pay. * * *." (Emphasis supplied) 171 Md. at 408.
 
However, we do not understand Hogan[***13] , or the prevailing majority view, to require that a co-owner consent to the payment of taxes or reasonable insurance premiums before an obligation to contribute to the costs thereof attaches.  See 48 A.L.R. 586; 136 A.L.R. 1022; and 2 Tiffany Real Property, § 460 (3rd ed. 1939).  As to the propriety of deducting reasonable insurance premiums, see 27 A.L.R. 255; 51 A.L.R. 2d 468; and 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 52; and cf. Masterman v. Masterman, 129 Md. 167, 98 A. 537 (1916).

   Mrs. Colburn contends that to allow a deduction for taxes and insurance premiums on the home would be an inequitable result, as she receives no benefit from the property.  We think, however, that this contention ignores the fact that she possesses an interest in the property which is protected from loss by the payment of the taxes [*476] and insurance premiums. The fact that she currently is not enjoying the use of the property or receiving other value from it, is not due to her having been ousted, but rather her unwillingness thus far to pursue her rights in the property.  We will again note that some of the more unusual aspects of this case may well have been avoided if[***14] the case had been considered concurrently with the couple's divorce proceedings. Unfortunately, this was not done.

   III

   Mr. Colburn also contends that the chancellor erred in not allowing him a deduction for certain repairs made to one of the rental properties held as tenants by the entireties. The stipulation submitted to the court below describes the repairs in the following manner:
 
"3. The defendant expended the following sums for repairs to the premises rented to Mr. and Mrs. Cochrane, without prior consultation with plaintiff:
  
A. Repairs to roof, November, 1970 -- $95.00
B. Repairs to well, November, 1970 -- $760.00
C. Repairs to heating system, January, 1971 -- $133.68
D. Cleaning out septic tank, December, 1970 -- $55.76."
 
It should be noted that although Mrs. Colburn consented to the leasing of the property [**485] in question, the lease was oral and contained no covenant on the part of the landlord to repair. Mrs. Colburn thus owed no contractural duty to make the repairs listed in the stipulation.  Mrs. Colburn asserts that, "[t]he repair items * * * were not reasonable, necessary or proper;" however, we do not regard it necessary[***15] to reach this point, as the record reveals that repairs were admittedly made "without prior consultation with [the] plaintiff."

   In Woodcock v. Pope, 154 Md. 135, 140 A. 76 (1928), the Court held:
 
[*477] "* * * the general rule is that one cotenant is entitled to contribution from another for necessary repairs and improvements when they were made with the assent of the other, or the repairs were necessary for the preservation of the building or other erection on the land, and were done by one cotenant after request of and refusal by the other cotenant, Hogan v. McMahon, 115 Md. 195, 201, 202; Bonaparte v. Thayer, 95 Md. 548, 587; Williams v. Harlan, 88 Md. 1; Tiffany on Real Property (2nd Ed.), § 200, p. 689; Israel v. Israel, 30 Md. 120, 128; Venable's Real Property, p. 102.  * * *."
(Emphasis supplied.) 154 Md. at 147.
 
We affirm the ruling of Woodcock v. Pope for it is our belief that factors such as the expediency of making necessary repairs, the possible obligations of third parties to make repairs and, indeed, the necessity of the repairs themselves are proper objects of consideration for all of the joint owners.  Mr. Colburn's [***16]action in not informing his wife of the performance of the repairs, deprived her of the opportunity to make these determinations prior to the money being expended; consequently, the refusal of the court to deduct these amounts from the proceeds of the properties was proper.

   IV

   Finally, the appellant argues that the chancellor erred in not deducting certain amounts of money allegedly illegally withdrawn by Mrs. Colburn from bank accounts to which she did not contribute, and in not deducting money obtained by Mrs. Colburn from cashing a security for which she made no contribution. Futhermore, the appellant contends that Mrs. Colburn was not entitled to an accounting because no new bill of complaint was filed by her upon remand after the first appeal and because an award of alimony was pending in the divorce action.  Our reading of the record, however, fails to establish that [*478] these points were properly raised before the chancellor. The memoranda of law submitted to the court upon remand were specifically addressed to the issues of whether or not Mrs. Colburn was entitled to share in the bank accounts and securities.  The chancellor determined that she should not[***17] share, but no request was made to offset sums of money wrongfully taken from these sources. Accordingly, we will not consider these issues on appeal, Maryland Rule 885, and we affirm the decree of the chancellor as revised by the allowance to the appellant of the sum of $741.88 representing one-half of the taxes and insurance premiums paid on the Wild Rose Shores property from January 14, 1970.

   Decree modified and as modified, affirmed; appellant to pay 3/4 of costs; appellee to pay 1/4 costs. 

NICHOLSON et al. v. UNSATISFIED CLAIM AND JUDGMENT FUNDBOARD 
No. 331, September Term, 1971
 
Court of Appeals of Maryland
 
265 Md. 453; 290 A.2d 384; 1972 Md. LEXIS 968

 May  10, 1972, Decided

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

DISPOSITION: Order affirmed.  Costs to be paid by appellants. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellants, passengers injured in an auto accident, challenged an order of the Circuit Court for Anne Arundel County (Maryland), dismissing their petition for leave to sue appellee state board pursuant to the Unsatisfied Claim and Judgment Fund Law, Md. Ann. Code art. 66 1/2, § 167, which compensated victims of hit and run drivers. Appellants claimed the court erred in ruling their claim was barred by the doctrine of res judicata.

OVERVIEW:  Appellant injured passengers challenged an order denying their second petition for leave to sue appellee state board under an unsatisfied claim and judgment fund statute, providing compensation for victims of hit and run accidents. Appellants initially petitioned for leave to sue appellee, claiming an unknown motorist negligently caused the driver of their vehicle to swerve off the road, thereby causing the accident. After the initial petition was denied, and the denial was affirmed on appeal because appellants failed to make reasonable efforts to ascertain the unknown driver's identity, appellants sued the driver of their vehicle. A jury decided he was not at fault because the accident was caused by the unknown driver. Appellants again petitioned to sue appellee, but the trial court held their claims were now barred by res judicata. Appellants argued the court erred in holding that the initial denial of leave to sue constituted a bar to their bringing the later petition. The appellate court disagreed and affirmed the order, holding that res judicata was properly applied since the issue to be decided in both petitions was identical and was even couched in the same language.

OUTCOME:  The court affirmed the order denying appellants' petition for leave to sue appellee because the tentacles of res judicata very obviously encompassed the petition, and it was readily apparent that the trial court properly invoked the doctrine.
 
CORE TERMS:  phantom, Judgment Fund Law, motor vehicle, res judicata, ascertain, passengers, final judgment, judicata, permission, unknown, driver, properly invoked, Laws of Maryland, motorist, privity, latest, mishap, crash

CORE CONCEPTS -  

Insurance Law: Automobile Insurance: Uninsured Motorists
Governments: State & Territorial Governments: Claims By & Against
In the event the offending driver is unknown, Md. Ann. Code art. 66 1/2, § 167 enumerates the requirements that victims of hit and run accidents must comply with before being permitted to initiate suit against the Unsatisfied Claim and Judgment Fund Board.

Insurance Law: Automobile Insurance: Uninsured Motorists
Governments: State & Territorial Governments: Claims By & Against
See Md. Ann. Code art. 66 1/2, § 167(f), § 7-620 (5).

Insurance Law: Automobile Insurance: Uninsured Motorists
Governments: State & Territorial Governments: Claims By & Against
See Md. Ann. Code art. 66 1/2, § 7-622.

Civil Procedure: Preclusion & Effect of Judgments: Res Judicata
In determining whether the well-established doctrine of res judicata applies so as to bar the granting of a petition, the Court of Appeals of Maryland must address itself to the following questions: (i) Is the issue presented in the current action identical to the one determined in the prior adjudication? (ii) Are the parties in the present litigation the same or in privity with the parties to the earlier dispute? (iii) Was there a final judgment on the merits in the initial action?

Civil Procedure: Preclusion & Effect of Judgments: Res Judicata
If the response to all these inquiries is in the affirmative then res judicata was properly invoked to prevent this matter from being relitigated.

Civil Procedure: Preclusion & Effect of Judgments: Res Judicata
Insurance Law: Automobile Insurance: Uninsured Motorists
Governments: State & Territorial Governments: Claims By & Against
The three statutes differ in the following manner: under Md. Ann. Code art. 66 1/2, § 7-620 permission is requested to sue the Unsatisfied Claim and Judgment Fund Board prior to docketing any action; Md. Ann. Code art. 66 1/2, § 7-622 is employed to bring suit against the board subsequent to a determination at trial that a phantom vehicle and not the defendant was negligent; finally Md. Ann. Code art. 66 1/2, § 7-623 is used to ask permission to implead the board in a proceeding already commenced. However, all these sections specifically require compliance with the provisions of Md. Ann. Code art. 66 1/2, § 7-620, which includes the necessity of reasonable efforts to ascertain the identity of the phantom vehicle -- lack of which caused the first petition to be denied.

Civil Procedure: Preclusion & Effect of Judgments: Res Judicata
Governments: State & Territorial Governments: Claims By & Against
The Court of Appeals of Maryland has always considered the trial court's decision denying leave to sue the Unsatisfied Claim and Judgment Fund Board as a final judgment, since it is a proceeding independent of any subsequent litigation.

COUNSEL: Joseph F. Lentz, [***2]  Jr., for appellants.

   Jerome T. May and William E. Brannan, Assistant Attorney General, with whom were Serio, Hopper, Blumenthal & Carmody and Francis B. Burch, Attorney General, on the brief, for appellee.

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

OPINIONBY: DIGGES

OPINION: [*454] [**384] This is an appeal from the Circuit Court for Anne Arundel County where Judge Evans denied the petition of Rufus Nicholson, Mary Reddick and Mood Gibson, [*455] appellants, for leave to sue the Commissioner of Motor Vehicles under the Unsatisfied Claim and Judgment Fund Law. n1 The facts are quite simple and not the subject of dispute.

n1 By Ch. 543, Laws of Maryland 1968, effective July 1 of that year, the Unsatisfied Claim and Judgment Fund Board replaced the Commissioner of Motor Vehicles as the party to be sued.  Since the petition here was filed after that date it should have requested permission to sue the Board rather than the Commissioner.  However, appellants' mistake is of no consequence because under the specific provisions of Art. 66 1/2, § 7-627.1 Code (1957, 1970 Repl. Vol.) whenever the petition seeks leave to sue the Commissioner the Board is automatically substituted.

[***3]

   On July 17, 1966, while passengers in a car owned and operated by John Martin, [**385] Jr., appellants were involved in an accident on Queenstown Road in Anne Arundel County, which allegedly occurred when an unknown automobile was driven into their lane of traffic.  In an effort to prevent a collision with this errant vehicle, Martin supposedly swerved his car but, though successful in his primary objective of avoiding contact with the intruder, lost control of his own automobile which ultimately turned over.  Meanwhile, the catalyst of the mishap, the unmolested phantom car, disappeared down the highway.  As a result of this accident, the passengers, on July 2, 1967, filed a petition for leave to sue the Commissioner of Motor Vehicles alleging that the crash was not caused by Martin, who was driving in "a careful and prudent manner," but instead resulted from the negligence of the unidentified motorist. The application was explicitly brought under Maryland Code (1957, 1967 Repl. Vol.), Art. 66 1/2, § 167.  (In 1970 the Legislature by Ch. 534 of the Laws of Maryland repealed and re-enacted that Article so that § 167 is now codified in the Code (1957, 1970 Repl. Vol.) as Art. [***4] 66 1/2, § 7-620.) In the event the offending driver is unknown, that section enumerates the requirements which victims of hit and run accidents must comply with before being permitted to initiate suit against the Board.  In a memorandum opinion Judge Childs denied the petition after concluding that there was [*456] no phantom car, n2 and even if "there were shown to be a second vehicle the Court is not satisfied that reasonable efforts were made to ascertain the identity of the phantom" as required by § 167 (f), now § 7-620 (5).  This section necessitates a finding by the court that:

   "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 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 consent, cannot be established."
 
Though it is unnecessary for us to decide whether the passengers made all reasonable efforts to identify the driver of the other automobile, our review discloses a record devoid of any evidence which indicates the appellants made [***5]even the slightest cursory attempt to uncover information concerning the phantom. In light of our recent decision in Grady v. Unsat. C. & J. Fund Bd. , 259 Md. 501, 270 A. 2d 482 (1970), with a factual pattern akin to the one here, where we held bare minimal efforts were not sufficient to satisfy the requirements of § 167 (f), an appeal claiming error in Judge Childs' ruling would not have been successful.  See also Hickman v. Unsatisfied C & J Fund, 255 Md. 267, 257 A. 2d 426 (1969).

n2 In Weber v. Unsat. C. & J. Fund Bd., 261 Md. 457, 276 A. 2d 86 (1971), we held that it was error for the trial court to deny a petition for leave to sue the Board based on a determination that, as a fact, there was no phantom automobile.  However, in the case now before us, while Judge Childs apparently misconstrued his function in much the same way, by finding no second vehicle was involved, he did have the authority to premise his decision on the passengers' lack of reasonable efforts to locate the other car.  In any event, no appeal was taken from the ruling that a phantom car did not exist and therefore that question is not before us.

[***6]

   Following denial of their petition, appellants filed suit against Martin. The trial court, pursuant to the procedures outlined in Rosenberg v. Manager, U. C. & J. F. Bd., 260 Md. 164, 170, 271 A. 2d 692 (1970), instructed [*457] the jury under Maryland Rule 560 to deliver a special verdict which would specify whether Martin was negligent in operating his car on that July day in 1966 or if the mishap was caused by an unknown motorist. The jury decided Martin was not at fault but that the accident resulted from the action of a phantom driver.

   Having been twice frustrated but now armed with a jury determination that a phantom car did exist, appellants, on August [**386] 10, 1970, again petitioned the Circuit Court for Anne Arundel County for leave to sue the Board, this time under § 7-622 of Art. 66 1/2 of the Code. n3 That section in part provides:

    "Other 'hit-and-run' cases.

   (a) When in an action . . . judgment is rendered for the defendant on the sole ground that the death or personal injury was occasioned by a motor vehicle --

   (b) The identity of which, and of the owner and operator of which, has not been established . . .

   (c) . . . -- such cause shall be[***7] stated in the judgment and the plaintiff in the action, within three months from the date of the entry of such judgment, may make application for authority to bring an action upon the cause of action against the Board in the manner provided in §§ 7-620 and 7-623 of this article. n4 (Emphasis added.)
 
Judge Evans denied this latest request after deciding [*458] that: "Petitioners are barred by the doctrine of res judicata from a trial de novo on the question of the exertion of 'all reasonable efforts' to ascertain the identity of the 'phantom vehicle', its owner or operator as required by Section 7-620 (5)."

n3 There were numerous delays in concluding the negligence action against Martin which prolonged this case over the many years since the occurrence of the crash.

n4 Section 7-623 states:

   "When an action has been commenced in respect of the death or injury of any person arising out of the ownership, maintenance or use of a motor vehicle in this State on or after June 1, 1959, the plaintiff shall be entitled to make the Board a party thereto if the provisions of § 7-620 or § 7-622 shall apply in the case, and the plaintiff has made the application and the court has entered the order provided for in § 7-620."

[***8]

   This appeal is taken from that ruling.  Appellants' sole contention is that Judge Evans erred by concluding Judge Childs' imtial denial of leave to sue under the Unsatisfied Claim and Judgment Fund Law constituted a bar to their bringing this later application.  We do not agree.  In determining whether the well established doctrine of res judicata applies so as to bar the granting of the petition here, we must address ourselves to the following questions:
 
(i) Is the issue presented in the current action identical to the one determined in the prior adjudication?
(ii) Are the parties in the present litigation the same or in privity with the parties to the earlier dispute?
(iii) Was there a final judgment on the merits in the initial action?
  
If the response to all these inquiries is in the affirmative then res judicata was properly invoked to prevent this matter from being relitigated.  Garrett Park v. Montgomery Co., 257 Md. 250, 257, 262 A. 2d 568 (1970); Arundel Asphalt v. Morrison, 256 Md. 170, 173, 259 A. 2d 789 (1969); A. B. Veirs, Inc. v. Whalen , 256 Md. 162, 166-67, 259 A. 2d 516 (1969); Pat Perusse Realty v. Lingo, 249 Md. 33, 238 A. 2d 100[***9] (1968).

   (i) Clearly, the issue to be decided is identical in both petitions and is even couched in the same language; the only difference between the initial application to sue the board and the latest, is that one was instituted prior to bringing an action against Martin, while the other followed an adjudication that he was not negligent.  Consequently, the suits were initiated under different sections of the Code; but it is of no significance whether [*459] § 7-620 (formerly § 167), § 7-622 or for that matter § 7-623 are utilized.  The three differ in the following manner: under § 7-620 permission is requested to sue the board prior to docketing any action; § 7-622 is employed to bring suit against the board subsequent to a determination at trial that a phantom vehicle and not the defendant [**387] was negligent; finally § 7-623 is used to ask permission to implead the Fund in a proceeding already commenced.  However, all these sections specifically require compliance with the provisions of § 7-620 which includes the necessity of reasonable efforts to ascertain the identity of the phantom vehicle -- lack of which caused the first petition to be denied.

   (ii) We[***10] need not consider whether the parties are in privity, since in both instances the same litigants are involved.

   (iii) This Court has never been called upon to specifically decide whether the denial of leave to institute an action against the Board constituted a final judgment on the merits, nor has the issue been questioned on appeal.  However, without fail, we have always considered the trial court's decision denying leave to sue the Board as a final judgment, since it is a proceeding independent of any subsequent litigation.  Cherry v. Unsat. C. & J. Fund Bd., 264 Md. 696, 288 A. 2d 136 (1972); Johnson v. Unsat. C. & J. Fund Bd., 262 Md. 90, 277 A. 2d 5 (1971); Weber v. Unsat. C. & J. Fund Bd., 261 Md. 457, 276 A. 2d 86 (1971); Jones v. Unsat. C. & J. Fund Bd., 261 Md. 62, 273 A. 2d 418 (1971); Grady v. Unsat. C. & J. Fund Bd., 259 Md. 501, 270 A. 2d 482 (1970); Hickman v. Unsatisfied C & J Fund, 255 Md. 267, 257 A. 2d 426 (1969). Though we have never had before us an appeal from the granting of an application for leave to sue the Board, the same logic would apply.  The answers here, far from requiring the abstract and ponderous consideration one associates[***11] with Rodin's "Thinker", are straightforward; in fact we would be hard put to find a case that is more obviously encompassed by the tentacles of res judicata. It is readily apparent that the trial court [*460] properly invoked the doctrine and we affirm its decision.

   Order affirmed.

   Costs to be paid by appellants. 

DAVID W. CHERTKOF TRUST v. DEPARTMENT OF NATURAL RESOURCESAND ANNE ARUNDEL SOIL CONSERVATION DISTRICT 
No. 301, September Term, 1971
 
Court of Appeals of Maryland
 
265 Md. 291; 289 A.2d 314; 1972 Md. LEXIS 950

 April  7, 1972, Decided

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

DISPOSITION: Order affirmed, appellant to pay costs.

CORE TERMS:  storm, administrative remedies, regulation, culvert, acres, water, demurrer, drainage area, drainage, exemption, Administrative Law, actual damage, flooding, modify, feet, box, administrative agency, flood control, injunction, exhausted, drain, sustaining, collecting, disposing, expertise, tributary, disposed

COUNSEL: Alan I. Baron, with whom were Sachs & Baron on the brief, for appellant.

   Warren K. Rich, Special 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 Smith, JJ.  Finan, J., delivered the opinion of the Court.

OPINIONBY: FINAN

OPINION: [*292] [**315] The David W. Chertkof Trust (Chertkof), property owner and appellant, brings this appeal from an order of the Circuit Court for Anne Arundel County, sitting in equity (Childs, J.), sustaining the demurrer of the Department of Natural Resources, an agency of the State of Maryland, and the Anne Arundel Soil Conservation District, a governmental subdivision of the State of Maryland, defendants below and appellees, and hereafter collectively referred to as the State, to the bill of complaint filed by Chertkof requesting injunctive relief.

   Chertkof in its bill states that it owns a tract of land in Anne Arundel County consisting of approximately 33 1/3 acres and that parallel to the northern boundary of this property is a tributary of Curtis Bay known as Cabin Branch which runs along the property for[***3] about 3,500 feet, until it passes under the Baltimore and Annapolis Boulevard through a box culvert with an aperture of approximately 3.8 feet by 10.2 feet. Chertkof further alleges that the State has adopted Cabin Branch as an integral part of the storm water system of Anne Arundel County and that the State is currently in the process of constructing a series of storm drains and culverts which: (1) will increase the velocity of water run off into Cabin Branch; (2) will increase the volume of water run off into Cabin Branch; (3) will increase the sediment load carried by Cabin Branch; and (4) will result in an increased effective drainage area served by Cabin Branch.  The petition also alleges that the result of current construction of culverts and storm drains will be the flooding of Chertkof's [**316]adjacent property, as well as the flooding of the Baltimore and Annapolis Boulevard due to the inadequate box culvert. It becomes significant to note that the petition states that, "At the confluence of Cabin [*293] Branch and a tributary, where the end of a channel currently under construction by the defendants is to be located, "* * * the drainage area is approximately [***4]760 acres."

   The relief sought essentially calls upon the State to control and correct the potential flood conditions it is artificially creating by channelizing Cabin Branch and enlarging the box culvert.

   The State's demurrer challenged the legal sufficiency of the bill of complaint on two grounds; (1) that Chertkof's request for an injunction was anticipatory since no actual damage was alleged, and (2) that Chertkof had not exhausted its administrative remedies. The chancellor expressly recognized the validity of both of these challenges in sustaining the demurrer and they form the issues now before us on appeal.  We prefer to discuss them in an order inverse to that presented above.

   Chertkof claims that there were no administrative remedies open to it.  We do not agree with this.  Code (1971 Supp.) Art. 96A, Sec. 12 (a), requires that all parties, including the State or any political subdivisions, wishing to change the course, current or cross-section of any stream must first obtain a permit from the Department of Water Resources of the State of Maryland.  Other provisions in the statute, which we will later discuss, establish a method whereby an aggrieved party may obtain an[***5] administrative review of the Department's actions.  However, Chertkof claims that the Cabin Branch Project is exempted from this requirement by the last phrase of Section 12 (a) which provides, "* * * nor shall it apply to drainage systems designed exclusively for the purpose of collection, conveyance or disposal of storm water."

   In response to this argument, the State contends that the Department of Water Resources by virtue of Water Resources Regulation 3.5.02C, among the regulations promulgated by that body, has determined that drainage areas of over 400 acres do not fall within the exemption of Section 12 (a) of Article 96A.  The reason given for [*294] this is that under Regulation 3.5.02, titled "When Permits are Not Required," (the exemption section), subsection C exempts: "Storm drainage systems built by or under permit from County or City concerned and draining less than 400 acres." By the very allegations of Chertkof's bill of complaint the Cabin Branch project drainage area contains some 760 acres, clearly beyond the purview of the regulatory exemption.

   In argument before this Court the point was made as to whether the Department of Water Resources by the promulgation[***6] of a regulation could modify Section 12 (a) of Article 96A.  We agree that Section 5 (d) of Article 96A, clearly states the general rule of law that the Department may "not change or modify any law enacted by the General Assembly." However, the Department contends that it has not done this by the enactment of Regulation 3.5.02C.  It reasons that the exemption from the permit requirement for drainage systems collecting or disposing of storm water, as provided by Section 12 (a), was not intended to apply to anything but storm water, whereas, when the drainage area concerned is in excess of 400 acres the problem presented is not that of collecting or disposing of storm water but rather one of flood control, which, it contends, is a different matter.  It is on this premise that it maintains that Regulation 3.5.02C does not modify or change any existing statutory provision.  Realizing the expertise which the Department is recognized as bringing to the determination of such matters, we agree with the logic of this argument.  Article 96A, Section 3.

   Accordingly, the State is required to obtain a permit for the construction of the [**317] Cabin Branch project as required by Section 12[***7] (a) of Article 96A and should Chertkof care to object to the issuing of the permit or the manner and means in which the work is to be performed, Section 54 of Article 96A (1971 Supp.) provides, that:
 
"Any person or party aggrieved by a final decision [*295] of the Department, whether such decision is affirmative or negative in form, or by any rule or regulation of Department may appeal to the Board of Review of the Department of Natural Resources as provided for in Article 41.  * * *." [Article 41, Sections 244 through 256 (1971 Repl. Vol.) contains the "Administrative Procedure Act."]

   In view of what we have stated, we are of the opinion that Chertkof has failed to exhaust the administrative remedies available to it.  In Gingell v. County Commissioners, 249 Md. 374, 239 A. 2d 903 (1968), we recognized that where a statute provides a remedy, that remedy usually must be followed, stating:
 
"* * * The reasons for requiring the exhaustion of administrative remedies before resorting to the courts are that it is within the expertise of the administrative agency involved to hear and consider the evidence brought before it and make findings as to the propriety[***8] of the action requested; courts would be performing the function that the legislature specified be done by the administrative agency; courts might be called on to decide issues that would never arise if the prescribed administrative remedies were followed; * * *." 249 Md. 376-377.
 
See also Hartman v. Prince George's County, 264 Md. 320, 324-325, 286 A. 2d 88 (1972); Spintman v. C. & P. Telephone Co., 254 Md. 423, 428, 255 A. 2d 304 (1969); and 2 Md. L. Rev. 185, at 209, Administrative Law in Maryland, by The Hon. Reuben Oppenheimer, a former member of this Court.

   The second and final issue to be disposed of is whether the demurrer was properly sustained on the basis that Chertkof did not support its claim for irreparable damage and not having sustained any actual damage at the time of the filing of the petition its action was premature.  [*296] Since we have already concluded that the demurrer should have been sustained on the basis that Chertkof had not exhausted its administrative remedies, the issue which we are presently discussing would appear to be academic, however, we deem that it best be disposed of for the future guidance of the appellant.

   The bill[***9] of complaint addresses itself entirely to future or potential damages.  Nowhere within the bill is there any assertion that actual damages have occurred as a result of the alleged inadequacy of the size of the culvert. The bill contains no allegation as to how extensive is the flood plain on Chertkof's property or the extent of the anticipated flooding in relation to it.  The bill is couched in the most general and indefinite language and is at most complaining of future potential injury.  Indeed, there is nothing in the bill to indicate how far the project has progressed.  We think Judge Childs properly held that the bill did not state grounds for the mandatory injunction requested.  Hart v. Wagner, 184 Md. 40, 45, 40 A. 2d 47 (1944); Mayor and Council of Salisbury v. Camden Sewer Co., 135 Md. 563, 569, 573, 109 A. 333 (1920); Johnston v. Glenn, 40 Md. 200 (1874); Adams v. Michael, 38 Md. 123, 128, 129 (1873).

   Order affirmed, appellant to pay costs. 

MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS v. SHEARWATERSAILING CLUB, INC. 
No. 302, September Term, 1971
 
Court of Appeals of Maryland
 
265 Md. 280; 288 A.2d 887; 1972 Md. LEXIS 948

 April  6, 1972, Decided

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

DISPOSITION: Order affirmed; appellant to pay the costs.

CORE TERMS:  protestant, charter, session, confer jurisdiction, consent of parties, summary judgment, ordinance, duty, charter provision, de novo hearing, aggrieved, quarrel, zoning, unabr, subject matter, public hearing, de novo, regulation, notified, touching, objector, unhappy, notice, pilings, minutes, advice, piers, hear

COUNSEL: Eugene M. Lerner, City Attorney, for appellant.

   Bennett Crain, Jr., with whom were Hartman & Crain on the brief, for appellee.

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

OPINIONBY: SMITH

OPINION: [*281] [**888] The Mayor and Aldermen of the City of Annapolis (the City), appellant, here complains because a trial judge granted a motion for summary judgment on behalf of appellee, Shearwater Sailing Club, Inc., (Shearwater).  We shall affirm.

   Shearwater applied to the Port Wardens of Annapolis for permission "to construct piers, pilings, bulkheading, and to dredge and fill" contiguous to its property on Spa Creek.  For a review of the powers of that body under the charter of the City see Port Wardens v. Md. Cap. Yacht Club, 261 Md. 48, 273 A. 2d 102 (1971), and Lunter v. Laudeman, 251 Md. 203, 246 A. 2d 540 (1968). The Port Wardens considered and approved the application on June 18, [**889] 1970.  More than 30 days later appeals were filed with the Mayor and Aldermen of Annapolis by certain individuals.
 
   Section 40 of the Annapolis charter[***3] as amended on March 3, 1970, provides:

   "In all differences that shall arise between any citizen of Annapolis and the said Wardens, touching the discharge of their duty, an appeal de novo shall lie to the Mayor and Aldermen.  Appeal must be filed in writing with the City Clerk within 30 days of the final decision of the said Port Wardens." n1

n1 Amended effective March 3, 1970, possibly in anticipation of our decision in Port Wardens v. Md. Cap. Yacht Club, supra, by providing specifically for a de novo appeal.  See page 2021, Laws of Maryland, 1971.

   Shearwater learned the day after the hearing that the application had been approved.  It obtained this information by a telephone call from its president to the office of the Director of Public Works of the City, an ex officio member of the Port Wardens whose office seemed to be [*282] responsible for their operation.  The citizens who attempted to appeal to the Mayor and Aldermen did not learn of the decision until more than 30 days[***4] after it was made.

   The minutes of the Port Wardens reflect opposition to the application by three named individuals, none of whom were appellants.  One of the objectors presented a petition with the names of 30 people on it who were said to oppose the application.  She was asked for a better copy of the petition "as many of the names were illegible." The president of Shearwater also requested a copy. It is claimed that the objector asked to be notified of the decision of the Port Wardens and was told that she would be so notified, a point which is in dispute. 

   The names of individuals who appealed to the City do not appear in the minutes of the Port Wardens as opponents of the application, nor have they claimed that their names were among those on the petition in opposition to the proposal or that they were present as protestants at the hearing before the Port Wardens.  In fact, the individual who executed the affidavit in opposition to the motion for summary judgment there alleged that there was a promise at the public hearing to notify a representative of the protestants of the action of the Port Wardens "[a]lthough [she did] not have personal knowledge of that fact." From[***5] this the inference can be drawn that she was not present at the hearing.  In short, there is nothing in the record to disclose any opposition on their part to the proposal prior to the appeal.

   The Mayor and Aldermen determined, against the advice of the city attorney who here has the unhappy task of attempting to defend a position contrary to his advice, that it would hear the appeal notwithstanding the time when it was filed.  It denied the application.  Shearwater then filed a bill of complaint in the Circuit Court for Anne Arundel County for a declaration that the resolution of the City was "unconstitutional, illegal and void" and to require issuance of a building permit.  Those who [*283] had appealed to the Mayor and Aldermen were permitted to become parties to the proceeding in the circuit court.  Shearwater moved for summary judgment which was granted by Judge Mayfield on the ground that the appeal was not timely filed with the Mayor and Aldermen.

   The City points to Code (1957, 1966 Repl. Vol.) Art. 23A, § 8 providing that all meetings of the legislative bodies of municipal corporations "shall be public meetings and open to the public at all times," except that executive [***6]sessions may be held, "but no ordinance, resolution, rule or regulation shall be finally adopted at such an executive session." It contends that the action approving Shearwater's application was taken at an executive session and "that there was a legal obligation and duty on the part of the Port Wardens to [**890] make its decision known to those who were promised notification." Parenthetically it should be said that nowhere in the record does it appear that this action was held at "an executive session from which the public [was] excluded." It may well be true that the public was not present when the action was taken, but that fact does not mean that the public was excluded. We do not regard that point as decisive here, however.  The City then goes on to fashion an argument that "since notice of the decision was not given to the Citizens of Annapolis by the Port Wardens * * * any Citizen could appeal within 30 days of notice or when he learned of the decision.  The appeal in this case was noted as soon as it could be, as soon as notice of the decision was made known." Therefore, it concludes the appeal is proper.

   The fallacy in the City's argument is its assumption that "any[***7] citizen" could appeal.  The right of appeal does not automatically flow from the fact that an individual may be unhappy or dissatisfied with some particular decision.  In Bosley v. Dorsey, 191 Md. 229, 60 A. 2d 691 (1948), the People's Counsel for the Public Service Commission of Maryland attempted to appeal from a decision of that commission setting rates.  He contended he had [*284] the right to appeal as an agent of the persons affected by an order fixing gas and electric rates, and that the Public Service Commission law gave him this right by implication.  The Court held that he did not come within the statute giving "the right to proceed in the courts to vacate, set aside or have modified any order of said Commission on the grounds that such order is unreasonable or unlawful" to "[a]ny company, corporation, association, person or partnership subject to any of the provisions of [that] subtitle, or other person or party in interest." It has been held that when circuit courts sit in the exercise of a special, limited statutory jurisdiction there is no appeal to this Court unless the appeal is granted by statute.  Simpler v. State, Use of Boyd, 223 Md. 456, 460-61, [***8] 165 A. 2d 464 (1960); Davis v. Board of Education, 166 Md. 118, 123, 170 A. 590 (1934); M., &c., Hyattsville v. Washington, W. & G.R.R., 124 Md. 577, 580, 93 A. 151 (1915), and cases there cited.  More recently in Urbana Civic v. Urbana Mobile, 260 Md. 458, 272 A. 2d 628 (1971), we held the County Commissioners of Frederick County without authority to pass an ordinance providing for judicial review of subdivision regulations.

   Parties to a proceeding cannot by their consent confer jurisdiction on this Court to hear a matter.  Eggert v. Montgomery Co. Council, 263 Md. 243, 247, 282 A. 2d 474 (1971), and Price v. Hobbs, 47 Md. 359, 378 (1877). Nor may the parties by consent confer jurisdiction upon any court.  Hadaway v. Hynson, 89 Md. 305, 315, 43 A. 806 (1899); Danner v. State, 89 Md. 220, 228, 42 A. 965 (1899); and Meyer v. Henderson, 88 Md. 585, 593, 41 A. 1073 (1899). In Price Judge (later Chief Judge) Alvey said for the Court:

   "These actions being actions at law, of course, no consent of parties can confer power or jurisdiction on this court to review the judgments therein, and determine the rights of parties upon any other principles than[***9] such as properly [*285] apply to such actions, and which the court below would have been authorized to make the rule of its decision.  Otherwise, it would be in the power of the parties to a cause, by their mere agreement, to confer original jurisdiction, where the Constitution and laws have conferred appellate jurisdiction only.  The jurisdiction of this court is one solely of review, and the consent of parties cannot clothe it with power, on an appeal from a judgment at law, to convert the action into a bill in equity, and so shape and form the proceedings as to give force and effect to principles exclusively of equitable cognizance.  It is a well established maxim that consent of parties will not confer jurisdiction on a court, where no jurisdiction exists [**891] without such consent.  Bents v. Graves, 3 McCord, 280; Overstreet v. Brown, 4 McCord, 79; Lindsay v. McClelland, 1 Bibb, 262." Id. at 378-79.

   Where a statute establishes a fact-finding body or commission and it has jurisdiction over the parties and the subject matter its decisions on questions of fact are conclusive and final in the absence of fraud, unless an appeal is provided by law to some[***10] appellate or supervisory tribunal. Schluderberg, Etc. Co. v. Baltimore, 151 Md. 603, 613-14, 135 A. 412 (1926).

   In cases that have arisen under some zoning ordinances a person in order to appeal must be one "aggrieved by the decision of the board." In DuBay v. Crane, 240 Md. 180, 213 A. 2d 487 (1965), Judge Horney said for the Court:

   "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 [*286] personally and specially affected in a way different from that suffered by the public generally.  See Loughborough v. Rivermass, 213 Md. 239, 131 A. 2d 461 (1957); Pattison v. Corby, 226 Md. 97, 172 A. 2d 490 (1961); Toomey v. Gomeringer, 235 Md. 456, 201 A. 2d 842 (1964); Marcus v. Montgomery County Council, 235 Md. 535, 201 A. 2d 777 (1964); and City of Greenbelt v. Jaeger, 237 Md. 456, 206 A. 2d 694 (1965)." Id. at 185.
 
See also Shore Acres v. Anne Arundel Co., 251[***11] Md. 310, 316, 247 A. 2d 402 (1968); Bryniarski v. Montgomery Co., 247 Md. 137, 144, 230 A. 2d 289 (1967); and Town of Somerset v. Board, 245 Md. 52, 225 A. 2d 294 (1966).

   The appeal granted in the Annapolis charter is concerned with "differences that shall arise between any citizen of Annapolis and the said Wardens, touching the discharge of their duty." Webster's Third New International Dictionary (unabr. ed. 1961) defines "difference" in the sense it is here used as "disagreement in opinion," while The Random House Dictionary of the English Language (unabr. ed. 1967) defines it as "a dispute or quarrel." In Port Wardens v. Md. Cap. Yacht Club, 261 Md. 48, 59, we expressly held under the charter provision as it then existed that the appeal to the Mayor and Aldermen from the Port Wardens was "confined to the record made before the Port Wardens and that no de novo hearing [was] contemplated." Although the charter has since been amended to provide for a de novo hearing, the charter provision has not otherwise been changed.

   We conclude that the "disagreement in opinion," "dispute," or "quarrel" by way of a "difference" that a citizen of Annapolis may have[***12] with the Port Wardens which he may appeal to the Mayor and Aldermen is not a mere disapproval as a member of the public at large of some action of the Port Wardens, but must arise from that citizen's having been involved in a matter pending before that body, either as applicant or protestant, a person [*287] involved in the record making process.  The appellants from the decision of the Port Wardens do not appear from the record to have been involved in any way in the hearing.  Therefore, there is no difference which they are permitted to appeal and that appeal should not have been entertained by the Mayor and Aldermen for that reason.  Accordingly, we do not reach the question of the timeliness of the appeal.

   Order affirmed; appellant to pay the costs. 

MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS et al. v. WESTANNAPOLIS FIRE AND IMPROVEMENT COMPANY et al. 
No. 258, September Term, 1971
 
Court of Appeals of Maryland
 
264 Md. 729; 288 A.2d 151; 1972 Md. LEXIS 1191

 March  10, 1972, Decided

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

DISPOSITION: Decrees of 30 December 1970 and order of 10 February 1971 affirmed, costs in each case to be paid by appellants.

CORE TERMS:  firehouse, residents, gift, appropriation, aldermen, resulting trust, municipality, charitable, constructive trust, charitable trust, charter, relocate, equipment purchased, corporate purpose, engine, donors', alarm, moral obligation, legal title, territory lying, express trust, effectually, contiguous, chancellor, relocation, non-profit, adjacent, annual, valued, entitled to retain

COUNSEL: Eugene M. Lerner, City Attorney, for Mayor and Aldermen of the City of Annapolis, one of appellants.  Nicholas J. Fotos for Mary W. Proskey et al., other appellants.

   Frank R. Weathersbee and Frank B. Walsh, Jr., for the West Annapolis Fire and Improvement Company, part of appellees.  No brief filed on behalf of other appellees.

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

OPINIONBY: SINGLEY

OPINION: [*731] [**152] Only the most naive city dweller would find credible a rumor that a company of his city's fire department proposed to sell its firehouse and move its trucks and equipment to a new firehouse which it planned to build somewhere in the county.  Yet this is precisely what has happened in Annapolis, and neither the Mayor and Aldermen [*732] of the City of Annapolis (the City) nor Mary M. Proskey, together with a group of nine of her neighbors[***6] and two neighborhood associations (referred to collectively as the Residents), all appellants here, have been able to stop the contemplated hegira.  As is so frequently the case, it is the factual background which bridges the credibility gap.

   There came a time in 1911 when the West Annapolis Fire and Improvement Company (the Fire Company) was incorporated, having no capital stock,
 
"* * * the more effectually to protect the property of the Citizens of Anne Arundel County, especially that portion thereof known as West Annapolis and the territory lying adjacent and contiguous thereto, from loss and damage by fire and for the general improvement and betterment of said portion of Anne Arundel County * * *."

   Less than a year later, one Elizabeth Giddings conveyed a lot at the corner of Severn Avenue and Randall Street to the Fire Company, apparently as a gift. The habendum clause of the deed provided, in part:
 
"* * * that should [The West Annapolis Fire and Improvement Company] * * * cease to use said lot and the building thereon erected as headquarters for the Volunteer Fire Association, then the said lot of land shall immediately revert to the said Elizabeth Giddings."[***7]

   [**153] The Fire Company built a firehouse on the lot, now known as 501 Melvin Avenue, and in 1924, purchased the adjoining lot as well as the reversionary interest reserved in the 1912 conveyance.  During this entire period, and for some years thereafter, West Annapolis was an unincorporated, largely residential community, lying outside the corporate limits of Annapolis.

   The next development occurred in 1951, when West Annapolis, including the area where the Fire Company [*733] is located, was annexed by the City.  In anticipation of this change, on 30 December 1950, the Fire Company leased its firehouse to the City at a nominal annual rent of $1.00, the City assuming responsibility for maintenance and repairs.  The lease was for a term of one year, and automatically renewed itself from year to year.  There was a further provision that the lease would terminate if the Fire Company ceased "to be an active fire fighting unit of the City of Annapolis" or ceased to "operate as such in and from the buildings and premises * * * demised." The Fire Company was not paid for the equipment which it owned at the time of the annexation. Thereafter, the Fire Company became a part of[***8] the City's fire department.  There was testimony that from 1952 through 30 June 1969, the City made annual payments to, or for the account of the Fire Company for the purchase of equipment which amounted in the aggregate to $82,772.00. n1 The appropriation for the fiscal year ended 30 June 1970 was $6,334.

n1 Captain John W. Smith, of the Fire Company, testified that this amount represented about 25% of the expense of operating the Fire Company during the period.  The balance was raised at carnivals, bazaars or suppers and from voluntary contributions.

 
   The City was understandably concerned when it learned in December of 1969 that the Fire Company had contracted to sell its firehouse and the adjoining lot to the Anne Arundel County Board of Education, after having previously entered into negotiations for the purchase of a site for a new firehouse, some three miles distant, outside the corporate limits of Annapolis. n2

n2 At argument, we were told that the Fire Company had selected another location in Anne Arundel County about a mile and a half distant from the present firehouse. This was not in evidence in the court below, and is not before us.

[***9]

   The residents of West Annapolis were equally concerned, but for different reasons: the firehouse had for years served as a community center and the Fire Company had been supported by the voluntary contributions of residents of the West Annapolis area, entirely from 1911 to 1951, and in large part from 1951 to 1969.

   As a result, two equity suits were brought in the Circuit [*734] Court for Anne Arundel County: one by the City, which sought to impress certain of the equipment and apparatus with a trust in its favor. n3 The other suit, instituted by the Residents, sought a declaration that the assets of the Fire Company constituted a charitable trust, held for the benefit of residents of West Annapolis, and prayed that the sale of the firehouse be annulled and that the removal of the trust assets be enjoined.  The cases were consolidated for trial. From decrees dismissing both bills of complaint, and from an order that the 1970 appropriation of $6,334 be paid to the Fire Company, these appeals were taken.

n3 The equipment which the City sought to reach was engine 401, purchased in December, 1967, valued at $38,500; engine 402, purchased in January, 1962, valued at $20,500, and 7,200 feet of hose, valued at $10,630.  No claim was made as regards a pumper purchased by the Fire Company in 1946.

[***10]

   In a nutshell, the chancellor found no evidence that the funds paid to or for the account of the Fire Company were paid on condition that the Fire Company would not relocate or with the understanding that equipment purchased in the Fire Company's name would be treated as the property of the City, and dismissed the City's bill.  [**154] Declaratory relief was denied the Residents because there was no evidence that the relocation of the Fire Company would mount up to a departure from its stated corporate purpose.

   The City's Appeal

    The City argues that the court below erred, first, in not imposing a trust in favor of the city on equipment which had been paid for by the City, but titled in the name of the Fire Company; and second, in not requiring the return of $6,334 which would have been paid the Fire Company for the fiscal year ended 30 June 1970, but had been paid into court during the pendency of the litigation.

   Five aldermen or former aldermen testified, and it was stipulated that the City's mayor and as many as 12 aldermen or former aldermen would testify, if called, [*735] that they would never have voted in favor of the appropriations made to the Fire Company had[***11] they known that the Fire Company was planning to move from the city and take its equipment.

   The court below found as a fact that the grants had not been made subject to a condition that the Fire Company would never relocate, or that the equipment would be treated as the property of the City, and observed, "[a]n unspoken assumption on the part of the Aldermen that this would be so is not enough." There was a further finding that the annual appropriations had been made to insure that the Fire Company was properly equipped to fight fires in its area. n4 That it was an effective fire fighting unit is not disputed and thus the court concluded that the Fire Company was entitled to retain the equipment and the funds, including funds appropriated for fiscal 1969-1970, see Rescue Fire Co. v. County Comm'rs, 188 Md. 354, 359, 52 A. 2d 733 (1947).

n4 The testimony of City officials made it clear that it was impossible to establish with absolute certainty that the fire engines had been purchased entirely with City appropriations. At time of trial, some $19,000 was still owed by the Fire Company on engine 401.

[***12]

   Since the City was unable to prove the existence of an express trust, it can only prevail if the circumstances gave rise to an implied trust, Springer v. Springer, 144 Md. 465, 475, 125 A. 162 (1924).
 
"Implied trusts may be either resulting or constructive trusts.  A resulting trust arises upon the presumed intention of the parties where the terms of the disposition or accompanying facts establish that beneficial interest is not to go with legal title." Siemiesz v. Amend, 237 Md. 438, 441, 206 A. 2d 723 (1965). 

   And while it is true that where a purchase price is paid by one person, and title is taken in the name of another, it is presumed that the person taking title holds the property in trust for the person who paid the purchase price,
 
[*736] "[t]his presumption, however, does not arise where the legal title is taken in the name of some person for whom the purchaser is under a legal or moral obligation to provide.  In such case the presumption arises that the conveyance was intended as an advancement to the nominal purchaser." Dixon v. Dixon, 123 Md. 44, 57, 90 A. 846 (1914).
 
 Here, the bulk of the funds paid by the City to the Fire[***13] Company were paid under legislative mandate, see, e.g., Ch. 718 of the Laws of 1955 and Board v. Baden Vol. Fire Dep't, 257 Md. 666, 264 A. 2d 844 (1970). As a consequence of the legal obligation, the presumption does not arise, and the City has the burden of proving the establishment of the trust by plain, unequivocal and convincing evidence, Fasman v. Pottashnick, 188 Md. 105, 109-10, 51 A. 2d 664 (1947); Sands v. Church of the Ascension, Etc., 181 Md. 536, 30 A. 2d 771 (1943). This the City has failed to do.  To the extent that funds were not required to be paid by law, they can be regarded as the discharge of a [**155]moral obligation to pay for the services of the Fire Company.

   The City fares no better with its argument that a constructive trust was established.
 
"Equity creates such a trust where a person holding title to a property is subject to an equitable duty to convey it to another person on the ground that he would be unjustly enriched if he were permitted to retain it.  Such a trust may arise because the property was acquired through duress, fraud, undue influence or mistake, or through a breach of fiduciary duty, or through wrongful disposition[***14] of another's property.  [citing cases]." Siemiesz v. Amend, supra, 237 Md. at 441-42.
 
The City's difficulty stems from the principle that a constructive trust, if it is to be established, must ordinarily [*737] be established from circumstances surrounding the inception of the transaction, and not from the effect of subsequent events, Corbett v. Hospelhorn, 172 Md. 257, 275, 191 A. 691 (1937). There is not even an intimation of conditions imposed on the Fire Company, or of promises made by it, at the time money was appropriated or equipment acquired or transferred.

   We think the chancellor was entirely correct in dismissing the City's bill of complaint and in directing that the 1969-1970 appropriation be paid to the Fire Company.

   The Residents' Appeal

   The Residents stake their hopes on the argument that the Fire Company is a charitable corporation, that gifts to such a corporation created a charitable trust, susceptible of enforcement by ascertainable beneficiaries, and that it was beyond the Fire Company's powers either to amend the purpose clause of its articles of incorporation or to relocate its firehouse.

   While we are unwilling to accept the idea that[***15] a charitable trust was created, there is no question in our minds that the case law dealing with gifts to corporations organized for charitable, educational, or religious purposes is equally applicable to gifts to a non-profit corporation, formed to advance the public good, such as a volunteer fire company which performs services usually regarded as a function of government, see Williams v. Rescue Fire Company, 254 F. Supp. 556 (D. Md. 1966); Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 A. 553 (1888); 15 Am. Jur. 2d Charities § 146, at 155 (1964); 2 Restatement, Trusts 2d § 373 a, at 256 (1959).

   In Sands v. Church of the Ascension, Etc., supra, 181 Md. 536, two vestrymen had given the church bonds in an aggregate principal amount of $20,000 with a letter:

   "It is our wish that the income from these bonds be used only for the payment of the Ground Rent as it becomes due and said income is not to be used for any other purpose whatsoever, [*738] neither must the income of the bonds or the bonds be used to borrow money on.  Further if at any time the Vestry can buy out or extinguish the Ground Rent at a price satisfactory to them, they can sell the bonds and[***16] apply the proceeds to said extinguishment of the Ground Rent.  Also, if at any time the Vestry can sell the bonds and buy other securities that they may deem better or more profitable, they can do so, but must replace the securities so purchased in place of those sold."
 
In 1932, the church property was sold, and in 1941, an accountant found the letter.  Suit was brought by the residuary legatees under the donors' wills, who contended that the bonds were impressed with a trust, and that when the church property was sold and the bonds were no longer needed for the purpose intended, a resulting trust arose in favor of the donors' estates.  The Church of the Ascension's position that it was entitled to retain the bonds was upheld, both in the lower court and on appeal.

   [**156] The case is a source of authority for several propositions which are apposite here: first, that an express trust cannot exist where the same person has both legal title to and beneficial enjoyment of the property, Brandt, Inc. v. Y.W.C.A., 169 Md. 607, 182 A. 452 (1936); second, that where property is given to a corporation for such uses as are within its corporate powers, no trust is created, [***17] Baltzell v. Church Home, 110 Md. 244, 274, 73 A. 151 (1909), and finally, that in the absence of a clear reservation of a reversion, what might otherwise be construed as a condition will be regarded as the donor's expression of confidence that the property will be used for the intended purpose so far as may be reasonable and practicable, Columbia Bldg. Co. v. Cemetery of Holy Cross, 155 Md. 221, 229, 141 A. 525 (1928).

   Later cases have refined these principles.  Inasmuch Mission v. Merc. Tr. Co. , 184 Md. 231, 239, 40 A. 2d 506 (1945) held that the fact that a charitable institution [*739] to which a bequest has been given is under a different ownership and management from that which the testator knew does not work a forfeiture, especially when the change is for the purpose of insuring continued existence.  Gray v. Harriet Lane Home, 192 Md. 251, 64 A. 2d 102 (1949) held that a bequest for the treatment of diphtheria and scarlet fever patients could be used in support of other corporate purposes when the incidence of the two diseases declined.  Loats Asylum v. Essom, 220 Md. 11, 150 A. 2d 742 (1959) permitted the sale of real estate devised to a home for orphan[***18] girls, and the use of the sale proceeds in support of girls in foster homes.  Gordon v. City of Baltimore, 258 Md. 682, 267 A. 2d 98 (1970) upheld the power of the trustees of the Peabody Institute to transfer the Institute's library to the Enoch Pratt Free Library.

   It is imprecise to characterize any gifts to the Fire Company as creating a charitable trust: first, because it held both legal and equitable title, and second, because the assets of the Fire Company represent the accumulation of funds given to or raised by the Fire Company in support of its corporate purpose, Gordon v. City of Baltimore, supra, 258 Md. at 702-03; Howard, Charitable Trusts in Maryland, 1 Md. L. Rev. 105, 121 (1937). Our prior decisions make it clear that when a gift is made to a charitable corporation, even though it be made for a particular purpose and it proves impossible or impractical for the donee to perform the donor's desires, no condition subsequent will be implied unless there is a clear expression of the grantor's intention that there be a gift over on default, Gordon v. City of Baltimore, 258 Md. at 704; Gray v. Harriet Lane Home, 192 Md. at 264; Sands v. Church of the [***19] Ascension, Etc., 181 Md. at 542, all supra.

   If there were an intimation that the Fire Company was about to suspend operations or substantially deviate from its corporate purpose, different considerations might come into play, compare Peter v. Carter, 70 Md. 139, 16 A. 450 (1889) with Bryan v. Board of Education, 151 U.S. 639, [*740] 14 S. Ct. 465, 38 L. Ed. 297 (1894) and Paterson v. Paterson Gen. Hospital, 97 N. J. Super. 514, 235 A. 2d 487 (1967). Such is not the case, however.  There was testimony that the Fire House was dilapidated and unsanitary, giving rise to complaints by the paid firemen, and that a new building in a different location might not only make possible the recruitment of badly needed volunteers but also permit the scheduling of a variety of income-producing social events.  A map was admitted in evidence showing that the present location of the firehouse was at the edge of the Fire Company's first due area and of its first alarm area. n5 There was testimony that the proposed location, although in the county, and [**157]outside the first due area, was in the center of the first alarm area, and as close to about one-half of the first due[***20] area as is the present firehouse. A table was introduced showing that the Fire Company responded to far more calls in the county than it did in the city. n6 The chancellor found
 
"* * * nothing in the evidence to indicate that the * * * [charter] purpose -- ['* * * the more effectually to protect the property of the Citizens of Anne Arundel County, especially that portion thereof known as West Annapolis and the territory lying adjacent and contiguous thereto * * *'] will not be substantially or, perhaps, better served, by the proposed relocation."
 
nor do we.

n5 A first due area is that in which a fire company is expected to be first at the scene of the fire; a first alarm area, that in which it responds to all calls.

n6 In the period 1962-1970, the Fire Company responded to 2,238 calls, 60.6% of which were in the county, 8.65% of which were in West Annapolis, 4.5% of which were in Admiral Heights, and some 26% of which were in the remainder of the City of Annapolis.

   The Residents make[***21] much of the fact that in March 1970, some two months after suit was instituted, the Fire Company amended its articles of incorporation, rewording the purpose clause to read
  
[*741] "* * * to enable the members to more effectively protect the property of the citizens of Anne Arundel County, especially that portion thereof known as the Sixth and Second Assessment Districts, from loss and damage by fire * * *."

   If, as we understand, the Sixth Assessment District comprises the City of Annapolis, and the Second District, that portion of the county lying generally to the west and northwest of the city, the distinction complained of is one without a difference, and is nothing more than a more precise delineation of geographical boundaries.

   Decrees of 30 December 1970 and order of 10 February 1971 affirmed, costs in each case to be paid by appellants. 

PRIMA PAINT CORPORATION v. AMMERMAN, individually, etc. etal. 
No. 193, September Term, 1971
 
Court of Appeals of Maryland
 
264 Md. 392; 287 A.2d 27; 1972 Md. LEXIS 1153

 February  9, 1972, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed March 6, 1972; Denied March 7, 1972.

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

DISPOSITION: Judgment affirmed, costs to be paid by appellant.

CORE TERMS:  invoice, delivery, notice, handwritten, typewritten, column, mechanics', printed, notation, decisive, typewriting, prevailed, commercial paper, furnishing, ambiguity, claimant, ninety, distinctive, predecessor, painting, trading, paint

COUNSEL: Maurice C. Pincoffs, Jr., for appellant.

   Arthur A. Anderson, [***2]  Jr., for appellees.

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

OPINIONBY: HAMMOND

OPINION: [*393] [**27] The parties are in agreement that the trial judge's statement of the facts and the decisive issue in the case cannot be improved on and, although the appellant, the mechanic's lien claimant, strongly disagrees, we find that the judge's conclusion that the appellant had not proved its case to be equally sound.  Judge Childs said:

   "In this proceeding to enforce a mechanic's lien for materials supplied, the plaintiff's cause would seem to hinge entirely upon the date of final delivery of the last paint delivered by the plaintiff for use by defendant's predecessor in title.  Evidence of this particular delivery depends entirely upon the plaintiff's business records, for no one on behalf of the plaintiff or one connected in any way with the transaction professed to have personal knowledge or recollection of the details of the final shipment.  There is no question as to the receipt of the notice or as to the authority of the person to whom the notice was sent or as to the legal sufficiency of the notice, [***3] itself. 

   "One Jan Strompf, trading as Jan Strompf Construction Company, in 1967 was engaged in constructing an apartment complex known as [*394] Fountain Green Gardens in Laurel, Maryland.  He had subcontracted the painting for this project to Mr. Gerald Golden, trading as G and H Painting Company.  Mr. Golden at the time was involved in several other contracts in the Laurel and Baltimore areas. Strompf became a bankrupt, and Prima went unpaid.  A notice by Prima Paint Corporation dated August 16, 1967 to the defendant Fountain Green Corporation, predecessor in title of the defendant Ammerman, was received on the same date. Article 63, Section 11 of the Annotated Code of Maryland, 1968 Replacement Volume, requires a person furnishing materials to give notice in writing to an owner within ninety days after furnishing the materials.  Consequently, [**28]if the last delivery by the plaintiff were actually made on May 17th, the notice was one day late.  (May 17, 1967 and August 16, 1967 both fell on Wednesday.  Neither day was a legal holiday.) However, if the delivery were made on May 18th the notice was timely.  Plaintiff's case must stand or fall upon its invoice number[***4] 6953, Plaintiff's Exhibit 3, which bears a typed order date of May 18th, 1967 and a handwritten date of invoice May 17, 1967.

   "Plaintiff's counsel urges upon the court that the date of invoice is actually May 19, 1967.  This the court cannot accept.  The handwritten figure seven appears at least six other times in the unit price and extension columns. Likewise, in the extension column appears the figure nine.  The person who wrote the figures in the date of invoice block and the extension column had a distinctive manner in writing the figure seven and when all sevens appearing on the invoice are compared (for instance the figure 4697 appears in the extension column, the fifth line from the top) the figure nine and the figures [*395] seven are completely distinctive and dissimilar.  The court must therefore attempt to resolve the question as to when delivery was actually made.  Invoice 6953 bears the notation "pick up." An uncompleted copy of this invoice was signed by Earl Hunt who testified that he at the time was picking up paint for G and H but he could not recall the date.

   * * *

   "The burden of proving the cause of action to enforce mechanic's lien lies upon the claimant. [***5] District Heights Apartments v. Nolan Company, 202 Md. 43. Likewise, where there is an ambiguity in a document it will be most strongly construed against the one who prepared it.  Kelly Construction Company v. Sanitary Commission, 247 Md. 241. n1 * * *

   * * *

   "In applying these various rules of construction this court holds that the plaintiff has not met its burden of proof.  Plaintiff, as the author [*396] of the document offered to support its case, must have the ambiguity inherent in the invoice construed against it.  The handwriting must prevail.  While it is possible to have a date of invoice differ from a date of order, it is illogical to assume that a delivery could be invoiced before it was ordered unless plaintiff possessed powers of clairvoyance.  An invoice must, of necessity, be made coincident with or subsequent to an order but certainly not before.  The court notes that invoice number 6952, (Exhibit 2), the invoice immediately preceding the one in question, [**29] bears an order date of May 16, 1967, and invoice date of May 17, 1967.  Moreover, the sum of $48.38, the charge made on invoice 6953, was actually posted on the plaintiff's books of[***6] account on May 17, 1967 (Exhibit 1).  There was no explanation as to how such a thing could occur under plaintiff's procedures if the order were actually made on May 18th.  These facts are further indication to the court that the typewritten date of May 18, 1967 was in error which could have arisen either through a mistake by the typist in determining the date, or in striking the wrong key.  Accordingly, the court rules that the plaintiff's bill of complaint must be dismissed."

n1 At this point Judge Childs quoted § 37 of Art. 35 of the Code, which provides that all typewriting done for any purpose in any instrument "shall have the same legal force, meaning and effect as writing, and writing shall be taken and held to include typewriting * * *," and then cited Schapiro v. Chapin, 159 Md. 418, saying that the case "ignored [§ 37 of Art. 35] and held that a handwritten portion of a contract prevailed over a typewritten portion." Actually, the case held that handwritten and typewritten portions of a contract prevailed over the printed portions.  Appellant, pointing this out, says it shows the trial judge based his rejection of its claim on a mistaken theory of law.  The argument is unsound because Judge Childs did not find that the handwritten notation "5/17/67" showed that the delivery was made that day rather than on the next day, the notation as to which was typewritten. Rather, the essentiality of his finding was that appellant had not met its burden of showing that delivery had been made on May 18, or later, and this being so it would be immaterial on what earlier day it had been made.

   Section 37 of Art. 35 has not been cited in any case since its passage 72 years ago, and as far as commercial paper is concerned, would appear to have been superseded by Code (1957, 1964 Repl. Vol.), Art. 95B, § 3-118(b), which provides:

   "Handwritten terms control typewritten and printed terms, and typewritten control printed."
The rule of 3-118(b) follows the general law.  See 17 Am. Jur. 2d § 271, p. 679. 

[***7]

   We think that the evidence presented to Judge Childs tended to indicate that the crucial delivery was made on the untimely day of May 17.  That, however, was not the decisive question.  The decisive question was whether delivery had been made on the timely day of May 18, or later, and the appellant bore the burden of answering the question to the satisfaction of the trier of fact.  We think Judge Childs did not err in finding that appellant had not met that burden.

    Judgment affirmed, costs to be paid by appellant. 

BONA et al. v. GRAEFE et al. 
No. 103, September Term, 1971
 
Court of Appeals of Maryland
 
264 Md. 69; 285 A.2d 607; 1972 Md. LEXIS 1123; 48 A.L.R.3d660; 10 U.C.C. Rep. Serv. (Callaghan) 47

 January  11, 1972, Decided

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

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

CORE TERMS:  cart, chattel, lease, bailment, lessor, warranty, breach of warranty, strict liability, brake, landlord, golf cart, impliedly, bailee, hire, analogy, strict liability in tort, declaration, lessee, bailor, leased, drove, path, tee, Uniform Sales Act, repairs, tenant, user, case law, suitability, inspection

COUNSEL: William A. Franch, with whom were Goldsborough & Franch and Louis M. Strauss on the brief, for appellants. [***3]

   Robert E. Cadigan, with whom were Smith, Somerville & Case on the brief, for appellee G. Edward Graefe.  Donald L. Merriman, with whom were Merriman, Crowther & Merriman on the brief, for appellee Royce Distributors, Inc.

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

OPINIONBY: SINGLEY

OPINION: [*71] [**608] Rudolph V. Bona, who sustained serious injuries when he was thrown from a runaway golf cart, brought suit in the Circuit Court for Anne Arundel County.  The defendants were Royce Distributors, Inc. (Royce), the owner of the cart; G. Edward Graefe, the golf professional at and manager of the golf course, to whom the cart had been leased by Royce, and by whom it was subleased to Bona, and James J. Carrigan, who was operating the cart at the time of the accident.  One count of the declaration sounded in negligence against all three defendants; a second count, against Royce and Graefe only, alleged breach of warranty, and a third, also against Royce and Graefe, sought to impose strict liability. A fourth count, dismissed by counsel at trial, asserted a claim of Mrs. Bona for loss of salary[***4] while caring for her husband.  The fifth count was the joint claim of Mr. and Mrs. Bona for loss of consortium.

   At the end of the plaintiff's case, the trial court entered directed verdicts in favor of Royce and Graefe on counts one, two, three and five, and Carrigan rested.  The case against Carrigan went to the jury, which brought in a verdict in his favor.  Mr. and Mrs. Bona have appealed.

   The appeal comes to us on a narrow question: was the trial court in error when it entered directed verdicts in favor of Royce and Graefe on the second (breach of warranty) and the third (strict liability) counts of the declaration? 

   On a Sunday in August of 1969, Bona, who had been a member of the South Sherwood Forest Golf Club for several years, where he played two or three times a week, was a member of a foursome which planned to play the course that day. Two golf carts were rented: one by Bona, which Carrigan operated; another by Fred A. Dammeyer and Theodore B. Foster, which Dammeyer [*72] operated.  An employee of Graefe's removed Bona's cart from the storage area, and drove it around the putting green.  It was there that the employee said he tested the brake and found it working[***5] properly.  Carrigan said he saw the employee test the cart; Bona said that he was not aware of this.  The cart was delivered to Carrigan near the first tee. He drove it to the first tee; he and Bona teed off, and both of them got in the cart and headed for the first green, following the cart occupied by Dammeyer and Foster.  There was testimony that players customarily took a macadam-covered path about 60 feet long, which descended a steep grade and then made a left turn at the foot of the descent where the path ended, in order to reach the fairway.

   Carrigan had testified on deposition that he applied the brake when he reached the crest of the hill and "there wasn't any." He shouted to the occupants of the other golf cart, which Carrigan thought was about 10 feet ahead of him.  They pulled to the right, he passed them and ultimately struck an earth embankment, where Bona was thrown out just before the cart tipped over.

   It will be remembered that Bona's appeal does not question the correctness of the [**609] jury verdict entered in Carrigan's favor, see Miller v. Robinson , 241 Md. 335, 216 A. 2d 743 (1966); Annotation, Liability For Injury Incurred In Operation Of Power [***6]  Golf Cart, 17 A.L.R.3d 1430 (1968), or of the directed verdicts entered in favor of Royce and Graefe on the negligence count, but rather rests on the argument that the case against them should have gone to the jury on breach of warranty and strict liability. Unhappily for Bona, the route which he must take to achieve his goal is steeper than the path where the accident occurred.

   Perhaps no uniform act was the subject of more extensive study and debate prior to its adoption than the Uniform Commercial Code (the UCC), Maryland Code (1957, 1964 Repl. Vol.) Art. 95B.  The express warranty provisions of § 2-313 and the warranty of fitness implied [*73] by § 2-315 are parts of Article 2 of the UCC, which is clearly limited to sales of goods.  Bona would have us read the sections as being also applicable to bailments for hire. Perhaps one answer to this contention, like A. P. Herbert's Lord Mildew's, is that if the draftsmen had intended the sections to apply to leases of goods as well as to sales, they should have said so. n1

 n1 "If Parliament does not mean what it says it must say so." A. P. Herbert, The Uncommon Law (1936) at 192.

[***7]

   A hint of what the draftsmen may have had in mind can be found in Official Comment 2 to UCC § 2-313, which says, in part:

   "Although this section [dealing with express warranties] is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this Subtitle are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined either to sales contracts or to the direct parties to such a contract.  They may arise in other appropriate circumstances such as in the case of bailments for hire, whether such bailment is itself the main contract or is merely a supplying of containers under a contract for the sale of their contents.  * * * [T]he matter is left to the case law with the intention that the policies of this Act may offer useful guidance in dealing with further cases as they arise."

   It seems anomalous to us that many authors of the texts and commentaries seem to take the stance that there should be no differentiation between sales and bailments under Article 2 of the UCC, reasoning either by analogy or by interpretation, Murray, [***8] Under the Spreading Analogy of Article 2 of the Uniform Commercial Code, 39 Fordham L. Rev. 447, 449 (1971); 1 Anderson on the Uniform Commercial Code § 2-314:96, § 2-314:100 (2d ed. 1970); Comment, The Extension of Warranty [*74] Protection to Lease Transactions, 10 B. C. Ind. & Com. L. Rev. 127, 134 (1968); Farnsworth, Implied Warranties of Quality in Non-Sales Cases, 57 Colum. L. Rev. 653, 655 (1957). A vigorous dissent may be found in Comment, Application of Article 2 of the Uniform Commercial Code to Leases, 1969 Wash. U. L. Q. 90 (Winter, 1969).  Of at least tangential interest are Comment, Dual Nature Contracts and the Uniform Commercial Code, 28 Md. L. Rev. 136 (1968), which discusses the application of the "essence" test to divisible contracts, and 2 Harper and James, Law of Torts, § 28.19, at 1577 (1956), which advocated extending Uniform Sales Act warranties to bailments for hire.

   For us to accept Bona's contention would take us beyond the limits of judicial restraint and into the area of judicial legislation, a journey which we refused to make in Howard v. South Baltimore General Hospital, 191 Md. 617, 619, 62 A. 2d 574 (1948). In[***9] similar vein, we declined to extend by analogy the warranty implied by the UCC to the sale of goods to the sale of real estate, saying that if there were to be [**610] a change, it should be by the legislature and not by the courts, Allen v. Wilkinson, 250 Md. 395, 398, 243 A. 2d 515 (1968). n2

n2 See, however, Code (1957, 1966 Repl. Vol., 1971 Cum. Supp.) Art. 21, § 95B for an instance where this hiatus was at least partially bridged by the Legislature by Ch. 151 of the Laws of 1970.

   Concededly, a few courts have read UCC § 2-315 as being applicable to cases where a chattel is the subject of a lease rather than a sale.  Some of these cases may be found in CCH Products Liability Reporter para. 1186, at 1052-53 (1970).  Most frequently these are instances where the arrangement, although called a lease, is analogous to a sale in that the rental installments are equivalent to the purchase price plus interest, or a purchase is contemplated at the end of the lease period, and the lessee assumes obligations[***10] more consistent with ownership than with bailment, KLPR TV, INC. v. Visual Electronics Corp., 327 F. Supp. 315 (W.D. Ark. 1971); Hertz Com'l Leas. Corp. v. Transportation Cr. Cl. H., [*75] 59 Misc. 2d 226, 298 N.Y.S.2d 392 (N.Y.C. Civ. Ct. 1969); Sawyer v. Pioneer Leasing Corp., 244 Ark. 943, 428 S.W.2d 46 (1968).

   Another class of bailor-bailee cases is bottomed on strict liability in tort, Price v. Shell Oil Co., 85 Cal. Rptr. 178, 466 P. 2d 722 (1970); although on occasion, passing reference may be made to the implied warranties of the UCC, Cintrone v. Hertz Truck Leasing & Rental Service, 45 N. J. 434, 212 A. 2d 769 (1965). Delaney v. Towmotor Corp., 339 F. 2d 4 (2d Cir. 1964) invoked the doctrine of strict liability in a case involving what the defendant claimed to be a gratuitous bailment.

   There is a third type of case in which one who leases goods has been held to have impliedly warranted either under common law concepts or by analogy to the UCC the suitability of the chattel leased, W. E. Johnson Equip. Co. v. United Airlines, Inc., 238 So. 2d 98 (Fla. 1970). Simpson v. Powered Products of Mich., Inc., 24 Conn. Super. 409, 192 A. 2d 555[***11] (Ct. C. P. 1963) reached a similar result under the Uniform Sales Act.

   Other cases may give lip service to breach of warranty but usually require proof co-extensive with that required in a negligence action, Price Boiler and Welding Co. v. Gordon, 138 F. Supp. 43 (E.D. Mich. 1956).

   Another case to which we have been referred which applied UCC thinking to the lease of a chattel is Baker v. City of Seattle, 79 Wash. 2d 198, 484 P. 2d 405 (1971) which also involved an injury suffered by the lessee of a golf cart when there was a brake failure.  There the court struck down a disclaimer contained in a lease, analogizing the lease to a sale, by applying UCC § 2-316 and § 2-719.

   A helpful analysis of these divergent views may be found in 2 Frumer and Friedman, Products Liability § 16A [4] [iii], at 3-196.3 (1970).

   Maryland seems never to have adopted what has been the general rule elsewhere: that the bailor of a chattel to be used by the bailee for a particular purpose known [*76] to the bailor impliedly warrants the reasonable suitability of the chattel for the bailee's intended use of it, 8 Am. Jur. 2d Bailments § 144, at 1039 (1963); Annotation, Warranties [***12]  in connection with leasing or hiring of chattels, 68 A.L.R.2d 850, 854 (1959). Perhaps the reluctance of our predecessors to embrace this rule reflects a preoccupation with analogous principles which are well established in our landlord and tenant cases: that generally the lessor of real property does not impliedly warrant that it is fit for habitation, State of Md. ex rel. Pumphrey v. Manor Real Estate & Trust Co., 176 F. 2d 414 (4th Cir. 1949); that a landlord does not impliedly covenant to make repairs, Miller v. Howard, 206 Md. 148, 110 A. 2d 683 (1955), and that ordinarily, a landlord will be answerable in [**611]damages in tort only if his tenant is injured on the demised premises as a result of the landlord's negligent breach of a contractual duty to make repairs, Sacks v. Pleasant, 253 Md. 40, 44, 251 A. 2d 858 (1969).

   Consequently, the liability of the lessor of a chattel, as distinguished from that of a vendor, if it is to be imposed at all in Maryland, must be imposed in a tort action for negligence.  It is not enough for a plaintiff to prove that a lessor failed to make proper inspections; he must prove either that the lessor knew of the defect or that[***13] a reasonable inspection, if made, would have disclosed the defect, Smith v. Kelly, 246 Md. 640, 644, 229 A. 2d 79 (1967); Kaplan v. Stein, 198 Md. 414, 421, 84 A. 2d 81 (1951); State ex rel. Piper v. Henson Flying Service, 191 Md. 240, 248, 60 A. 2d 675, 4 A.L.R.2d 1300 (1948); Milestone System v. Gasior, 160 Md. 131, 136, 152 A. 810 (1931). This may well be the weight of authority, Annotation, Liability of bailor of automotive vehicle or machine for personal injury or death due to defects therein, 46 A.L.R.2d 404, 443 (1956).

   Bona has not appealed from the entry of a directed verdict in favor of Royce and Graefe on the negligence count, with the consequence that the question whether [*77] Royce and Graefe used reasonable care is not directly before us.  There was testimony, however, that the carts were inspected and serviced by employees of Royce on a weekly basis, and that Graefe's employee, as was his custom, drove Bona's cart from the storage shed to a point near the first tee, during the course of which he tested the brake and found it working properly. This evidence, taken with the lack of proof that the service and inspection procedures if properly[***14] done would have detected the defect, or that there was a defect of which Royce or Graefe had knowledge, would seem to have amply justified the trial court's conclusion that there was no evidence that Royce and Graefe had failed to use ordinary care.

   As regards Bona's contention that the court below was in error in not permitting the case to go to the jury on the question of strict liability in tort, we have, on two occasions in the past, declined to espouse the doctrine formulated by 2 Restatement, Torts 2d § 402 A, at 347 (1965), Myers v. Montgomery Ward & Co., 253 Md. 282, 252 A. 2d 855 (1969); Telak v. Maszczenski, 248 Md. 476, 237 A. 2d 434 (1968). Despite the fact that the principle enunciated by § 402 A is gaining acceptance, see Annotation, Products Liability: Strict Liability in Tort, 13 A.L.R.3d 1057 (1967), there is even less reason why it should be adopted in this case.

   Here again the difficulty is that § 402 A is directed at one who sells a product which, because of its defective condition, is unreasonably dangerous to the user, and reaches the user without substantial change in the condition in which it is sold.  Speyer, Inc. v. Humble Oil & [***15]  Refining Co., 275 F. Supp. 861 (W.D. Pa. 1967), aff'd, 403 F. 2d 766 (3d Cir. 1968) held, quite properly we think, that § 402 A is not applicable to a lessor. If Bona, as a lessee of a chattel, has a right of action against Royce or Graefe as lessors, it can only be asserted under 2 Restatement, Torts 2d § 408:
 
"One who leases a chattel as safe for immediate [*78] use is subject to liability to those whom he should expect to use the chattel, or to be endangered by its probable use, for physical harm caused by its use in a manner for which, and by a person for whose use, it is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to disclose its actual condition to those who may be expected to use it." (emphasis supplied)

   In essence, this is the rule of Smith v. Kelly; Kaplan v. Stein and State ex rel. Piper v. Henson Flying Service, all supra.  By positing his appeal on breach of implied warranty and strict liability in tort, Bona would seem to concede that he had not and could not adduce the proof required by § 408.

   [**612] We conclude that the trial court correctly applied the law when it entered[***16] directed verdicts in favor of Graefe and Royce on the implied warranty and strict liability counts.

   Judgments affirmed, costs to be paid by appellants. 

FORD MOTOR CREDIT COMPANY v. THE FARMERS NATIONAL BANK OFANNAPOLIS et al. 
No. 114, September Term, 1971
 
Court of Appeals of Maryland
 
263 Md. 696; 284 A.2d 431; 1971 Md. LEXIS 735

 December  14, 1971, Decided

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

DISPOSITION: Judgments reversed, with costs.

CORE TERMS:  garnishee, nulla bona, Rule G52, confessed, adjudged, Maryland Rule G52, attaching creditor, summary judgment, final decision, larger amount, declaratory, attachment, confess, owe

COUNSEL: Robert J. Thieblot, with whom were Allen, Thieblot & Alexander on the brief, for appellant.

   Submitted on brief by R. Tilghman Brice, III, for appellees.

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

OPINIONBY: HAMMOND

OPINION: [*696] [**432] This appeal involves the right of a garnishee [***2]who has [*697] filed a plea of nulla bona which the attaching creditor does not contest to have the court award him a reasonable counsel fee under Maryland Rule G52 d, reading:

   "If upon a plea of nulla bona, judgment shall be entered for the garnishee, the plaintiff shall be adjudged to pay to the garnishee an attorney's fee to be fixed by the court and the costs of the action."

   In the Circuit Court for Anne Arundel County the appellee, The Farmers National Bank, the garnishee, simultaneously with filing its plea of nulla bona on February 23, 1971, moved for summary judgment against Ford Motor Credit Company, the attaching creditor, for an attorney's fee in an amount to be fixed by the Circuit Court for Anne Arundel County in accordance with Rule G52 d. Ford did not challenge the plea but dismissed its attachment on March 3. After a hearing, Judge Melvin struck Ford's dismissal and entered judgment against Ford in favor of the Bank for a $50.00 attorney's fee.  The essence of the reason for Judge Melvin's actions is found in these words from his opinion:
 
"In the court's opinion the plaintiff's dismissal of its claim against the garnishee could not[***3] serve to cut off the garnishee's right to have the court rule on its Motion for Summary Judgment which motion had been filed in the case before the plaintiff's 'Order of Dismissal.' This is so because in the court's opinion it was the clear intention of the legislature, as well as the superseding rule on the subject, that a garnishee who is put to the trouble and expense of determining whether or not it has attachable assets of the defendant, and who finds no such assets and then employs an attorney to file the correct pleadings in its defense, should not have to bear the expense thereof.  In the court's opinion the rule is a salutary one as it serves to prevent [*698] indiscriminate fishing expeditions on the part of judgment creditors at the expense of garnishees."

   We disagree, finding that the purpose of the statute on which Rule G52 was based did not contemplate an attorney's fee to a garnishee unless there was a judgment for the garnishee that followed a trial to determine the validity of the attaching creditor's challenge to the correctness of the garnishee's return. 

   Rule G52, entitled "Appearance of Garnishee," became effective January 1, 1959 as Rule 1140 M, and[***4] was later recodified in September 1961 to its present format.  (The Rule is quoted below.) n1 It [**433] restated, without apparent change in substance or intended meaning, the provisions of Code (1957), Art. 9, § 16, which was repealed by Ch. 36 of the Laws of 1962.

n1 Rule G52

   a. Pleas

   The Garnishee may file a pleading asserting on behalf of the defendant any defense which the defendant could assert, and also any defense on his own behalf.

   b. Confession of Assets -- Payment into Court

   The garnishee may confess such assets including money, as he has in his hands, and may pay into court the money in his hands to be awarded to the party having a legal right thereto.

   c. Confession of Assets -- Proceedings

   If the plaintiff shall claim a larger amount than the assets confessed, the garnishee shall be allowed the costs of the action and an attorney's fee to be fixed by the court, unless the plaintiff shall recover judgment against the garnishee in excess of the assets confessed.

   d. Plea of Nulla Bona
 
   If upon a plea of nulla bona, judgment shall be entered for the garnishee, the plaintiff shall be adjudged to pay to the garnishee an attorney's fee to be fixed by the court and the costs of the action.  (Amended September 15, 1961.)

[***5]

   Rule 2 provides that the Maryland Rules "shall be interpreted as declaratory of the practice and procedure as it existed prior to their adoption, except insofar as is otherwise expressly provided or they are inconsistent therewith, or as may result from necessary implication."

   It appears that § 16 of Art. 9 went no further in departing from the long established rule in Maryland that a successful litigant is entitled to costs but generally [*699] not to counsel fees than to establish that it is only when a creditor disputes the pleas of the garnishee and puts him to his proof and loses that he must pay the garnishee an attorney's fee.  This is indicated not only by the language of § 16 but also by the wording of Code (1957, 1968 Repl. Vol.), Art. 9, § 13, and a statement in 2 Poe, Pleading and Practice (Tiffany Ed.), § 840 A.  Section 16 provided that the garnishee may confess the assets in his hands "and if the plaintiff will not take judgment of condemnation for the amount so acknowledged, but shall claim a larger sum, then the garnishee shall be allowed the costs of suit, and reasonable counsel fees to be fixed by the court, unless on a final decision the plaintiff[***6] shall recover a larger amount than the garnishee acknowledged * * *." Clearly these provisions mean that if a creditor is not satisfied that the amount confessed is all that the garnishee owes the debtor, he may have that issue of fact tried.  If the creditor loses -- but only if he loses -- the ensuing judgment for the garnishee is to include a reasonable attorney's fee.  If the judgment is for the creditor, the garnishee pays his own lawyer.

   A second clause of § 16 provided: "* * * in all cases where, upon a plea of nulla bona, judgment shall be entered for the garnishee, the plaintiff, in addition to the taxed costs of suit, shall be adjudged to pay to the garnishee reasonable counsel fees to be fixed by the Court."

   We think "judgment" in the second clause must be read to mean judgment following trial or "final decision" in the sense that that phrase is used in the first clause.  There would seem to be no rhyme or reason for having one rule where the garnishee admits owing something and the creditor challenges the amount, and another rule where the garnishee says I owe nothing and the creditor challenges the claim of zero.  The statute means to us that the creditor may query[***7] the garnishee without fear of liability to the garnishee for an attorney's fee, but if he does not agree with the response and puts the garnishee to his proof, he must pay the garnishee a reasonable attorney's fee if the garnishee was right.

   [*700] Section 13 of Art. 9, which had to be read with § 16 when both were part of Art. 9 (and now is to be read with Rule G52) says, in pertinent part:

   "No sheriff or other officer shall levy by way of execution against the garnishee more than the plaintiff's debt and cost, nor more than what the said plaintiff shall make appear to be the value of the property and credits attached in the hands of such garnishee, together with such costs only as the garnishee shall put the plaintiff to by denying himself to be indebted to the defendant, and contesting the same."

   Mr. Poe states in § 840A: "Although the general doctrine is as stated in the preceding section, our law makes special provision for the payment of reasonable fees to the counsel of a garnishee in attachment who shall obtain judgment in his favor on issue joined upon the plea of nulla bona, such reasonable fee to be fixed by the court."

   No provision in Rule G52 expressly[***8] or impliedly keeps it from being declaratory of § 16 of Art. 9 and the Rule is not inconsistent with the statute, and should receive the same interpretation as did the statute.

   Judgments reversed, with costs. 

RICKER v. ABRAMS t/a Oriole Realty Company 
No. 73, September Term, 1971
 
Court of Appeals of Maryland
 
263 Md. 509; 283 A.2d 583; 1971 Md. LEXIS 714

 November  16, 1971, 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:  broker, seller, dollars, directed verdict, purchase price, purchaser, conversation, burden of proving, negotiation, real estate broker, right to compensation, personal property, oral contract, real estate, liquor license, entitlement, negotiated, procuring, waived, installment, settlement, inventory, entertain, customer, goodwill, talking, dual, busy

COUNSEL: Milton Talkin, with whom was Alan J. Bloom on the brief, for appellant. 

   Sheldon E. Friedman for appellee.

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

OPINIONBY: SINGLEY

OPINION: [*510] [**584] This is another in the seemingly unending series of squabbles over brokerage commissions, which differs from the usual case only because personalty was the subject[***3] [*511] of the sale and Code (1957, 1968 Repl. Vol.) Art. 2, § 17, which sets forth the circumstances under which a real estate broker may be entitled to commissions, in the absence of an agreement to the contrary, is of remote applicability, Wood v. Standard Wholesale Phosphate Co., 140 Md. 654, 657, 118 A. 179 (1922).

   In April of 1969, the appellant, Mrs. Helen E. Ricker, a licensed real estate broker, was a co-owner, with her nephew, Richard L. Gary, of a package goods store on Mountain Road in Anne Arundel County, and owned individually the building in which the business was conducted and an adjacent tract of land.

   Charles J. Hopkins, a salesman for Oriole Realty Company, who had recently sold a liquor store for a client, Harold Friedberg, knew that Friedberg was thinking of going back in business.  In hopes of promoting a sale, Hopkins stopped to see Mrs. Ricker, and ascertained that her business was for sale -- for $45,000, according to Mr. Hopkins, or for $50,000, according to Mrs. Ricker.  As Hopkins tells it, Mrs. Ricker wanted $40,000 net, and the additional $5,000 was to take care of his commission. n1

n1 Mr. Hopkins thought that both goodwill and inventory were included in this price.

[***4]

   The following day, Hopkins introduced Friedberg to Mrs. Ricker.  Hopkins did not participate in the negotiations which ensued between the principals; Hopkins testified that this was at Friedberg's suggestion, and that he acquiesced.  On 30 April 1969, a corporation formed by Friedberg agreed to purchase the business for $35,001 subject to certain contingencies, including the transfer of the liquor license, and agreed to lease the premises occupied by the business for $600 per month. n2 The agreement provided that $10,000 of the consideration was to be paid at settlement, the balance of the purchase price to be paid, with interest at 6%, in 36 monthly installments [*512] commencing 1 January 1970. n3 Mrs. Ricker, in turn, agreed to give Friedberg's corporation an option to purchase the business premises for $50,000 and an adjoining 2.13 acre parcel for $40,000.

n2 There was testimony that the allocation of this purchase price: goodwill, $30,000; equipment, $5,000; liquor license, $1.00, was that suggested by Mrs. Ricker's accountant.  The wholesale cost of inventory was to be added to purchase price.

[***5] 

n3 There is at least a suggestion that the reduction in the sale price was a result of the income tax advantage to be derived from recasting the transaction as an installment rather than a cash sale.

   When Oriole Realty discovered, several months later, that settlement had been made, suit was brought against Mrs. Ricker and Friedberg for $5,000, the amount of the commissions allegedly agreed upon.  At the end of the case, Friedberg's motion for a directed verdict in his favor was granted, and the case went to the jury only against Mrs. Ricker.  From a judgment against her for $5,000, entered on the jury's verdict, Mrs. Ricker has appealed.

   If we understand Mrs. Ricker's argument, it is essentially this: she did not employ Oriole Realty as her agent and owes it no commission, and since Friedberg did employ Oriole Realty, his motion for a directed verdict should have been denied.  If she did employ Oriole Realty, her position is that it was also acting for Friedberg, and an agent who acts for both seller and buyer without the knowledge and consent of both may be unable to collect commissions [***6]from [**585] either, relying on Stokes v. Wolf, 137 Md. 393, 412, 112 A. 566 (1921); Blake v. Stump, 73 Md. 160, 172, 20 A. 788 (1890). The rule has been stated more recently and with greater precision in Sellner v. Moore, 251 Md. 391, 399, 247 A. 2d 523 (1968), which recognizes that a broker who breaches a fiduciary duty might forfeit his right to compensation.

   Oriole Realty counters with the contention that it had been employed by Mrs. Ricker; had never acted for Friedberg; but if it had acted for Friedberg, it did so with Mrs. Ricker's knowledge and consent; and further, that since Mrs. Ricker never sought to have the jury instructed as to the consequences of a dual agency, she cannot raise that question now, Rule 885, Rule 554 d. and e.

   [*513] The whole case revolves around disputed issues of fact.  Hopkins freely admitted that he had no listing agreement with Mrs. Ricker, but that after she said she would consider selling the store, the conversation went like this:
 
"* * * I [Hopkins] says, 'what are you asking.' She [Mrs. Ricker] says, 'Well, I don't know.' she says, 'right off-hand what I'd ask for the place.' She says, 'I'll have to think about[***7] it' so as the conversation went on, I says, 'You know, I'd have to get a commission out of it for the office.' She says, 'Well,' she says, 'do you think you can get forty thousand dollars?' So I says, 'Well, I think I could.' She says, 'Well, you will have to ask five thousand dollars more because your commission is in there.' So I told her that I would."
 
Saul Abrams, proprietor of Oriole Realty, and Hopkins categorically denied that Oriole Realty was acting for Friedberg or expected to be paid by him.

   Mrs. Ricker says the commission question first came up when she was talking to Hopkins and Friedberg.  As she tells it,
 
"* * * And during the course of conversation and Mr. Friedberg spoke up and said, 'Well, what would you entertain as a figure.' I said, 'I want Fifty Thousand.' He says, 'Well, if I were to give you Forty Thousand would you entertain that idea.' I said, 'I'm busy.' I said, 'I will think it over.' I said, 'I will not, however, list the property nor will I pay any commission or be involved in any commission on the property.' I said, 'I can sell it myself and don't need any assistance from an outside source.' Mr. Hopkins again brought up the question of[***8] commission.  Mr. Friedberg told him, he says, 'I'll tell you what I'm going to do.' He says, 'and I don't want an answer now.' He says, 'I want you to [*514] think about it.' He says, 'I will give you Thirty Five Thousand for the property and pay full commission to Mr. Hopkins.' Mr. Hopkins says, 'Well, that's all right with me.' He says, 'Well now, let's not take this lady's time up discussing commissions.  She's a busy woman.  She has things to do.  You know I will take care of you.  I have done it in the past and I will do it in any other transaction."

   Friedberg testified that after he had negotiated a purchase price of $35,001, the first draft of a contract of sale, prepared by his lawyer, provided that his corporation would contribute $1,200 toward commissions, and that Mrs. Ricker would hold it harmless for the payment of any balance.  This provision was unacceptable to Mrs. Ricker and was deleted at her insistence. Friedberg's lawyer, who had prepared the contract, said that when Mrs. Ricker wanted the provision removed, Friedberg said, "This is what we're going to do but we've got an agreement between us in this regard and it doesn't have to be in the contract." [***9]

   Friedberg said that on 8 July 1969 he had sent to Mrs. Ricker for signature a check drawn on their escrow account for $1,200 payable to Oriole Realty.  This check was lost and on 31 July 1969 he mailed to Mrs. Ricker his corporation's check for $1,200, drawn, at the suggestion of his counsel, [**586] to the order of Mrs. Ricker and Oriole Realty.  This check was never cashed.

   When asked what had been said about commissions in his conversation with Mrs. Ricker, Friedberg replied:
 
"Well, in talking with Mrs. Ricker and discussing the price we were haggling, I guess, is the word, and, and reduced the price from Forty Thousand dollars to Thirty-five Thousand dollars. I agreed to pay Twelve Hundred dollars commission or whatever, of whatever part the commission would be, the commission would be Twelve Hundred dollars."

   [*515] In ruling on Friedberg's motion for a directed verdict, the court below found that there was no evidence that Friedberg had obligated himself to Oriole Realty in any way to pay it a commission.  Whatever obligation existed was entirely collateral to the principal issue of Mrs. Ricker's obligation, and arose because of a side agreement between[***10] Friedberg and Mrs. Ricker. Since the uncontradicted testimony of Saul Abrams, Hopkins, and Friedberg was that Oriole Realty acted at no time as Friedberg's agent, we agree that Friedberg's motion for a directed verdict was properly granted.  This being so, the dual agency point made by Mrs. Ricker on appeal falls of its own weight.

   In charging the jury, the court ruled that if there had been a contract between Mrs. Ricker and Oriole Realty, it was express and not implied.  On the question whether Mrs. Ricker had employed Oriole Realty, the jury was instructed, in part:
 
"* * * Now, in this case the real matter of dispute is whether the defendant, Mrs. Ricker, did or did not employ the plaintiff regarding the sale of the business of the plaintiff, and that is the issue in the case.  Whether she employed him or whether she did not employ him.  Now, of course, where a broker procures in good faith an acceptable purchaser who enters into a binding and enforceable written contract to buy in terms acceptable to the seller and such contract is accepted by the seller and signed by the seller, which, of course, has been completed and done in this case, the broker shall be deemed to [***11]have earned the customary commission, but that is in such case where a broker is employed.  Now the burden of proving that a broker was employed is upon the broker claiming the commission.  In order to collect a commission he must find that, in this case, the broker was employed by the seller. The burden of proving that is upon the plaintiff, Oriole Realty.  Now the mere [*516] fact that an agent introduces a purchaser of property to the seller or discloses a name or names and they come together and complete the transaction would not automatically entitle a plaintiff or a real estate agent to a commission.  But this may be considered, together with other evidence in the case, in arriving at your verdict as to whether such employment took place or whether it did not.  A broker who has rendered services entitling him to commission cannot be deprived of it merely because a principal completes [the] negotiation of the contract direct with the customer. So a broker is entitled to a commission which he earned by merely producing a customer who ultimately purchased where by introducing the purchaser to the owners, if the parties carried on the negotiation themselves from that particular[***12] point on."

   Later, the court said:
 
"Now in this case, as the court viewed the testimony, the Oriole Realty either had an express verbal agreement contract with Mrs. Ricker or it did not have such an agreement.  If it did then it is entitled to recover.  If it did not, then the verdict should be for the defendant, Mrs. Ricker.  * * * And it's either a case of the verdict for the plaintiff for Five Thousand Dollars or the verdict for the defendant for costs against the plaintiff.  * * *"

   [**587] Mrs. Ricker excepted to the latter portion of the charge, suggesting that the jury should also have been instructed that if it found there had been no agreement as to amount, the jury could allow commissions in the amount customarily charged.  Since Mrs. Ricker did not raise this point in her brief or in argument before us, we must regard it as having been waived, Eggert v. Montgomery County Council, 263 Md. 243, 282 A. 2d 474 [*517] (1971); Wooddy v. Wooddy, 256 Md. 440, 450-51, 261 A. 2d 486 (1970); Mullins v. Thorne, 254 Md. 434, 437, 255 A. 2d 409 (1969). See Rule 831 c. 2.

   As we see it, the first part of the above instructions fairly summarized the [***13]Maryland law.  We have held that an oral contract with a broker for the sale of a tavern business is sufficient, Glaser v. Shostack, 213 Md. 383, 387, 131 A. 2d 724 (1957); that the burden of proving employment and that he was the procuring cause of the sale is on the broker claiming the commission, Steele v. Seth, 211 Md. 323, 328, 127 A. 2d 388 (1956); Kroh v. Rosenberg, 158 Md. 273, 279, 148 A. 244 (1930); that a sale negotiated or concluded by the parties without the broker's participation does not necessarily deprive the broker of his right to commissions, Leimbach v. Nicholson, 219 Md. 440, 446, 149 A. 2d 411 (1959); Buchholz v. Gorsuch, 144 Md. 62, 124 A. 389 (1923); that a broker is entitled to a commission when he produces a purchaser to whom a sale is made by the owner at a lower price, Leimbach v. Nicholson, supra at 447; and even that employment may be implied when the owner permits a broker to show the property, Heslop v. Dieudonne, 209 Md. 201, 206, 120 A. 2d 669 (1956). While it is true that all of these cases except Glaser dealt with a broker's entitlement to commissions in real estate transactions; nevertheless, their teaching is applicable[***14] here.  The principal thrust of Code Art. 2, § 17 was to settle the question when, in the absence of special agreement, a real estate broker is entitled to commissions, Sanders v. Devereux, 231 Md. 224, 231, 189 A. 2d 604 (1963).

   We have held that the criteria by which the entitlement of real estate brokers to commissions is determined may be applied to mortgage brokers who are not covered by Art. 2, § 17, Rhoderick v. Roy Hansen Mort. Co., 260 Md. 129, 135, 271 A. 2d 647 (1970); Freishtat v. Callow, 256 Md. 564, 565, 261 A. 2d 458 (1970); Bregel v. Cooper, 161 Md. 416, 420, 157 A. 719 (1931). We see no reason why the same tests should not be applied in [*518] determining whether a broker is the procuring cause of a sale of personal property.

   That the jury chose to accept Mr. Hopkins' testimony and reject Mrs. Ricker's was the resolution of a disputed issue of fact, clearly within the jury's province, Weinberg v. Desser, 243 Md. 347, 221 A. 2d 66 (1966).

   Judgment affirmed, costs to be paid by appellant. 

BRUNECZ v. DiLEO et al. 
No. 68, September Term, 1971
 
Court of Appeals of Maryland
 
263 Md. 481; 283 A.2d 606; 1971 Md. LEXIS 710

 November  15, 1971, Decided

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

DISPOSITION: Order affirmed, costs on appeal to be paid by appellees.

CORE TERMS:  mechanics', built, materials furnished, corrected, lien law, revisory power, Maryland Rule, sale of lot, estopped, enlarged, three-fourths, block, feet

COUNSEL: James J. Lombardi for appellant.

   Monte M. Simpson, with whom were William A. Mann and Dukes, Troese, Mann & Wilson on the brief, for appellees.

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

OPINIONBY: SINGLEY

OPINION: [*482] [**607] Even though the disaster can be ultimately averted, this case clearly identifies the perils which may be encountered when a mechanics' lien is claimed against the wrong property.  Stephen Brunecz, the general contractor who built a summer residence for Joseph A. and Esther DiLeo (the DiLeos) on Ponder Cove in the first [*483] district of Anne Arundel County brought[***3] suit against the DiLeos to enforce a mechanics' lien which he had asserted against what everyone had assumed to be the improved premises.  After a three day hearing before the Circuit Court for Anne Arundel County, an order was entered on 8 December 1970 determining that $5,860.56 and interest was due and owing by the DiLeos to Brunecz, and that the property should be sold if the DiLeos failed to pay this sum, together with three-fourths of the court costs, within 90 days.  No appeal was taken from this order.

   Apparently as a result of the DiLeos' efforts to borrow funds from which the judgment could be paid, it was discovered to the surprise of Brunecz and the DiLeos, that the mechanics' lien had been asserted against the wrong property. 

   This came about as a result of the fact that the DiLeos owned two contiguous lots, each fronting 75 feet with a depth of 150 feet on Holly Drive at Ponder Cove.  The northernmost of the lots was identified on the plat as lot 5 in block H; the southernmost, as lot 6 in the same block. The house, although described in the application for the building permit, in the Health Department's percolation test, in the notice of intention to assert a mechanics' [***4] lien, in the lien itself and in the bill of complaint to enforce the lien as being or having been built on lot 5, had actually been built on lot 6.  The court's order simply referred to "the property mentioned in these proceeding[s]."

   Brunecz was clearly impaled on the horns of a dilemma.  Since more than 30 days had passed since the entry of the order of 8 December 1970, the order had become enrolled and the revisory power of the court could be exercised only if there were fraud, mistake or irregularity, Maryland Rule 625 a.  However, the type of mistake made here is not the sort of mistake encompassed by the Rule, see Penn Central Co. v. Buffalo Spring & Equipment Co., 260 Md. 576, 582-83, 273 A. [*484] 2d 97 (1971); Wooddy v. Wooddy, 256 Md. 440, 452-55, 261 A. 2d 486 (1970).

   An alternative approach through the thicket of our mechanics' lien law was equally forbidding.  Maryland Code (1957, 1968 Repl. Vol.) Art. 63, § 23 requires that a lien be claimed within six months after the work has been finished or the materials furnished, Kitchen v. Himelfarb, 254 Md. 372, 254 A. 2d 694 (1968). Here, the last work was done in June, 1970, and the six months' period had[***5] accordingly expired in December.

   Faced with the impossibility of either revising the court's order or filing a new lien, Brunecz chose an interstitial approach: he filed what he called a Petition To Amend [**608] Bill of Complaint And Mechanics' Lien.  It is from an order denying the petition that this appeal was taken.

   We propose to affirm the order denying Brunecz the relief which he sought. Although Code, Art. 63, § 32 clearly envisions that because the mechanics' lien law is remedial in nature necessary and proper amendments may be made in the proceedings at any time and from time to time, it imposes an overriding proviso "that the amount of the claim or lien filed shall not in any case be enlarged." Whatever may be the rule elsewhere, see 57 C.J.S. Mechanics' Liens § 161 (1948), it has long been established in Maryland that while an improper statement of ownership may be corrected by amendment, Wilhelm v. Roe, 158 Md. 615, 149 A. 438 (1930); Real Estate & Improvement Co. v. Phillips, 90 Md. 515, 45 A. 174 (1900), an improper description of the property against which the lien is asserted may not be corrected after the time for filing the lien has passed, because [***6]this would amount to an entirely new claim of lien, Gault v. Wittman, 34 Md. 35 (1871).

   Our affirmance of the lower court's order, however, does not mean that Brunecz is left without a remedy.  Code, Art. 63, § 33 provides that "[n]othing in this article shall be construed to affect the right of any person to whom any debt may be due for work done or materials [*485] furnished to maintain any personal action against the owner of the building * * *." See Port City Constr. Co. v. Adams & Douglass, Inc., 260 Md. 585, 273 A. 2d 121 (1971). The judgment entered below in Brunecz' favor against the DiLeos for $5,860.56, together with interest from 7 December 1970 and three-fourths of the costs was a final determination on the merits.  Because the parties and issues will be identical in a subsequent proceeding the doctrine of res judicata would be applicable, Pat Perusse Realty Co. v. Lingo, 249 Md. 33, 238 A. 2d 100 (1968); De Maio v. Lumbermens Mutual Casualty Co., 247 Md. 30, 230 A. 2d 279 (1967), and Brunecz need only sue the DiLeos at law and move for summary judgment.

   Additionally, since the DiLeos throughout the proceeding seem to have conceded that the house[***7] was built on lot 5, and Mr. DiLeo confirmed this in his sworn deposition, it would appear that they are estopped by record or estopped judicially from challenging the validity of the lien insofar as it applies to lot 5, Wilson Bros. v. Cooey, 251 Md. 350, 359, 247 A. 2d 395 (1968); Stone v. Stone, 230 Md. 248, 253, 186 A. 2d 590 (1962); Mobberly v. Mobberly, 60 Md. 376 (1883); 28 Am. Jur. 2d Estoppel and Waiver §§ 68-69 (1966).  We perceive no reason why the trustees named in the order of 7 December 1970 should not proceed with the sale of lot 5 in the manner specified by the order.

   Order affirmed, costs on appeal to be paid by appellees. 

ROGERS et al. t/a Rogers and Brownley v. BURNOPP et ux. 
No. 54, September Term, 1971
 
Court of Appeals of Maryland
 
263 Md. 357; 283 A.2d 367; 1971 Md. LEXIS 697

 November  10, 1971, 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:  right of way, tract, adverse possession, perches, conveyance, permission, fence, clearly erroneous, color of title, adverse use, common boundary, acre tract, injunction, visible, easement, conveyed, distance, acre, feet, necessary to prove, claim of right, prescription, license, adverse possessor, clearly visible, chain of title, continuously, ownership, occupied, openly

COUNSEL: Submitted by Jerome F. Connell, Sr., and E. Milton Frosburg for appellants.

   Submitted by Stanford H. Franklin, Harvey S. Levin and Mandel, Rocklin, Franklin & Drue for appellees.

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

OPINIONBY: SINGLEY

OPINION: [*358] [**368] This controversy arose when John Rogers and his partner, R. Wendell[***3] Brownley (who will be referred to collectively as Rogers) endeavored to prevent Howell Q. Burnopp and his wife, Lola E. Burnopp (the Burnopps) from using a right of way which they claimed to have over the Rogers tract.

   Rogers has owned since 1967 a tract of some 78 acres, which is now being subdivided, on the north side of Dicus Mill Road in Anne Arundel County.  Since 1947, the Burnopps have owned some 58 acres lying east of the Rogers property on Dicus Mill Road.  These two properties share a common boundary at some distance north of Dicus Mill Road, but are otherwise separated by a ten acre lot owned by Elvin F. Pyles and his wife, Bertha E. Pyles which fronts on Dicus Mill Road and lies between them.

   The confusion surrounding the existence of the Burnopps' right of way can be understood from an examination of the histories of these properties.  At about the turn of the century, what is now the Rogers property had been owned by David Wigley until 1899, when he conveyed this tract, lying west of a line described as [*359] South 15 degrees West 118 perches. In 1900, David Wigley acquired the adjoining tract to the east, a part of which is now the Burnopp and Pyles properties. [***4] This property lay east of a line described as North 18 degrees East 118 perches. In 1905, David Wigley conveyed this property to his son Charles.  In 1909, Charles Wigley conveyed a 20 acre tract which is that part of the property now owned by the Burnopps which shares a common boundary with the Rogers property.  In the conveyance of this 20 acre [**369] tract, Charles attempted to convey to the transferees "a right-of-way 10 feet wide leading to and from the Benfield and Odenton County Roads [now Dicus Mill Road] along the West side of the Wigley Place [the North 18 degrees East 118 perches line], * * * with the use thereof in common." The servient property so described is that property now owned by Pyles.  Although at the time of the conveyance the 20 acre tract was completely landlocked, there is no contention here that the Burnopps' predecessors in title acquired a way of necessity.  The creation of the easement in the 1909 conveyance in no way purported to affect the Rogers property.

   The root of the difficulty would appear to lie in the variance in the courses of the common boundary (the 118 perches line) shared by the Rogers property with the properties lying to the[***5] east owned by the Burnopps and Pyles.  The course and distance described in Rogers' chain of title traced back to 1854 was South 15 degrees East 118 perches. A survey made for Rogers in 1967 developed that the "true" bearing of the eastern boundary of his property was South 11 degrees 44' 00" East, and that 1948.68 feet was the "true" distance. The western boundary of the Burnopp and Pyles properties was originally described as North 18 degrees East 118 perches. In 1940, a survey of the property now owned by Pyles developed that this course was North 19 degrees 30' East, which a 1957 survey revised to North 19 degrees 38' 10" East.

   The subdivision of the Rogers property commencing in 1967 brought to light the discrepancy between the easternmost boundary of the Rogers property and westernmost [*360] boundary of the property now owned by Pyles and Burnopp. This was partially resolved by the recording of an agreement between Rogers and Pyles, adopting as their joint boundary a line North 11 degrees 28' 40" East 1949.14 feet, an agreement in which the Burnopps refused to join.

   Although the property line is settled (North 11 degrees 28' 40" East 1949.14 feet), so far as Rogers[***6] and Pyles are concerned, the unresolved problem is that the right of way which the Burnopps claim does not lie east of this line, as it should by the terms of the 1909 conveyance, but in fact lies west of the line on Rogers' property.

   In September, 1969, Rogers commenced an equity proceeding in the Circuit Court for Anne Arundel County, in which he sought an injunction requiring the Burnopps to remove a fence allegedly placed on Rogers' property by them, and an order restraining the Burnopps from encroaching on his property.  When it appeared that a title dispute was at the heart of the matter, see Moore v. McAllister, 216 Md. 497, 141 A. 2d 176 (1958), the case was transferred to the law side of the court and tried by the court without a jury as though it had been an action in ejectment.  From a judgment for the Burnopps for costs, Rogers has appealed.

   We propose to affirm the judgment, being mindful of the mandate of Maryland Rule 886, that "[w]hen an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous[***7] * * *." The law applicable to this case is that of Garrett v. Gray, 258 Md. 363, 375, 266 A. 2d 21 (1970), where Judge Finan, speaking for the Court, adopted the language of Smith v. Shiebeck, 180 Md. 412, 419, 24 A. 2d 795 (1942):
 
"* * * It is a familiar principle that to establish a right of way by prescription it is necessary to prove an adverse, exclusive and uninterrupted [*361]use of the way for twenty years.  The term 'adverse use' means use without license or permission, for an adverse right of an easement cannot grow out of a mere permissive enjoyment.  Where, however, a person has used a right of way for twenty years unexplained, it is fair to presume that the use has been under a claim of right, unless it appears to have been by permission. In other words, the use [**370] of a way whenever one sees fit over the land of another, without asking leave is an adverse use, and the burden is upon the owner of the land to show that the use of the way was by license or contract inconsistent with a claim of right. Cox v. Forrest, 60 Md. 74; Waters v. Snouffer, 88 Md. 391, 41 A. 785; Hansel v. Collins, 180 Md. 209, 23 A. 2d 686."
 
The[***8] elements involved in the acquisition of prescriptive rights have been recently considered in Kenneth T. Bosley v. Grand Lodge of Ancient Free and Accepted Masons, 263 Md. 303, 283 A. 2d 587 (1971).

   Nicholas D. Frankos, the Burnopps' predecessor in title, testified that he had owned the property from 1944 until he sold it to the Burnopps in 1947, and that during this period, he used the road across Rogers' land as the only means of access to the house occupied by the Burnopps, who were his tenants during at least part of this time.

   Curtis Mitchell, who owned the Rogers tract from 1942 to 1967, described the right of way as an "indentation" or "washout," and said that he had placed a fence wherever "it was the easiest," to keep his cattle in the field which adjoined it.  He had seen an automobile which was stuck in the right of way pulled out by horses.  He knew that Burnopp had bulldozed the right of way, "was glad to see it getting leveled off," "was glad to see [himself] getting something done for nothing."

   Bernard Pyles, Mr. Burnopp's neighbor, testified that [*362] he had been familiar with the right of way for at least 25 years, had assumed that it belonged to Mr. [***9] Burnopp, and since 1962 had used it, with Burnopp's permission, to get to his own house.

   Linton B. Pumphrey, who was in the grocery business from 1945 until 1955, testified that he used the right of way several times a month to make deliveries to the Burnopps' house.

   Other witnesses testified that the road had existed in its present location as far back as 1939, and aerial photographs introduced in evidence showed the road delineated by hedgerows in 1957 and in 1963.  Strangely enough, James D. Hicks, who in 1957 surveyed the Pyles property adjoining the Rogers tract on the east, and surveyed the Rogers tract in 1967 and 1968, testified that he was unaware of the existence of the road.

   Mr. Burnopp testified that he had used the road as long as he had occupied his property and that for a considerable period, because the terrain was heavily wooded, he had no other access to the property.  Burnopp also said that he had a neighbor cover and grade the road with a bulldozer.

   Based on its review of the testimony and evidence, the lower court made the following findings of fact:

   (i) That the right of way was located on Rogers' land although it was not mentioned in his chain of title; [***10]

   (ii) That it had existed for many years and for more than 20 years of the period of the Burnopps' ownership;

   (iii) That the location of the right of way had previously never been challenged;

   (iv) That the boundaries of the right of way had been visible for more than 20 years; and

   (v) That the Burnopps had openly, continuously, exclusively and uninterruptedly made an adverse use of the right of way for more than 20 years.
On our review of the record, we cannot say that these findings were clearly erroneous.

   These findings of fact brought the controversy within [*363] the ambit of the rule of Tamburo v. Miller, 203 Md. 329, 336, 100 A. 2d 818 (1953):

   "[T]he better rule is that where the visible boundaries have existed for the period set forth in the Statute of Limitations, title will vest in the adverse possessor where there is evidence of unequivocal [**371] 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."
 
which we quoted with approval in Supreme Builders v. Redmiles,[***11] 250 Md. 446, 455, 243 A. 2d 500 (1968).

   Rogers makes two points in which we find no merit.  First, he says that the lower court should have required that the limits of the right of way be established with certainty because it was claimed without color of title. n1 This is not the rule of the cases on which Rogers relies.  Rather, the proposition, correctly stated, is that adverse possession without color of title extends only to the land actually occupied, Hines v. Symington, 137 Md. 441, 444, 112 A. 814 (1921). This presents no problem in a case such as this, where the road was clearly visible, Blickenstaff v. Bromley, 243 Md. 164, 220 A. 2d 558 (1966); Clayton v. Jensen, 240 Md. 337, 214 A. 2d 154 (1965). Secondly, he says that the court erred in not granting the injunctive relief which he prayed in his bill.  The short answer to this is that while an injunction may issue as ancillary relief in an action at law, Rules BF 40, BF 43, the judgment entered in the Burnopps' favor was completely dispositive of the rights of the parties, and amounted to a final determination that the Burnopps had [*364] acquired by prescription an easement over a part of Rogers' land which [***12]lay between the fences.

n1 Our earlier cases must be examined in the light of the fact that prior to the adoption of Section 2 of Chapter 177 of the Laws of 1852, now Code Art. 75, § 33 it was necessary to prove actual enclosure in order to sustain a claim of adverse user without color of title, Lurman v. Hubner, 75 Md. 268, 270, 23 A. 646 (1892).

   We find no reason to disturb the result reached below.

   Judgment affirmed, costs to be paid by appellants. 

WEST v. WRIGHT et al. etc. 
No. 51, September Term, 1971
 
Court of Appeals of Maryland
 
263 Md. 297; 283 A.2d 401; 1971 Md. LEXIS 693

 November  9, 1971, Decided

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

DISPOSITION: Decree reversed and case remanded for passage of an order dismissing the petition.  Costs to be paid by Evangelene Kennedy Wright.

CORE TERMS:  marriage, name change, divorce, change of name, remarriage, surname, embarrassment, last name, misconduct, abandoned, spend, ties, disgrace, prison, continued use, former wife, remarried, wilfully, divorced, custody, bride, groom, miles

COUNSEL: Abel J. Merrill, with whom were Albert J. Goodman and Goodman, Bloom & Merrill on the brief, for appellant.

   No brief filed on behalf of appellees.

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

OPINIONBY: DIGGES

OPINION:  [**401] [*298] DIGGES, J., delivered the opinion of the Court. 

   This is an appeal from the Circuit Court for Anne Arundel County where Judge Wray, sitting in equity, decreed[***2] that the surname of two young children be changed to the last name of their stepfather.  The [**402] controversy really originated in 1961 when appellant, Jack Curtis West and his former wife, the appellee, Evangelene Kennedy Wright were divorced. At that time Mrs. Wright was given custody of the two children, Todd Curtis West, who is now twelve years old and his younger brother, Phillip Jay West, now eleven.  The father was given visitation rights and required to make monthly support payments, which he has done punctually and without fail.  Both parents remarried and the mother moved to Maryland, about 300 miles from her former husband.  This distance has proved a major impediment to the frequency of visits between father and sons.  Mr. West works six days a week and it is very difficult for him to come to Maryland.  Similarly it is hard for the boys to stay with their fatehr in Pennsylvania, because his home is quite small and he has two children of his subsequent marriage. However, the appellant does manage [*299] to spend at least two to three days a year with Todd and Phillip, some times more, taking them fishing or swimming, and being with them several hours each of [***3]those days.  This he does when the children visit their grandparents (both his and Mrs. Wright's parents).  The father does not often call or write his sons, explaining that until now they were very young and could not "carry on a conversation over the telephone or writing"; but he does maintain contact by sending them presents on their birthdays and at Christmas.  He has also designated the boys as beneficiaries of life insurance policies and bonds and Mr. West wants this property inherited under his surname.

   Mrs. Wright, the mother, says that since she remarried, the children have been embarrassed that their last name differs from hers.  She claims that they have been teased by classmates and have even been involved in fights because of this.

   The trial judge concluded that it would best serve the interests of the boys to allow the name change. He based his decision solely on the sparsity of the communication between the father and his sons, as well as "the cruelty of children to other children who are 'different.'" Mr. West contends on appeal that Judge Wray wasd in error in concluding that these circumstances justified a change of name. We agree and reverse the trial judge's[***4] decree.

   This is a case of first impression in Maryland, but the rule in other courts has been to look at what is in the best interests of the child before determining if a name change is warranted.  Degerberg v. McCormick, 41 Del.Ch. 46, 187 A.2d 436 (1963); Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758, 53 A.L.R.2d 908 (1956); Kay v. Kay, 51 Ohio Op. 434, 65 Ohio L.Abs. 472, 112 N.E.2d 562 (1953); Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952). However, courts are also most reluctant to allow such a change except under extrme circumstances.  As the New York court said in Application of Yesssner, 61 Misc.2d 174, 304 N.Y.S.2d 901, 903 [*300] (1969) ". . . to deprive the son of his father's surname is a serious and far-reaching action . . . the father has a natural right to have his son bear his name and . . . the court should not endeavor to interfere with the usual custom of succession of paternal surname nor foster any unnatural barrier between father and son." Application of Keach, 51 Misc.2d 1097, 274 N.Y.S.2d 938 (1966), Lazow v. Lazow, 147 So.2d 12 (Fla. 1962); 53 A.L.R.2d 914; cf. Watson v. Dockett, 229 Md. 63, 181 A.2d 461 (1962). [***5]Nevertheless, the father's right to perpetuate his name in his son is certainly not absolute; it can be forfeited by conduct inimical to the child. Application of Yessner, supra. "The sins of the father should not be visited upon the children", n1 Application of [**403] Fein, 51 Misc.2d 1012, 274 N.Y.S.2d 547 (1966). 

n1 This quote is apparently an offspring of Exodus 20:5 where it is said: "For I the Lord Thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me."

   Courts of our sister states have usually made inquiries along the following lines in deciding cases involving a name change of minor children:

   1.  Is there any proof of misconduct by the natural father which might make the continued use of the name by his children shameful or disgraceful?

   2.  Has the father wilfully abandoned or surrendered the natural ties between himself and his children?

   Application of Keach, supra at 940; Degerberg [***6]  v. McCormick, supra at 439; Sobel v. Sobel, 46 N.J.Super. 284, 134 A.2d 598 (1957). In addition some courts have also taken into account other factors such as the age of the children involved and in one case even went into an elaborate discussion of whether a name per se was embarrassing.  Worms v. Worms, 252 C.A.2d 130, 60 Cal.Rptr. 88 (1967).

   We agree with the utilization of these general considerations [*301] and will analyze the facts of the present case accordingly.  The most prevalent basis for allowing a change of name is where there is proof of serious misconduct by the father which adversely affects the best interests of his children.  In Application of Fein, supra, the New York court allowed a name change because the father was serving a life sentence in prison for second degree murder.  The court said at page 554: "The arrest, trial, sentence and apepals aroused wide notoriety, of the sensational type, because of the unusual features of the case.  It has attracted the most distasteful kind of publicity. This naturally has brought shame, disgrace and distress to his family." In Application of Yessner, supra, the New York court came toi the same result [***7]when the father was convicted of manslaughter foir choking the child's maternal grandfather to death.  In W. v. H., 103 N.J.Super. 24, 246 A.2d 501 (1968) the New Jersey court allowed a name change in a case where the father was in prison for having sexual intercourse with his eleven yer old daughter.  There are no hard and fast definitions as to the tyep of misconduct required; however, the offense must be of such great magnitude that the continued use of the name by the children would result in significant harm or disgrace to them.  In the present case we are not faced with this issue since it is not even suggested that Mr. West has been guilty of any misconduct.

   The other factors to be considered all related to whether a father has wilfully abandoned his children and severed natural ties with them.  Applying this criterion here, we again do not find appellant wanting.  He has always maintained his support payments promptly an dwhile it is true that he does not see his children frequently, the court must consider this in terms of Mr. West's capabilities.  He works six days a week, lives in a small house and because his former wife moved away, is separated from his sons by[***8] 300 miles. The fact that under these circumstances he arrange to spend but a few days with his [*302] children each year does not show a lack of diligence on his part; rather it is the sad but true result of the practical limitations with which he is faced.  It would be most unjust to penalize him for his small abode or the duration of his work week.  In fact, the time he spends with his children shows a desire on his part, despite many obstacles, to maintain ties with them.  It is clear he has not abandoned them.  There is no evidence to indicate that Mr. West has done or failed to do anything justifying the allowance of a change of name by the court.

   [**404] The appellee argues that since the last name of the children is different than hers, it is a source of constant embarrassment to them all.  Our careful review of the record in this case discloses the mention fo some minor skirmishes with playmates, not uncommon to children of that age, and some slight clerical mixups with doctors' records.  However, these minimal instancesof embarrassment would certainly not merit so drastic an action as a name change. Indeed, in a country in which nearly 25% of all marriages in[***9] a given year involve previously married people, it is not an unusual occurrrence to have children and parents living together with different last names. n2 Of course the courts in arriving at a decision must apply a subjective test, not unlike that used in adoption proceedings.  Beltran v. Heim, 248 Md. 397, 236 A.2d 723 (1968). But in this case any embarrassment is [*303] clearly outweighed by the desirability of maintaining some bond between a father and hi soffspring; a bond which incidentally may be quite tenuous in a situation where the parents are divorced and the mother has custody of the children.  Mark v. Kahn, supra, 333 Mass. 517, 521, 131 N.E.2d 758, 762. To allow the change of name would cause more erosion in an already precarious relationship.  

n2 According to the U.S. Dept's of Health, Education and Welfare, Public Health Service, Monthly Vital Statistics Report, Vol. 20, No. 4 Supp. July 22, 1971, out of a total of 1,525,000 marriages in 1960, 333,000 involved remarriage of the bride and 317,000 involved remarriage of the groom. In 1969, out of 1,600,547 marriages reported by 40 states, 378,349 involved remarriage of the bride and 380,930 remarriage of the groom. During the period 1961-1969, which includes the year of the divorce in the present case, 5,847,000 children were involved in divorces and annulments.

   It is also interesting to note that not only are marriages increasing, but divorces are increasing at a much higher percentage than is the population itself.

   In 1960 there were: 1,525,000 marriages 393,000 divorces

   In 1969 there were: 2,145,438 marriages 639,000 divorces

   In 1970 provisional figures indicate 2,179,000 marriages 715,000 divorces

[***10] 

McGINNIS et al. v. ROGERS et al.; URCIOLO et al. v. ROGERS 
No. 465, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 710; 279 A.2d 459; 1971 Md. LEXIS 967

 June  30, 1971, Decided

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

DISPOSITION: Decree affirmed, costs to be paid by Raphael G. Urciolo, Joseph J. Urciolo, Arthur J. McGinnis and Charles Dudley.

CORE TERMS:  chancellor, decree, deed, mortgage, purchaser, specific performance, cross-claim, purchase money mortgage, settlement, diligence, della, equity suit, counterclaim, tax sale, silence, rezoning, Maryland Rule, adverse possession, final settlement, recorded, expire, subject property, summary judgment, real estate, mailed, confidence, memorandum, seller, zoning, broker

COUNSEL: Charles C. W. Atwater, with whom were David A. Carney and J. Edward Martin, Jr., on the brief, for Arthur J. McGinnis and Charles Dudley, part of appellants and cross-appellees.  Richard T. Brice, IV, for Raphael G. Urciolo, part of appellants.  No brief filed on behalf of Joseph Urciolo, other appellant.

   C. Edward Hartman, II, with whom was Stanley E. Hartman on the brief, for John J. Rogers, part of appellees.  No brief filed on behalf of other appellees. 

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

OPINIONBY: FINAN

OPINION: [*712] [**461] Upon the first argument of this case before this Court, the appellants were Arthur J. McGinnis and Charles Dudley, who, as complainants below and[***5] as the named contract purchaser and assignee had filed a bill for specific performance of a contract for the sale of land against John J. Rogers and Helen A. Rogers, his wife, and Thomas E. Chance. Also joined as defendants were Helen L. Clarke, Joseph Urciolo, John V. Arban, Pascal della Badia and Florence E. Urciolo whose relationship to the subject property will become apparent later in this opinion.  Service was not obtained on the Rogerses.  In [*713] that action, the court below having granted the motion of Chance for summary judgment, dismissed the bill of complaint.  We reversed and remanded, being of the opinion that there existed a genuine dispute as to material facts which rendered summary judgment inappropriate.  We directed that further proceedings be taken in the nature of additional testimony and additional finding of facts.  McGinnis v. Chance, 247 Md. 393, 231 A. 2d 63 (1967).

   In order to provide an understanding of the roles played by the various parties, we shall endeavor to consolidate the facts of McGinnis v. Chance, supra , with those of the record of this case in its present posture on appeal.  In the court below, Judge E. Mackall Childs, in a well[***6] reasoned opinion, performed an able task of unravelling an intricate web of evidence, for which we are duly grateful.

   Mr. John L. Rogers, who at the most recent trial was 69 years of age, is a man whose formal education terminated after the sixth grade.  In 1936, he and his wife, now deceased, purchased from Anne Arundel County a 48 acre tract (the subject property) which the County had acquired at a tax sale in 1932.  However, it was not until 1940 that a deed was executed by the county treasurer.  Rogers has receipted tax bills for the years 1941 through 1964.  There is no question that he, although not living on the property, exercised many acts of dominion over it.  On April 4, 1963, McGinnis, for the consideration of $200, obtained from the Rogerses a thirty day option to purchase the tract for $50,000.  On May 3, 1963, McGinnis gave notice of his intent to exercise this option and shortly thereafter, with the Rogerses' permission, removed timber from the property which McGinnis sold for $1700; however, he did not settle as required and attempted to sell his option to one Hurd.  Hurd obtained information concerning the questionable validity of the tax sale held in 1932 and[***7] returned the contract to McGinnis.  When McGinnis mentioned the title problem to Mr. [*714] Rogers, Rogers said "Well, look, if you want to get the title cleared up you go ahead.  I don't want to spend any money." McGinnis did not pay any of the $1700 which he received from the timber to the Rogerses, and in a sense this may have set the flavor of his dealing with them.

   Thereafter, McGinnis employed William Dixon, Esq., President of Monumental Title Company, a real estate attorney and developer, and a member of the Maryland Bar, who prepared a new contract for his client, McGinnis.  That contract, entered into on September 23, 1963, between Rogers and McGinnis provided for a deposit of $200 (which was not paid) and a purchase price of $50,000 to be paid by a $10,000 down payment and a $40,000 four per cent purchase money mortgage back to Rogers.  With regard to the defective title, the contract provided in pertinent part:
 
"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 * * *."

   * * *
 
"Buyer will immediately[***8] proceed with due diligence to clear title to said property but in no event will the time of this contract exceed eighteen (18) months."

    Approximately one week later (October 1, 1963), McGinnis assigned his contract to [**462] Charles Dudley for a named consideration of $10,000, of which $6,000 was paid.  Dixon then represented Dudley in all matters relating to the contract.  Dixon caused a search of the title to be made by Garrett Larrimore, Esq., a member of the Maryland Bar, and also had a survey made by Mr. Edward Hall.  This was in the early part of 1964.  Also, about this time Hall notified Dixon that he had learned that Mr. Thomas E. Chance, a person known to deal in tax delinquent properties in Anne Arundel County, had evinced considerable interest in the property and was endeavoring [*715] to obtain quitclaim deeds from the heirs of William H. Queen, the individual who had been vested with title to the property prior to the tax sale in 1932.  Dixon telephoned Chance and informed him of the existing contract between the Rogerses and McGinnis and of the assignment to Dudley, and advanced the opinion that the Rogerses' title was valid based on adverse possession. [***9] Dixon, however, did not communicate this development to the Rogerses, who were unaware of Chance's activities.  Dixon was hopeful that the defect in the tax sale would be remedied by the passage of Chapter 182 of the Laws of Maryland of 1964, which provided that all tax sales prior to 1944 in Anne Arundel County could not be subject to further attack after June 1, 1966.  However, this policy of watchful waiting exposed McGinnis, Dudley and Dixon to the risk that the McGinnis contract would expire on March 23, 1965, as the contract expressly provided for final settlement within eighteen months from its date of September 23, 1963, and if no extensions were granted by the Rogerses, the McGinnis contract would terminate.  The record reveals that the McGinnis-Dudley-Dixon combination did little or nothing to prepare for the final settlement date, and it was not until late in 1964 (the evidence not being clear as to the exact date) that Dixon sought the advice of John P. O'Ferrall, Esq., a title specialist in Baltimore. O'Ferrall observed that the Rogerses might well sustain a title based on adverse possession, having been in possession and control of the property under a deed from the[***10] county treasurer from 1940 to the date of his report; however, he also cited the curative effect of Chapter 182 of the Laws of 1964. Dixon, however, states that he was apprehensive about filing legal action lest the case be lost, thereby exposing Dudley and McGinnis to a possible suit for damages by the Rogerses.

   Meanwhile, on June 23, 1964, Thomas Chance had obtained deeds from the Queen heirs in favor of his nominee, Helen L. Clarke, and on July 21, 1964, she, as agent for Chance, filed a bill of complaint (Equity No. 16,484) [*716] in the Circuit Court for Anne Arundel County asserting the invalidity of the 1932 tax sale and alleging that she was vested with title and should be entitled to the property upon payment of past due taxes.  On October 19, 1964, the Circuit Court for Anne Arundel County entered a decree setting aside the tax sale. However, prior to the determination of that case there was yet another chapter being played out which affected the course which the instant case was to follow. 

   The equity suit filed by Helen Clarke against the Rogerses caught that couple completely unaware.  Mr. Rogers states that it was the first time in his life that he had ever been[***11] sued.  He did not know that anyone had designs on the title to his property and to compound his troubles his wife at this time was seriously ill with cancer.  In desperation, he turned to his long-standing friend and spiritual advisor, Father Hugh O'Neil.  Father O'Neil urged that Rogers retain Winson G. Gott, Jr., Esq., a member of the Maryland Bar from Anne Arundel County, to try to delay proceedings until Raphael Urciolo, Esq. (Urciolo) a member of the District of Columbia Bar, returned from Europe. Father O'Neil had a transcendent opinion of Urciolo, whom he had taught in college, and upon the latter's return to this country Father O'Neil immediately introduced him to Mr. Rogers.  Rogers, with complete faith, placed [**463] his affairs totally in the hands of Urciolo.

   We digress for a moment to point out that when this case was first heard by this Court we had misgivings as to whether the Clarke v. Rogers equity suit was of a true adversary nature.  The evidence produced on remand clears this up completely and as Judge Childs unequivocally states: "[He] has no hesitancy in pronouncing it to be so.  There was no evidence whatsoever that Chance's nominee, Helen L. Clarke, [***12] nor Chance, nor C. Osborne Duvall, Esq., who was representing Clarke, had ever known Rogers before the suit was filed."

   At Uricolo's behest, the Rogerses entered into an agreement with Clarke to the effect that, regardless of the outcome [*717] of the equity case, the property would be titled in the name of Clarke and the Rogerses -- one-half interest in each -- and that this agreement was reached "either prior to or simultaneously with" the taking of testimony in that case.  Urciolo also explains that he advised settlement because he thought it might be difficult for the Rogerses to rest their title on adverse possession and that he had misgivings about the validity of the tax deed. At the close of the Clarke v. Rogers equity case, upon Urciolo's advice, the Rogerses executed an agreement dated September 17, 1964, whereby both they and Helen L. Clarke agreed to convey the subject tract to Chance and Joseph Urciolo (brother of Raphael) as "joint tenants to be held by them for the benefit of the parties to this instrument (the Rogerses and Clarke) as hereinafter set forth."

   It must be noted that this agreement between the Rogerses and Clarke recognized the existence of the[***13] McGinnis contract and the testimony revealed that Urciolo and Chance were both of a mind that Clarke and the Rogerses were to be bound by whatever decision McGinnis would make as to a settlement on or before March 23, 1965.  However, they wanted nothing to be filed in the land records referring to this outstanding contract commitment pending the expiration of the McGinnis option, which they hoped would expire and which eventually did expire. It is obvious that Urciolo viewed the McGinnis contract with ambivalence, expressly recognizing its existence in the Rogers-Clarke agreement, yet testifying that he considered that the contract could be easily "set aside" because neither McGinnis, Dudley nor Dixon had done anything affirmatively to clear the title, as required under the contract.

   When the case was previously heard by this Court we noted that Dixon made numerous attempts between early January and March 1, 1965, to contact Raphael Urciolo, attorney for the Rogerses.  Urciolo admitted that he received many messages that Mr. Dixon had called, but returned [*718] none of the calls. He also acknowledged receipt of a telephone call on March 2, 1965, wherein Dixon outlined to him[***14] the questions raised in the O'Ferrall memorandum and the recommendation which it contained advising that the best way to perfect the Rogerses' title was to wait until June 1, 1966.  Urciolo replied to Dixon: "Well, send me a copy of the memorandum and I'll be in touch with you." Dixon, in response to this request of Urciolo, sent him a copy of the memorandum on March 3, 1965, and in the accompanying letter stated: "We would like to go through with this contract but would like to postpone it until after June 1, 1966." Dixon, not having heard further from Urciolo, made efforts to contact both him and Mr. Rogers.  He did contact Rogers, who referred him to Urciolo, and having heard nothing further, he apparently sought to relieve his frustration by recording on April 4, 1965, the contract between McGinnis and the Rogerses dated September 23, 1963.  Further efforts to contact Urciolo having failed, Dixon wrote on April 22, 1965 (almost a month after the expiration of the contract) informing him that the contract had been recorded and that he was interpreting Urciolo's failure to contact him as an acquiescence in an extension of the settlement date of the agreement.

   [**464] The evidence[***15] also reveals that after some fifteen months of silence, McGinnis telephoned Rogers in December of 1964, or January of 1965, the testimony as to the exact date being unclear, and informed him that he was desirous of discussing a third extension of the final settlement date. Rogers referred him to his attorney, Urciolo.  Again, about 7 or 10 days prior to the expiration date of the contract, McGinnis contacted Rogers requesting Urciolo's telephone number and address.

   On March 24, 1965 (one day after the expiration date of the McGinnis contract) Rogers and Helen Clarke executed their deed conveying title to Chance and Joseph Urciolo as joint tenants.  This deed was recorded the following day. On May, 26, 1965, Chance and Joseph Urciolo [*719] sold the subject property to a combine composed of John B. Arban, Pascal della Badia, and Florence Urciolo, wife of Raphael, for $94,600. n1 A purchase money mortgage was executed in favor of Chance and Joseph Urciolo in the amount of $70,000 and $24,600 was paid in cash.  Seventy one hundred dollars ($7100) of the cash down payment was paid to Thomas Chance (Chance and Rogers compromised and dismissed their claims against each other[***16] during the trial below) and the balance has apparently been retained by one or more of the Urciolos.

n1 In a companion appeal, Arban v. Rogers, 262 Md. 738, 279 A.2d 457 (1971), this group is referred to as a partnership.

   On June 11, 1965, Dixon learned from Hall, the surveyor, that some deeds had been recorded affecting the Rogerses' title.  Dixon ordered a run-down of the title which disclosed not only the deed from the Rogerses and Helen Clarke to Chance and Joseph Urciolo on March 24, 1965, and the subsequent conveyance by Urciolo and Chance to John B. Arban, et al, on May 26, 1965, but also the 1964 equity proceeding of Clarke v. Rogers, of which McGinnis, Dudley and Dixon had been unaware (but of which they most assuredly would have been aware had they caused a run-down to have been made of the title in preparation for final settlement in March of 1965).  Whereupon, Dixon contacted Chance on June 15, 1965, and informed him that, in his opinion, the Clarke v. Rogers equity proceeding was a nullity. [***17] Thereafter, McGinnis and Dudley filed their bill of complaint on July 2, 1965, wherein they requested specific performance of their contract with the Rogerses and asked that the court declare null and void the Clarke v. Rogers equity proceeding and the deeds subsequently executed affecting the property. n2

 n2 Adding a bizarre touch to this case is the fact that the Rogerses left for Arizona immediately after the execution of the deed to Urciolo and Chance on March 24, 1965.  Mrs. Rogers died in Arizona and Mr. Rogers knew nothing of subsequent events in this matter until his return in the summer of 1967 when he was served with summons in this case.  (When we heard this case on the first appeal we did not have the benefit of his testimony.) Although the property had been sold and settlement made some two years previous by Chance and Joseph Urciolo, Rogers knew nothing of the settlement.

   [*720] After our opinion in McGinnis v. Chance, supra, the following efforts of the litigants to improve their[***18] positions transpired in the lower court:

   Chance attempted to have William Dixon brought in as a party in interest, but this was denied by the court.  Service was obtained on John J. Rogers, and he filed an answer.  Rogers then filed a cross bill of complaint against McGinnis, Dudley, Joseph J. Urciolo, Raphael Urciolo (who had not been named in the original bill of complaint), Arban, della Badia, and Florence Urciolo.  Raphael Urciolo cross-claimed against Chance.  Chance in turn counterclaimed against Rogers and cross-claimed against Raphael Urciolo.  Arban, della Badia, and Florence Urciolo cross-claimed against Rogers, Chance, and Joseph J. Urciolo, requesting a rescission of their deed and purchase money mortgage and the return of their $24,000 down payment.  Rogers also counterclaimed against McGinnis [**465]and Dudley for failure to act with due diligence to clear the title to his property in keeping with their contractual obligations.  As already noted, Chance and Rogers compromised and dismissed their claims against each other by an agreement dated August 7, 1969, and Chance agreed to assign his interests in the purchase money mortgage to Rogers.  Also, a decree pro [***19]confesso was entered in the claim of Rogers against Raphael and Joseph Urciolo.

   It should also be noted that upon remand before Judge Childs it became known that none of the payments of principal or interest called for under the purchase money mortgage from Arban et al, had been made during the six years that they had held title to the property.  The chancellor properly held the mortgage to be in default.  It was further demonstrated that Rogers had never received one penny of the proceeds from the sale of his property.  After a plenary hearing on this matter, in [*721] which the chancellor had the customary opportunity to view and assess the demeanor and credibility of witnesses during three days of testimony, and on the facts as we have outlined them, the court entered a decree in which it dismissed McGinnis' and Dudley's bill of complaint requesting specific performance of their contract for the purchase of the property from the Rogerses; upheld the validity of the deed executed by Mr. and Mrs. Rogers and Helen Clarke to Chance and Joseph Urciolo dated March 24, 1965; affirmed the validity of the deed of May 26, 1965, from Chance and Joseph Urciolo to Arban et al; sustained[***20] the validity of the purchase money mortgage dated May 26, 1965, from Arban et al, to Chance and Joseph Urciolo and further decreed:

    "II. [Covered above.]

   * * *

   "D. That the full principal and interest indebtedness set forth in the aforesaid mortgage are due and payable as prescribed in the mortgage without offset for any reason, except payment to Thomas Chance for J. Urciolo.

   "E. That pursuant to the agreement of August 7, 1969, between John Rogers and Thomas Chance filed in these proceedings, Thomas Chance forthwith execute an assignment of the mortgage described in paragraph C above to John J. Rogers.

   "F. That Joseph Urciolo forthwith execute an assignment of the mortgage described in paragraph C above to John J. Rogers and deliver the mortgage and assignment to counsel for Rogers.

   "G. That Joseph Urciolo forthwith pay over to John Rogers' counsel, for John Rogers' benefit, any and all sums received on account of principal or interest paid on the mortgage indebtedness, together with a complete [*722] account on oath of said Urciolo as to the dates upon which the various sums, if any, were paid against the principal and/or interest called for under the terms of [***21]said mortgage.

   "H. That Raphael Urciolo and Joseph Urciolo account and forthwith pay over to John Rogers' counsel, for John Rogers' benefit, the sum of $16,151.62 together with interest from June 12, 1965.

   "I. That the option contract of April 4, 1963 and the contract of sale of September 23, 1963, both between John J. Rogers, et ux and Arthur J. McGinnis, the later contract recorded among the Land Records of Anne Arundel County in Liber LNP 1847, folio 228, be and the same are hereby declared null and void.

   "III. That the counterclaim of Thomas E. Chance against John J. Rogers be and the same is hereby dismissed with prejudice.

   "IV. That the cross-claim of Thomas E. Chance against Raphael G. Urciolo, [**466]et al, be and the same is hereby dismissed with prejudice.

   "V. That the cross-claim of Raphael Urciolo against Thomas E. Chance be and the same is hereby dismissed with prejudice.

   "VI. That the counterclaim of Raphael Urciolo against Dudley and McGinnis be and the same is hereby dismissed with prejudice.

   "VII. That the cross-claim of Arban, della Badia, and Florence E. Urciolo be and the same is hereby dismissed with prejudice.  [These parties did not appeal.] [***22]

   "VIII. That the counterclaim of Rogers against McGinnis and Dudley be and the same is hereby dismissed with prejudice.  [Rogers did not take a cross-appeal.]

   [*723] "IX. That costs of the proceedings be divided among plaintiffs, Arban, della Badia, F. Urciolo, J. Urciolo and R. Urciolo."

    McGinnis and Dudley appealed from those portions of the decree which dismissed their bill of complaint for specific performance and upheld the validity of the Clarke and Rogerses' deed to Chance and Joseph Urciolo (March 24, 1965), the deed of Chance and Joseph Urciolo to Arban et al (May 26, 1965) and the purchase money mortgage.

   Raphael Urciolo filed an appeal from paragraphs V and VI of the decree only, being respectively a dismissal of his cross-claim against Chance and the dismissal of his counterclaim against Dudley and McGinnis.  No appeal was filed by him with respect to the decree in personam against him, apparently on the premise that the court did not have jurisdiction over him to render such a decree. Joseph Urciolo also contested jurisdiction of the court on the premise that he had never been served with a copy of the original bill of complaint. The court eventually decided[***23] that it had jurisdiction over Raphael Urciolo and leave was granted to Rogers to effect proper re-service of his cross bill on Joseph, which was accomplished.  Although Joseph Urciolo appealed, he did not file a brief.

   The final chapter in this case begat a new cause of action, Equity No. 19, 637 in the Circuit Court for Anne Arundel County, which was a mortgage foreclosure proceeding brought by John J. Rogers, assignee, against Arban, della Badia and Florence E. Urciolo, appearing as mortgagors in the mortgage covering the subject property and which proceeding sired a companion appeal to the case at bar.  Arban v. Rogers, 262 Md. 738, 279 A. 2d 457 (1971). We mention that litigation at this juncture because its affirmance or reversal could have an effect on the type of relief decreed in the instant case.  Certainly its affirmance would render specific performance of the McGinnis contract impossible and would [*724] only allow them an alternate relief by way of damages, were we in this case to find that the lower court erred and that they were entitled to relief.  Since we have previously stated that we affirm the decree of the lower court in all respects, we see no need[***24] for further reference at this time to the mortgage foreclosure sale. n3

n3 However, an explanation is in order as to why these complicated proceedings need to have been rendered more involved by the mortgage foreclosure.  The chancellor properly held that the mortgage was in default.  On November 14, 1969, Rogers, as the beneficial owner of the mortgage, filed foreclosure proceedings as titled above.  The chancellor held that because of the absence of a supersedeas bond, the foreclosure action should not be forestalled and that the sale should be completed.

   Fortunately, the law applicable to this case is not as complicated as the facts.  When this matter was first heard by Judge Sachse in the court below it was on a motion by Chance for summary judgment and the court made its determination on the basis of the pleadings, depositions and affidavits. [**467]On appeal, we expressed the opinion that material facts were in dispute which placed the matter beyond the pale of summary judgment. We pronounced concern[***25] over the question of whether the Clarke v. Rogers equity suit (No. 16,484 Equity in the Circuit Court for Anne Arundel County) was a true adversary proceeding, particularly regarding the complicity, if any, of Mr. John Rogers, who had not been served as a party in the original action.  We viewed the facts as permitting the inference that Chance and Urciolo might have acted in concert to frustrate the purpose of the contract between McGinnis and the Rogerses.  Further, the evidence was subject to the interpretation, without explanation, that Raphael Urciolo might have misled Dixon into thinking he was going to receive an extension of the March 23, 1965, settlement date.  The victimization of the Rogerses was not at all apparent.  As Judge Childs stated, after hearing the testimony of the brothers Urciolo, he could "fully understand the malaise that the Court of Appeals had upon reviewing the record." After remand, the record now presents us with a plethora of facts which [*725] stills any misgivings we may have harbored regarding the chancellor's refusal in the first proceeding to grant specific performance of the McGinnis-Rogers contract.  We shall discuss the rights of the[***26] parties in the order in which they were affected by the chancellor's decree.

   I

   DISMISSAL OF THE BILL OF MCGINNIS AND DUDLEY FOR SPECIFIC PERFORMANCE

   The record on remand has strengthened the original finding of Judge Sachse, as has been pointed out with clarity by Judge Childs, that McGinnis and Dudley slept on their rights.  The contract of September 23, 1963, expressly states, "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 months." We find an appropriate analogy in the case of Development Sales Company v. McWilliams, 254 Md. 673, 255 A. 2d 1 (1969), in which there was a contract for the purchase of land calling for zoning to be obtained by the purchaser within eighteen (18) months, with extension at the consent of the owners, should it prove necessary.  Otherwise, the contract was to terminate.  In that case, although the purchasers diligently pursued rezoning, they were unable to obtain it within the time limit stipulated in the contract.  The owners would not grant an extension and this Court held:
 
"* * * [W]e are of the opinion that the contract terminated[***27] according to its own terms and provisions when the zoning classification sought for had not been obtained within eighteen months from the date of the contract, and no consent to extend the contract or to further pursue the zoning reclassification was forthcoming from the McWilliamses.  The contract was predicated on a contingency which was not fulfilled.  Thereafter, the McWilliamses, as Sellers, were free to negotiate with whomsoever they may have [*726] chosen to negotiate a new contract." 254 Md. 678-679.
 
The law is well settled that when the optionee obligates himself to perform a required condition within an agreed time he must perform the condition within the time agreed upon at the risk of losing his option.  Schlee v. Bryant, 247 Md. 689, 697, 234 A. 2d 457 (1967).

   Another case in which the condition precedent for the execution of the option to purchase was the rezoning of the tract, is Michael v. Towers, 253 Md. 114, 251 A. 2d 878 (1969). The language used in Towers regarding the contingency of rezoning was quite similar to that found in the case at bar regarding the clearing of the title.  In Towers the contract provided:
  
"Purchaser shall[***28] apply for rezoning immediately and shall prosecute the application [**468] for rezoning with due diligence and as expeditiously as possible, with all expense therefor being charged to the purchaser without obligation to the Seller." (Emphasis supplied.)
 
The Court speaking through Judge Singley said:
 
"Here the contract provided that the purchaser would proceed with diligence and expedition.  He had more than two years in which to act between the signing of the contract and the filing of the suit and nearly a year from the filing of the suit to the time when the case was heard.  The conclusion that the zoning problem could have been resolved in either of these periods is as nearly irrefutable as can be imagined, and proof of Michael's lack of activity established a prima facie case for Mrs. Brown and the Towers." 253 Md. 119.
 
Also as to what constitutes reasonable diligence, see Atholwood Development Company v. Houston, 179 Md. 441, 446, 19 A. 2d 706 (1941); Stern v. Schapiro, 138 Md. 615, 626, 627, [*727] 114 A. 587 (1921); and cf. Jones v. Saah, 261 Md. 340, 344, 275 A. 2d 165 (1971). The chancellor was aware of the thrust of these[***29] authorities when he observed:
 
"* * * Dixon, knowing the date on which the option was to expire, had not taken the barest minimum of preparation in the event of an adamant refusal to extend the option.  He had not undertaken to bring the title to date to protect his client from possible newer developments in the title nor had he prior to filing suit actually made anyone an unequivocal offer to settle or tendered performance.  * * * If he were convinced as he now says he is of the validity of Rogers' title through adverse possession, there would be no reason why his client could not have taken title within the option period and then await the final protection of the provisions of Chapter 182 of the Acts of 1964."

   To this we would add that Dixon did practically nothing about clearing the title for the first ten months after the Rogerses had given the option and he testified that in June of 1964 he was told that the deeds of the Queen heirs had been executed and were about to be recorded. He elected to take a passive course of action (which undoubtedly entailed less effort and expense) and in fact exhibited little concern until the approach of the termination date of the option[***30] in the early part of 1965.  Such lackadaisical conduct is scarcely compatible with the obligation to "immediately proceed with due diligence."

   The appellants McGinnis and Dudley also contend that Rogers and his attorney Urciolo were guilty of conduct which should estop them from refusing to extend the termination date of the contract.  Specifically, they refer to the failure to inform McGinnis and Dudley of the Clarke v. Rogers equity suit (the existence of which they argue made it impossible for McGinnis to clear the title) and [*728]also Urciolo's actions near the end of the option period when he failed to respond to Dixon's desperate pleas for an extension of final settlement and a response by Urciolo in some manner to O'Ferrall's memorandum on the status of the title.

   First of all, if we hold, as we do, that McGinnis and Dudley breached their obligation under the contract to "immediately proceed with due diligence" to clear the title, they could not avail themselves of the doctrine of estoppel, for those who would invoke the equitable relief of specific performance cannot themselves be guilty of a breach of the contract.  However, assuming arguendo, that they did not[***31] breach the contract, we agree with the chancellor that there are no facts or circumstances that give rise to an estoppel on the part of Rogers or Urciolo.

   The evidence shows that Dixon, McGinnis' attorney, knew about the Chance deeds and challenge to Rogerses' title before any [**469] of the other parties.  Furthermore, the testimony is undisputed that Chance and the Rogerses in agreeing to the disposition of their respective claims (when they settled the Clarke v. Rogers equity suit), agreed they would abide the decision of McGinnis as to his exercising or not exercising his option.  Additionally, on the facts of the present record, it is obvious that for Dixon to have assumed by Urciolo's silence that he was extending the option period is nothing more than the most fanciful type of wishful thinking.

   It is true that this Court has at times held that silence may be the basis for creating estoppel where one maintains his silence while observing another person act to that person's detriment, as well as to the detriment of the party who remains silent.  Bean v. Steuart, 244 Md. 459, 468, 224 A. 2d 295 (1966). However, there was nothing in Urciolo's silence which would have[***32] justified Dixon's not endeavoring to continue his efforts to clear the title to the land up to the last minute that the option was in effect, or to exercise the option on the theory that the Rogerses had a good and sufficient title based on adverse possession; nor do we recognize any obligation on the [*729] part of either Urciolo or Rogers to inform McGinnis, Dudley or Dixon of their agreement with Chance.  This agreement was a legitimate business end which Rogers had a right to pursue to protect his own interests.

   As previously noted, the record in the instant case, primarily through the testimony of Mr. Rogers reveals an abundance of evidence to show that the Clarke v. Rogers equity suit was a bona fide adversary proceeding.  Once that is acknowledged the sinister gloss which Urciolo's actions might otherwise mirror, as was the case in the original proceeding, is dissipated.  We are also of a mind that the determination that the Clarke v. Rogers equity suit was a true adversary proceeding, which Clarke and the Rogerses had a right to compromise, quells any contention that Chance or the Urciolos were guilty of tortious interference with the McGinnis contract with the[***33] Rogerses.  We would further note that this issue of tortious interference with their contract with the Rogerses was not raised below by McGinnis or Dudley and we do not think that it is properly before us on this appeal.  (Maryland Rule 885.) However, were it before us on the basis of the evidence in the record, we would be compelled to hold that such a claim was without merit.

   II

   THE CLAIM OF JOHN ROGERS AGAINST RAPHAEL G. URCIOLO AND JOSEPH J. URCIOLO

   The following language of Judge Childs in the opinion of the lower court aptly describes the machinations of Raphael Urciolo with regard to his representation of Mr. Rogers:
 
"The shepherd [in this instance Father O'Neill] having in good faith entrusted his sheep unto the hands of Raphael G. Urciolo, the latter carried out his trust by attempting to fleece Rogers.  As illustrative of this point the brothers Urciolo unauthorizedly and illegally charged Rogers $12,425 for his part of the overall transaction [*730] and still retain the entire balance of proceeds from the sale. n4
 
And, as the trier of facts, the chancellor further stated:

   "Mr. Raphael Urciolo admitted in open court on the third day of testimony [***34]that he, being unlicensed in Maryland, was not entitled to attorney's fees.  Nor is his real estate firm licensed in Maryland, yet the Urciolos have received some $29,000 in commissions on two Rogers' sales.  The court has yet to receive a satisfactory explanation as to why a [**470] straw man named in a deed is entitled to claim a 'trustee's commission' nor of the basis for the commission charge.  It seems clear to the court that this charge was a mere sham and guise whereby an unsuspecting and trusting old man was further deprived of the product of his life's labors.  Added to this circumstance was the fact that Raphael Urciolo at the sale of the property was representing both buyers and sellers without divulging his dual role to either.  Even were this not so, and even had the Urciolos been licensed brokers and attorneys in Maryland, transactions arising out of an attorney-client relationship when challenged are prima facie void, and the attorney has the burden of proving understanding on the part of his client and fairness and absence of undue influence and deception.  Lopez v. Lopez, 250 Md. 491."

n4 The $12,425 the chancellor refers to consisted of a broker's commission of $9,460, a trustee's commission of $2,365 and an attorney's fee in the Clarke v. Rogers equity case in the amount of $600.

[***35]

   The chancellor further found that both Raphael and Joseph Urciolo had attempted (and up to the date of the decree had done so successfully) to deprive Rogers of his portion of the $24,000 down payment on the property made to Joseph Urciolo in May of 1965, when the property [*731] was conveyed to the Arban-Urciolo combine.  Rogers emphatically testified that he did not employ the Urciolo Realty Company as a broker nor appoint Joseph Urciolo as a trustee.  The trust agreement of September 17, 1964, whereby Clarke and the Rogerses conveyed in trust their interest in the property to Chance and Joseph Urciolo, did not provide for any trustees' commissions.

   The testimony of Joseph Urciolo, who is also a practicing attorney in the District of Columbia, would be disarming if one were to believe him to be as naive as his characterization of his role in this transaction would indicate. He states:
 
Answer: "He's [meaning Raphael] an older brother.  He was handling the thing from the beginning and I didn't know anything about it.  I didn't know what was going on * * *."
 Question: "Mr. Urciolo you have no personal interest --"
Answer: "None."
Question: "In any funds?"
Answer: [***36] "None, whatsoever."
Question: "Mr. Urciolo, what is the Urciolo Realty Company?"
Answer: "It's a real trade name for a duly licensed brokership in Washington, D.C. and it is the trade name of Raphael G. Urciolo."

   Against such a factual background, the chancellor correctly held that, in addition to his interest in the purchase money mortgage, Rogers should have received from the $24,000 deposit, the sum of $7,191.62 (being equal to the amount received by Chance) and the improperly charged real estate commissions of $9,460 (Chance, at the time of the decree, having assigned all of his interest to Rogers), less the $500 fee which Winson Gott, Esq. received.  Raphael Urciolo, as settlement attorney, should have paid Rogers $16,151.62 or held this amount [*732] in trust for him.  To have held otherwise would have been to overlook the age-old principle applicable to fiduciary relationships that, unless there is a full disclosure by the agent, trustee, or attorney of his activity and interest in the transaction to the party he represents and the obtaining of the consent of the party represented, the party serving in the fiduciary capacity cannot receive any profit or emolument[***37] from the transaction.  This is true even when the transaction benefits the principal or client, which does not readily appear to be the case in this transaction. Maryland Credit v. Hagerty, 216 Md. 83, 90-92, 139 A. 2d 230 (1958). In Gerson v. Gerson, 179 Md. 171, 177, 20 A. 2d 567 (1941), the Court, quoting from Chase v. Grey, 134 Md. 619, 623, said:
 
"'* * * Courts of equity have carefully refrained from defining the particular instances of fiduciary relations in such a manner that other and perhaps [**471]new cases might be excluded.  It is settled by an overwhelming weight of authority that the principle extends to every possible case in which a confidential relation exists as a fact in which there is a confidence reposed on one side, and the resulting superiority and influence on the other.  The relation and duties involved in it need not be legal; it may be moral, social, domestic, or merely personal.' * * * 'No part of the jurisdiction of the court is more useful than that which it exercises in watching and controlling transactions between persons standing in the relation of confidence to each other * * *.  The jurisdiction is founded on the principle[***38] of correcting abuses of confidence, and I shall have no hesitation in saying it ought to be applied whatever be the nature of the confidence reposed, or the relation of the parties between whom it has subsisted.'"
 
Certainly the factual pattern of the case at bar may be cast in such a mold, insofar as the relationship between Raphael Urciolo and Rogers is concerned.

   [*733] III

   THE URCIOLOS' CHALLENGE TO JURISDICTION

   After three days of trial in the court below and the awarding of a monetary judgment in favor of John Rogers against Raphael Urciolo and Joseph Urciolo jointly, together with costs, Joseph Urciolo for the first time alleged that he had not been served with the original bill of complaint by McGinnis and Dudley, nor had he ever filed an answer to that suit, and on this premise challenged the court's jurisdiction over him.  Raphael Urciolo maintained that he had not been properly served with the cross bill of John Rogers and challenged jurisdiction and joined his brother in a motion to set aside the decree filed September 29, 1969.

   We regret that we must prolong this opinion by discussing the merits of the Urciolos' contention of lack of jurisdiction, which[***39] the chancellor characterized as frivolous, yet, we are of the belief that the issues raised should be answered to still the possibility of continued litigation.  From the record it appears that the first activity in this case after John Rogers filed his answer to the bill is a motion titled, "Motion of Defendants Raphael G. Uricolo and Florence E. Urciolo to Advance or Continue Trial" and contained the following language:
 
"Come now the defendants, Raphael G. Urciolo, pro se * * *"
"The defendants, Raphael G. Urciolo * * *"
"Among the objects of said trip are a series of lectures to be given by defendant, Raphael G. Urciolo.  * * *"

   * * *
 
"The defendant, Raphael G. Urciolo, certified that he has made known to all other counsel of the matters * * *." (Emphasis supplied.)

   At this stage of the litigation, Raphael Urciolo had not been named as a party defendant and there was no obligation [*734] for him to appear in any capacity.  The motion he filed to fix a trial date was not relevant to any issue of jurisdiction.  This motion was filed because he obviously considered himself a real party in interest and intended to participate in the trial[***40] on its merits.  There is no question but that by this motion he was seeking the assistance of the legal process of the court in his favor.  We think this was a pleading within the meaning of Maryland Rule 124 a 1, and by filing this pleading he made a general appearance for himself and the others whom he purported to represent, and thus accepted the jurisdiction of the court. Eastham v. Young, 250 Md. 516, 522, 243 A. 2d 559 (1968). Cf. Metropolitan Auto Sales v. Koneski, 252 Md. 145, 152, 249 A. 2d 141 (1969).

   Subsequently, when Rogers filed his cross-claim, a copy was mailed by registered [**472] mail to Raphael Urciolo's office and its delivery was acknowledged by an employee named Cates.  It appears from Raphael's testimony that Cates promptly delivered the cross-bill to him upon his return to his office.  We think such service meets substantial compliance with Maryland Rule 306 c 2 (b).  There is no question but that Raphael Urciolo comes within the purview of the provisions of Maryland Code (1969 Repl. Vol.), Art. 75, § 96, which gives the courts of this State personal jurisdiction over nonresidents when such a person "acts directly [by way of] * * * (1) Transacting[***41] any business in this State; [or] * * * (5) Having an interest in using, or possessing real estate in this State; * * *."

   Although actual delivery of the cross-claim sent by registered mail was made to his employee Cates, yet, under oath Raphael admitted prompt receipt of the letter from Cates.  Therefore, there can be no question but that he had actual and timely receipt of the copy of Rogers' cross-claim and was fully apprised of its nature.  Cf. Heller & Company v. Kocher, 262 Md. 471, 278 A. 2d 301 (1971).

   Additionally, Raphael Urciolo participated fully in these proceedings for thirteen months, filing pleadings, answers, counterclaims, testifying, examining, and the [*735] like.  At no time did he ever ask that the order of court authorizing service be amended, or in any other way object to or appeal from the manner of service until October 28, 1969, the next to last day before the appeal time was to expire. His challenge to jurisdiction was in the form of a motion to set aside decree not enrolled.  The court denied the motion because Raphael Urciolo, prior to filing a motion, had already appealed to this Court from that portion of the decree which denied his cross-claim[***42] against Chance and his counterclaim against McGinnis and Dudley, and the appeal was still pending.  He did not appeal from the decree in personam obtained against him by Rogers.

   The chancellor held that he was without jurisdiction to strike a judgment after an appeal had been entered, even though in this case the appeal was from only a portion of the decree. We are of the opinion that the action of the chancellor was proper.  Urciolo, by filing his cross-claim against Chance and his counterclaim against McGinnis and Dudley, if he had not by his previous actions accepted the jurisdiction of the court (and we think that he had), certainly by these pleadings, did so.  The chancellor lacked jurisdiction to set aside a decree not enrolled when the issue raised by the motion, i. e., lack of jurisdiction of the court, could have a bearing on the portion of the decree appealed.  The appeal had not been withdrawn at the date of the hearing on the motion and we believe the following principle set forth in Tiller v. Elfenbein, 205 Md. 14, 21, 106 A. 2d 42 (1954) to be apposite:

   "We think it is a sound policy that allows the trial court, despite an appeal, to retain its control over[***43] the judgment for thirty days after its entry, and for such reasonable time thereafter as may serve the court's convenience in disposing of a motion seasonably made, as contemplated by the Rules.  On the other hand the exercise of the court's power to act on the motion [*736] should not be stayed by the entry of an appeal, so as to work a postponement of the hearing of the motion, any more than the filing of the motion should postpone the time for, or hearing of, the appeal, for this would be capable of abuse, as suggested.  We hold that, unless the appeal is dismissed when the motion comes on for hearing, the appellant must elect between his motion and his appeal.  If the appeal is dismissed before the hearing, as in the instant case, the motion stands for hearing as though no appeal has been entered."
 
Furthermore, in Giles v. DiRobbio, 186 Md. 258, 261, 46 A. 2d 611 (1946), it was held that the trial court properly dismissed [**473] a petition to strike a judgment on the ground of newly discovered evidence, after an appeal from the judgment had been entered.  The Court stated that "the lower court could not consider the petition after an appeal was taken to this[***44] Court." The appeal was still pending when the motion was heard.  Corey v. Carback, 201 Md. 389, 405, 94 A. 2d 629 (1953), and Dietrich v. Anderson, 185 Md. 103, 111, 43 A. 2d 186 (1945).

   With regard to Joseph Urciolo's challenge to the jurisdiction of the court on the grounds that he had not been served with a copy of the bill of complaint, we first note that Deputy United States Marshal Michael Colosanto filed an affidavit of service stating that he had served Joseph Urciolo on September 2, 1965, with a copy of the bill of complaint and the order of publication in this case.  Thereafter on September 14, 1965, there was purportedly filed an answer signed by Joseph Urciolo.  Although this answer cannot be found in the files of the clerk of the court, nonetheless copies were mailed by Joseph Urciolo to the counsel for the various parties in the case and one of such copies was filed in the proceeding as an exhibit.  The chancellor characterized Urciolo's attempted explanation as to why he had mailed this answer to counsel of record, if in fact he had not been served with the bill [*737] of complaint as "legal jabberwocky." Counsel for John Rogers has in his possession a[***45] copy of that answer admittedly signed by Joseph Urciolo.  This is significant because had Urciolo not been properly served it is highly unlikely that he would have signed an answer.  Joseph Urciolo some four and one-half years later (March 13, 1970) attached to his motion to revise the decree, an affidavit by Colosanto, to the effect that while acting as Deputy United States Marshal he had mistakenly served Raphael Urciolo instead of his brother, Joseph Urciolo in September, 1965.

   On the basis of these facts we do not think the chancellor erred in his holding that:

   "It is elementary law that a proper official return of service is presumed to be true and accurate until the presumption is overcome by proof, and the mere denial of personal service by him who was summoned will not avail to defeat the sworn return of the official process server.  Weinrich v. Walker, 236 Md. 290; Harvey v. Slacum, 181, 206.  This member of the court finds it inconceivable that a practicing attorney would prepare an answer to a suit against him, sign it, certify to its being mailed, and mail it if he had not been personally served with the document giving rise to such answer."

   Finally, with[***46] regard to Joseph Urciolo's contention that he had never been served with a copy of John Rogers' cross-bill, Rogers was granted leave by the chancellor (Feb. 13, 1970) to effect proper service upon him pursuant to Maryland Code (1969 Repl. Vol.) Art. 75, § 78, and this was accomplished.

   Decree affirmed, costs to be paid by Raphael G. Urciolo, Joseph J. Urciolo, Arthur J. McGinnis and Charles Dudley. 

ARBAN et al. v. ROGERS 
No. 466, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 738; 279 A.2d 457; 1971 Md. LEXIS 968

 June  30, 1971, Decided

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

DISPOSITION: Order affirmed, appellants to pay costs.

CORE TERMS:  mortgage, foreclosure sale, subject property, partnership, cloud, irregularity, conscience, default, purchaser, quarterly payments, option contract, down payment, giving rise, settlement, chancellor, excepted, foreclosure proceedings, marketability, mortgagor, shock, appraised

COUNSEL: Richard T. Brice, IV, for appellants.

   C. Edward Hartman, II, for appellee.

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

OPINIONBY: FINAN

OPINION: [*739] [**457] This case is a sequel to McGinnis v. Rogers, 262 Md. 710, 279 A. 2d 459 (1971) and no useful purpose would be served by attempting to repeat the labyrinthine facts comprising the background for the present litigation.  [**458] It suffices to say that prior to the dispute giving rise to the appeal in McGinnis, title to the subject property, which had been owned by appellee Rogers since about 1936, was vested in a partnership composed of Florence Urciolo, John L. Arban, and Pascal della Badia (appellants).  They had paid $94,600 for the property in 1965, $24,000 of which had been a down payment, and $70,600 of which was represented by a purchase money mortgage to Joseph Urciolo (Florence's brother-in-law) and Thomas Chance, mortgagees.  The mortgage provided for $1500 quarterly payments of principal and quarterly payments of interest at 4% per annum.

   As a result of the litigation giving rise[***3] to the companion appeal, appellee Rogers was awarded sole ownership of the mortgage previously held by Joseph Urciolo and Thomas Chance and received a money judgment for the greater portion of the $24,000 down payment. We affirmed McGinnis v. Rogers, supra. None of the payments of either principal or interest due by the terms of the mortgage had ever been made, and appellee Rogers therefore filed the foreclosure proceedings which form the backdrop for this appeal.

   Florence Urciolo filed exceptions to the foreclosure sale, which were denied, and the sale was ratified by the Circuit Court for Anne Arundel County (Sachse, J.).  Thereafter, the partnership of which Florence Urciolo was one member filed this appeal. n1

n1 The partnership, as a named party in the foreclosure proceedings and a party with a substantial interest in the property involved, is a proper party to maintain the appeal, even though Florence Urciolo sought the injunction and filed exceptions individually.  Maryland Code (1968 Repl. Vol.), Art. 5, § 6 (1970 Cum. Supp.).

[***4]

   [*740] The appellants contend that the lower court erred in allowing the foreclosure sale to take place while the appeal in McGinnis v. Rogers was pending, because that appeal created a cloud on the title to be conveyed and a sale under such circumstances could not and did not bring about a fair price for the property. n2

n2 In McGinnis v. Rogers, the contract purchaser (McGinnis) and his assignee (Dudley) sought to obtain specific performance of an option with Rogers to purchase the subject property.

   In our view, if the price received at the mortgage foreclosure sale was fair, then the question of whether or not the pending appeal created a cloud on title is irrelevant to the rights of the mortgagors in default, and is an objection which would more properly be raised by the purchasers at the foreclosure sale. n3

n3 It is noted that Towser Developers, Inc., the purchaser at the foreclosure sale, filed a petition to delay settlement pending the outcome of the appeal in McGinnis v. Rogers, supra. McGinnis and Dudley were made parties to the proceedings, and joined in the request for delay in settlement. Their petitions were denied (Melvin, J.) on the grounds that Towser Developers had knowledge of the appeal at the time it purchased the property, and also that it had not excepted prior to the ratification of the sale.  There has been no appeal taken from that order.

[***5]

   Inadequacy of price, in and of itself, will not justify a refusal to ratify a mortgage sale, unless the price is so inadequate as to "shock the conscience of the court" or raise a presumption of fraud or irregularity. Silver Spring Development Corp. v. Guertler, 257 Md. 291, 297, 262 A. 2d 749 (1970); Habib v. Mitchell, 257 Md. 29, 35, 261, A. 2d 744 (1970); Waring v. Guy, 248 Md. 544, 549, 237 A. 2d 763 (1968).

   The evidence indicated that the appellants purchased the property for $94,600 in May, 1965.  It was sold at auction in July, 1970, for $122,000.  Kurt Berlin, Esq., a member of the Maryland Bar, testified that he had bid about $115,000 for the property, but had stopped at that point because counsel for Mr. Rogers would not offer "insurable title," although he had offered "good" title. Mr. Berlin further testified that he would pay more than $122,000 on resale, but not more than $150,000 or $160,000 [*741] because [**459] of financial limitations of the group which he was representing.

   Mr. Maurice C. Ogle, a real estate appraiser and consultant for some 22 years at the time of the hearing, testified that he had appraised the property in March, [***6] 1970, at the request of the Public Works Department of Anne Arundel County.  He had also appraised sixteen other pieces of property in the vicinity for Anne Arundel County.  Mr. Ogle placed a value of $2,800 per acre on the subject property in March, 1970, and testified that nothing had occurred between that time and time of the hearing to cause him to change his mind concerning its worth.  If one accepts Mr. Ogle's valuation (and his was the only expert testimony on the subject), the fair market value of the subject property was $134,400, or $12,400 more than was realized from the foreclosure sale. There is nothing about that figure which shocks the conscience of this Court, or offers to it any color of fraud or irregularity.

   Finally, we think it important to note that the chancellor in the companion case of McGinnis v. Rogers, supra, found that the appellants took title to the subject property with constructive, if not actual, knowledge of the existence of the McGinnis-Dudley option contract when they purchased the property in 1965. The chancellor observed that the title insurance policy issued to the appellants excepted matters pertaining to the McGinnis option contract. [***7] It is certainly quite apparent from the record that the appellants' attorney at that time, Raphael Urciolo, had full knowledge of the existence of a contract and had discussed it with McGinnis' attorney.  See Shartzer v. The Mountain Lake Park Association, 86 Md. 335, 340, 37 A. 786 (1897). With such knowledge on their part and on the part of their attorney, it would be anomalous to allow them to blatantly default in their mortgage obligation and later, while still in default, assert that a foreclosure sale is prohibited because the cloud, of which they had prior knowledge, affects [*742] the marketability of the title, even if the McGinnis-Dudley appeal had created a legitimate cloud on title, which, of course, is a question we have not been required to decide in this opinion.

   Order affirmed, appellants to pay costs. 

VROOM v. ARUNDEL GAS COMPANY 
No. 476, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 657; 278 A.2d 563; 1971 Md. LEXIS 962

 June  29, 1971, Decided

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

DISPOSITION: Judgment reversed, with costs, and case remanded for a new trial.

CORE TERMS:  water, mouth, caustic soda, chemical, pump, lip, plug, skin, water softener, alkalinity, membranes, burning, tested, mucous, tongue, inside, sodium hydroxide, feed pump, hot line, probable, causal, conditioning, appearance, electrical, constant, caustic, lye, circumstances surrounding, absence of evidence, causal connection

COUNSEL: Andrew E. Greenwald, with whom were Karl G. Feissner, William L. Kaplan, Thomas P. Smith, Fred R. Joseph, Walter E. Laake, Jr. and Feissner, Kaplan & Smith on the brief, for appellant.

   C. Edward Hartman, II, with whom was Stanley E. Hartman on the brief, for appellee.

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

OPINIONBY: HAMMOND

OPINION: [*658] [**563] This case well could be a nightmare for dentists and other advocates of regular oral hygiene.  The unfortunate plaintiff-appellant, Miss Vroom, in the process of cleaning her teeth before retiring, rinsed her mouth with water from the spigot in her bathroom and immediately experienced a burning and stinging of her lips, [***3] tongue and mouth. Prior to this occurrence she had had no problems with the skin of her mouth or her tongue or mucous membranes, but after the acute phase subsided she since has experienced excessive dryness continually inside her lips and mouth and a loss of taste on the tip of her tongue.

   Arundel Gas Company, Inc., the defendant-appellee, earlier had installed water conditioning equipment in Miss Vroom's well.  Under the contract Arundel alone was to service the mechanical parts of the conditioner and [*659] at regular intervals place in the equipment the proper chemicals in correct combinations and amounts to be pumped into the water supply so as to, among other things, maintain a proper balance between acidity and alkalinity. Some eighteen months after the original installation, the water came into the house green-blue [**564] in color and waxy and greasy.  Arundel made a number of service calls but the water remained unsatisfactory and Miss Vroom, who was director of nurses for the Prince George's County Health Department, brought home from her place of employment water in glass jars to use for making coffee, cooking and drinking.  It was about ten-thirty in the evening[***4] of March 6, 1969 that Miss Vroom rinsed her mouth with the well water that had passed through Arundel's conditioner, and was burned.  She sued Arundel for breach of warranty and negligence.  Judge Melvin sent the warranty count to the jury, which found for Arundel, and directed a verdict for Arundel on the negligence count.  The appeal is from the judgment that followed the direction of the verdict.

   Arundel supports Judge Melvin's ruling by saying there was no evidence of any wrongful act or omission by it that was a proximate cause of Miss Vroom's injury and, if there was, the court properly struck her testimony as to the present condition of her mouth and lips because it was unsupported by competent medical evidence.  Miss Vroom says not so, the diametrical opposite is what is presented to the Court by the record.  We think Miss Vroom has the better of the argument. 

   In considering whether the verdict rightly was directed against Miss Vroom, we must consider the evidence in a light most favorable to her, resolving all conflicts in her favor and assuming the validity of all inferences which naturally and legitimately may be drawn from such evidence.  A verdict for a defendant must[***5] not be granted if there is any legally relevant and competent evidence from which a rational mind can infer a fact at issue.  Yommer v. McKenzie, 255 Md. 220, 228.

   [*660] Miss Vroom proved the rinsing of her mouth, the burning and stinging of her lips, mouth and tongue that followed, and the dryness and loss of taste that have persisted since.  She asked a Mr. Karpen, a co-worker, to look at her face and mouth the morning after the incident.  He testified that at that time he observed the area around her mouth "to be quite red and slightly swollen." The same day a doctor, Donald Childs, took a "professional look" at her mouth and face and said:

   "The inside of her mouth, particularly inside the lower lip, showed redness and vesiculation which is a small blister-like formation.  There was also papillary formation, meaning a small bumpy appearance of the * * * appearance was that of small cold sores that you are probably familiar with.  It was that type of lesion, that type of irritation that was lining the lower lip. In addition to the inside of the mouth, her lips and face around the mouth had a definite appearance of swelling and some redness or erythema * * * was rather [***6]scaley and dry at that time."

   To prove that Arundel had been negligent and that its negligence was the proximate cause of her injuries, Miss Vroom produced, besides herself, two witnesses.  One was her co-worker, Mr. Karpen, who holds a Bachelor's degree in chemical engineering and a Master's degree in sanitary engineering.  He ran a PH test for Miss Vroom on the water that affected her mouth. PH is a measurement scale of the acidity and alkalinity of water, running from zero to fourteen. Seven is neutral, and the higher the scale tests out from seven to fourteen, the higher the alkalinity of the water. The increase is not simply arithmetical but rises geometrically by powers of ten, so that a water solution with a PH reading of 11 would have 10,000 times the alkaline presence of a solution with a PH reading of 7.1.  Mr. Karpen's test equipment [*661] could read no higher than 10.2 and this is what the sample of water Miss Vroom gave him made it read. This, he said, showed the water was caustic and that the effect would be like that resulting from "putting your hand into a lye solution * * * it would have the same effect, burning effect." Judge Melvin later struck the[***7] quoted testimony but we think the witness was qualified to give it [**565] and that it was error to strike it.  Mr. Karpen later testified that caustic soda "[d]epending on the concentration * * * could have a very high PH." This too was later stricken, again erroneously.  Both opinions were cumulative since Mr. Karpen testified without objection that the water he tested had the "slippery feeling" water has "when you dissolve household lye [caustic soda] in it."

   The second witness, Mr. Hurney, was also a chemical engineer who for thirty years had been in the business of the sale and installation of water-treating equipment and the analysis of water. He said he had in those years been "intimately connected with operations of waste water plants, and potable water plants and water treating equipment * * *." He was offered as "an expert on water chemistry" and no objection was made to his qualifications.  He had twice examined Miss Vroom's well and the water treatment equipment that Arundel had installed and agreed to service for her.  His tests showed that the water as it came from the well had a PH of four.  When he tested the remains of the sample Mr. Karpen had tested on[***8] an "electrical PH meter which is accurate plus or minus to the second decimal point on the PH reading," he got a PH reading of 11.2.  When asked what caused the PH to be so high, he replied that further analysis of the water showed there were 410 millimeters [milliliters] of sodium hydroxide in the water sample and that another name for sodium hydroxide is caustic soda. The 11.2 reading showed the tested water sample was "quite alkaline.  High caustic." He said there would have been no change in alkalinity caused by [*662] caustic soda between March 6, 1969 (the night of the burning of the mouth) and the time of his examination.

   He testified further that the kind of chemicals put in the equipment would have an effect "as to whether there would be for instance any injury to the skin or mucous membranes." His opinion was that above a PH of 8.31 "there would be caustic soda ionized and dissolved in the solution to cause an effect on the skin." He explained that the pump that feeds the conditioning chemicals into the water that goes into the house is supposed to work intermittently, that is, to start and stop with the starting and stopping of the well pump so that a proper proportion[***9] of chemicals will be sent into a certain amount of water, and that in addition to the chemical pump the system includes an automatic water softener which is controlled by a small electric clock which requires constant electric current.  The electrical plug for the water softener and that for the pumps were in the same "small outlet box" -- and had no differentiating marks. He testified further:
 
"The plug or cable-plug that was on the chemical feed pump was exactly the same as the one that would be on the water softener, so that if an operator, or person who services this equipment, wasn't careful he could plug the water softener into the elecric connection on the pressure switch and he could * * * connect the chemical feeder onto the constant hot line. * * *

   "That would be the only way, after I checked out all of this equipment, that this chemical feed pump could pump a tremendous amount of caustic soda or sodium hydroxide into this mixing tank to get the PH that high."

   The service reports of Arundel showed its man had serviced the Vroom equipment on the sixth and seventh of March 1969.  The report for the sixth showed a PH [*663] reading of 5.5, that the service[***10] man "increased feed from 4.5 to 7.5" and put in "3/4 gallon of SS 20" (liquid caustic soda).  The report for the seventh indicates that on that day the service man found the chemical pump "plugged in on hot line." He unplugged it, drained out tank and lines, refilled them and turned the feed pump back from 7.5 to 4.5.

   Mr. Hurney's opinion as an expert was that although there could be other possible causes, the only reason the PH of the water Miss Vroom used to rinse her mouth [**566] was excessively high on the evening of March 6 was because the electrical plugs were in the wrong outlets on March the sixth and excess caustic soda had been pumped into that water that day.  He testified that in order to service the conditioning equipment as the reports of Arundel showed it had been serviced on March 6, the plugs had to be pulled and that in replacing them the feeder pump plug was mistakenly put in the constant "hot line" outlet.

   In our view Miss Vroom offered evidence from which reasoning minds rationally could find that Arundel owed her the duty to maintain the water-conditioning equipment in proper and safe condition, that it carelessly violated this duty and that its negligence[***11] brought about the very high caustic content of the water that burned her mouth and caused the physical harm, the effects of which she continued to feel at the time of trial.

   Judge Markell said for the Court in Charlton Bros. Co. v. Garrettson, 188 Md. 85, 94, that:

   "The law requires proof of probable, not merely possible, facts, including causal relations.  Reasoning post hoc, propter hoc is a recognized logical fallacy, a non sequitur.  But sequence of events, plus proof of possible causal relation, may amount to proof of probable causal relation, in the absence of evidence of any other equally probable cause."
 
[*664] Messrs. Karpen and Hurney offered evidence that it was probable that Arundel had negligently caused the water that came from the bathroom spigot and into Miss Vroom's mouth to be filled with highly concentrated caustic soda and that caustic soda (or household lye) could harm the skin and mucous membranes. Miss Vroom testified that the water did burn her skin and mucous membranes and that she was well and sound orally up to the instant she put the water in her mouth and that she has not since been orally sound and well.  No evidence [***12]of any other equally probable cause of the harm Miss Vroom suffered had been offered when Judge Melvin ruled.

   It is not always necessary that the existence of physical injury and the source of its cause be proved by expert medical testimony.  "Particularly is this true when the disability develops coincidentally with, or within a reasonable time after, the negligent act, or where the causal connection is clearly apparent from the illness itself and the circumstances surrounding it, or where the cause of the injury relates to matters of common experience, knowledge, or observation of laymen." Wilhelm v. State Traffic Comm., 230 Md. 91, 99; Straughan v. Tsouvalos, 246 Md. 242, 257-258. See also Deremer v. Liston , 252 Md. 571, 577-578. We think this is a case where the exception is applicable.  Miss Vroom was entitled to have a jury consider her account of the harms she suffered on March 6 and her subsequent harms.

   Judgment reversed, with costs, and case remanded for a new trial. 

MORRIS v. GOVERNOR OF MARYLAND et al. 
No. 125 (Adv.), September Term, 1971
 
Court of Appeals of Maryland
 
263 Md. 20; 281 A.2d 216; 1971 Md. LEXIS 667

 June  25, 1971  
 September  17, 1971, Filed

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

CORE TERMS:  ballot, voter, constitutional amendment, general election, proposed amendment, proposing, Constitutional Amendments', delegation, newspaper, election, prescribe, voting, duty, proclamation, prescribed, Constitutional Law, laid down, understandable language, immediately preceding, sovereignty, unconstitutionally, declaration, misleading, condensed, effective, ensuing, printed

COUNSEL: Elizabeth M. Eckhardt for appellant.

   Francis X. Pugh, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellees.

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

OPINIONBY: HAMMOND

OPINION: [*21] [***3] [**216] Per Curiam Order

   For reasons to be stated in an opinion to be filed later, it is this 25th day of June, 1971

   Ordered by the Court of Appeals of Maryland that the action of the Circuit Court for Anne Arundel County in declaring in its decree of June 23, 1971 that the Constitutional amendments denoted on the ballot in the General Election of November 3, 1970 as questions 1, 2, 4, 5, 6, 7, 8 and 9 had been constitutionally adopted and were effective parts of the Constitution, be, and it is hereby, affirmed with costs; and it is further

   Ordered that the mandate be issued forthwith.

    At the general election of November 3, 1970 the voters approved eight amendments [**217] to the Constitution of Maryland. n1 The appellant, a resident of Howard County, [*22] a payer of local and State taxes, and a voter, on March 18, 1971 filed a petition seeking a declaration that each proposed amendment had been unconstitutionally placed on the ballot, that each had been unconstitutionally submitted to the electorate and that, therefore, despite the approval given each amendment by the voters and the resulting proclamation of the Governor that each of the amendments had been adopted [***4]by the people as part of the Constitution of Maryland, the several amendments had not been constitutionally adopted and had never become part of the Constitution.

n1 The amendments, identifying them by their respective Ballot Question Numbers, were No. 1 (creation of the office of Lieutenant Governor); No. 2 (creation of the District Court); No. 4 (creation of a General Assembly Compensation Commission); No. 5 (membership and reapportionment of the General Assembly); No. 6 (period of residency required to be eligible to vote); No. 7 (authorizing the Governor to make changes in the organization of the Executive Branch); No. 8 (establishing for any county an alternative procedure for adopting a charter form of government); No. 9 (permitting on a voluntary basis reference to a Supreme Being and prayer in any governmental school, institution or place).

   Judge Evans declared on June 23, 1971 that all eight of the amendments had been constitutionally adopted and were effective parts of the Constitution. After consideration[***5] of the briefs and oral arguments of the parties, we affirmed by per curiam order of June 25, 1971 and we now give our reasons for so doing.

   The standing of the appellant to request and receive the judicial declarations as to whether the eight amendments involved have become part of the Constitution of Maryland has not been challenged.  She urged upon us two main propositions.  First, the General Assembly did not follow the mandate of Art. XIV, § 1 of the Constitution and itself prescribe the form in which each amendment was to be submitted to the voters but rather, impermissibly and ineffectively, redelegated to the Secretary of State the function in this regard that the people had delegated by the Constitution to the legislature.  Second, each ballot title was fatally faulty and unconstitutional in that each was "misleading, vague, nondescriptive" and disguised and misstated the purpose and effect of its respective amendment.

   The Attorney General replied by asserting that the courts cannot go behind the executive's proclamation that a proposed amendment has been adopted by the people and become part of the Constitution, and since the [*23] appellant's suit was not filed until[***6] some four months after the proclamation, the matter was beyond judicial reach.  Further, he urges that there had been no unconstitutional delegation to the Secretary of State but, assuming there had been, the will of the people expressed at the voting machines should not be thwarted after the fact, and finally that the ballot titles were sufficient fairly to apprise the voters of the amendments presented to them for adoption or rejection.

   The cases offer support for the argument of the Attorney General that the courts are without jurisdiction in the matter once the Governor has proclaimed that a constitutional amendment has been adopted by the voters and has become part of the Constitution.  Miles v. Bradford, 22 Md. 170, 184-185; Anderson v. Baker, 23 Md. 531, 615; Worman v. Hagan, 78 Md. 152, 165; Board v. Attorney General, 246 Md. 417, 429. But as the Court suggested in Anderson v. Baker at page 628 of 23 Md., there may be such a clear case as to warrant judicial intervention in a political area.  Therefore, while we do not reject the principle primarily contended for by the Attorney General, we see no need now to invoke it, preferring to rest our decision on[***7] the merits.

   [**218] We do not agree with the appellant.  Article XIV, Sec. 1 of the Maryland Constitution provides in part that:
 
"The bill or bills proposing amendment or amendments shall be published by order of the Governor in at least two newspapers in each County * * * and in three newspapers 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."
 
It is stipulated that the text of each constitutional amendment was published once a week for four weeks immediately [*24] preceding the general election of November 3, 1970 in each of sixty-eight newspapers throughout the State in compliance with the directions of Sec. 1 of Art. XIV, at a cost of over $150,000.

   Each bill proposing an amendment concluded with the following language:
 
"That the foregoing sections hereby proposed as amendments to the Constitution of Maryland, by Section 3 of this Act, at the next ensuing general election to be held in this State, shall[***8] be submitted to the legal and qualified voters thereof for their adoption or rejection in pursuance of directions contained in Article 14 of the Constitution of this State, and at the said general election, the vote on the said proposed amendments to the Constitution shall be by ballot, and upon each ballot there shall be printed the words 'For the Constitutional Amendments' and 'Against the Constitutional Amendments' as now provided by law, and immediately after said election, all returns shall be made to the Governor of the vote for and against said proposed amendments, as directed by said Article 14 of the Constitution, and further proceedings held in accordance with Article 14."

   The phrase "and upon each ballot there shall be printed the words 'For the Constitutional Amendments' and 'Against the Constitutional Amendments' as now provided by law" can only have referred to Code (1971 Repl. Vol.), Art. 33, § 16-6.  Paragraph (a) thereof provides that:

   "The ballots shall contain a condensed statement in understandable language of every constitutional amendment * * *.  It shall be sufficient in any case to print the legislative title, a brief summary of the contents or purpose [***9]of the proposed amendment * * * unless the act [*25] proposing the constitutional amendment * * * specifically provides the title to be used.  The Secretary of State shall prepare and certify the form in which a constitutional amendment * * * shall appear * * *."

   If the legislative titles had been used on the ballots it could hardly be argued that the legislature, as a result of what it specified in each bill proposing an amendment and by its incorporating by reference the provisions of § 16-6 of Art. 33 of the Code, did not fully meet the constitutional directives in Art. XIV, Sec. 1.  Appellant therefore is left only with the argument that because the Secretary of State is told by the legislature that he need not use the legislative titles but can summarize for the ballots the contents or purpose of each proposed amendment, there has been an unconstitutional delegation of legislative duties. Appellant argues earnestly that the legislature has no inherent or plenary power in performing its function in the amending process but can only do precisely what the Constitution says it can do, no more, no less. In Board v. Attorney General, supra (p. 432 of 246 Md.), and [***10] Bourbon v. Governor of Maryland, 258 Md. 252, 257-258, 262, we pointed out that, while the legislature in proposing amendments does not exercise its ordinary legislative powers or any part of the sovereignty of the people that has been entrusted to it but acts under a limited power which the people chose to confer upon it rather than upon either [**219] house, the Governor or a special commission or body, nevertheless, the people contemplated in adopting Sec. 1 of Art. XIV that the legislature, in acting under that section, would necessarily avail itself of some of the powers and procedures customarily used in legislating.  We see no necessity to hold that the legislature could not prescribe the form in which an amendment was to be submitted to the voters by the general enactment which is now § 16-6 of Art. 33 of the Code, and we hold that the authority given the Secretary of State to choose between a legislative title [*26] and a summary he prepared was not an impermissible delegation of legislative power.  From time to time since 1896 at least (Ch. 202 of the Laws of 1896), the legislature has by general legislation prescribed to some extent the form in which a proposed[***11] constitutional amendment is thereafter to be submitted to the voters. This Court seemingly has regarded such a procedure as acceptable and valid.  In Warfield v. Vandiver, 101 Md. 78, 126-127, the contention was made that the form of submission in Section 2 of the bill that proposed the amendment attacked should have been set forth in a separate bill.  The Court noted that the Constitution:
 
"in equally emphatic terms, declares that the proposed 'amendments shall be submitted in a form to be prescribed by the General Assembly.' Obviously this means, according to the contention of the appellee, that the same body which may propose amendments may also prescribe the form, that is the method, in which they shall be submitted; and section two of the franchise amendment does nothing more than prescribe a form for submission of the amendment to the vote of the people.  * * * We may add this observation, that had section two been wholly omitted, or if it were now stricken out, the Code would supply all the details and machinery needed to place the amendment on the official ballot at the next general election." (last emphasis supplied.)

   Since the passage of Ch. 739[***12] of the Laws of 1957, the Secretary of State has been authorized to and has prepared ballot titles for proposed amendments.  See Code (1947 Cum. Supp.), Art. 33, § 62, and (1957), Art. 33, § 94 (i).  This approach met the approval of Attorney General Hammond in 33 O.A.G. 178, and was approved by the voters as to questions put to referendum, see Art. XVI, Sec. 5 (b) of the Constitution.  The legislature in § 16-6 of Art. 33 provided ample standards for the Secretary [*27] of State, such as a "condensed statement in understandable language," the "legislative title," "a descriptive title in boldface type containing not more than three words." The delegation, such as it is, meets the tests this Court has heretofore laid down with approval.  Givner v. Commissioner of Health, 207 Md. 184; Baltimore County v. Mo. Realty, 219 Md. 155; Turf Valley Associates v. Zoning Board of Howard County, 262 Md. 632. We see no more improper delegation here of legislative duty than there is of judicial duty when a court reporter rather than the court writes the official syllabus of the opinion of the court.

   We shall not discuss the ballot titles in detail, finding no substance in the [***13] claim that they were inadequate or misleading.

   Using the tests of the sufficiency of legislative titles, we find the ballot titles here challenged beyond successful attack.  Allied American Co. v. Commissioner, 219 Md. 607, 614; Prince George's County v. Donohoe, 220 Md. 362, 367. If we had doubts, we should be most reluctant after the election to rule that the voters did not know what they were voting for or against, informed as they presumably had been by the very extensive newspaper, radio and television publicity and public discussion prior to the election. Dutton v. Tawes, 225 Md. 484, 493-494. 

ASSOCIATES DISCOUNT CORPORATION v. HILLARY et ux. 
No. 292, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 570; 278 A.2d 592; 1971 Md. LEXIS 952

 June  25, 1971, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed April 19, 1971; Motion Granted May 10, 1971 on Certain Questions and Set for Rehearing.

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

DISPOSITION: Judgment reversed and the case remanded for an entry in the docket of the case in the Circuit Court for Anne Arundel County that the verdict of the jury is sustained as to $19.91 only and that a judgment of non pros be entered pursuant to Maryland Rule 653, the costs in this Court to be paid by the appellant, the costs in the lower court to be paid by the appellees.

CORE TERMS:  punitive damages, trespass, tort-feasor, repossessed, independent contractor, repossess, compensatory damages, wanton, evil, repossession, contractor, driveway, holder, notice, motive, Maryland Rule, sufficient evidence, night, oppression, financial worth, repossessing, malice, advice, declaration, animosity, supposed, azalea, street, mineral rights, purchase price 

COUNSEL: [***4]

   Argued and reargued by C. Edward Hartman, II, with whom was Stanley E. Hartman on the brief, for appellant.

   Argued by James G. Perry and reargued by Melvin J. Sykes, with whom was James G. Perry on the brief, for appellees.

JUDGES: The cause was argued on March 4, 1971, before Barnes, McWilliams, Finan, Singley and Smith, JJ., and reargued on June 1, 1971, before Hammond, C. J., and Barnes, McWilliams, Finan, Singley and Smith, JJ.  Barnes, J., delivered the opinion of the Court.

OPINIONBY: BARNES
 
OPINION: [*572] [**593] The appellees, Theodore F. Hillary and his wife Dorothy Marie Hillary (Hillarys), on November 7, 1967, filed in the Circuit Court for Anne Arundel County a three count declaration charging trespass to realty, personalty and conspiracy to commit same against the appellant, Associates Discount Corporation (Associates).  Also charged in the declaration individually and as agents, servants and/or employees of Associates were James Reese, William Osenberg, Charles C. Wanner and Arthur Frank Greenbaum, t/a Adjustments Services, Inc.

   Near the end of the trial, the Hillarys pursuant to [*573] Maryland Rule 541 moved to dismiss the declaration against[***5] all of the defendants except Associates.  The trial court (Beardmore, J.) granted the Motion for Dismissal on the condition that it be [**594] with prejudice, "leaving in the case as sole defendant, Associates Discount Corporation."

   Associates then promptly moved for its own dismissal on the theory that a voluntary dismissal with prejudice by the Hillarys of their tort claims against the agents and servants of Associates constitutes a release of Associates, their employer.  Associates contends on appeal that the trial court committed reversible error in denying its Motion for Dismissal.  The jury subsequently found for the Hillarys on all counts and awarded $19.91 compensatory damages and $15,000 punitive damages. A judgment was duly entered for $15,019.91 against Associates.  After the denial by the trial judge of Associates' motion for judgment n.o.v., or in the alternative, for a new trial or a remittitur of the $15,000.00 punitive damages, the judgment became absolute.  Associates thereafter filed a timely appeal.

   Prior to the Hillarys' Motion for Dismissal, there had been a colloquy between the court and counsel on the question of admitting evidence of the defendants' [***6] financial worth for purposes of punitive damages. The court noted that the legislature in passing the Joint Tort-Feasors Act failed to provide for apportionment of damages.  Recognizing the unfairness of the possible joint liability of the individual defendants for potentially great punitive damages based on the financial worth of the corporation, the court still indicated that it would allow evidence of the net worth of the defendants. 

   It was at this point that the Hillarys moved to dismiss the action against all defendants except Associates apparently theorizing that evidence of the financial worth of the more impecunious defendants would have a chilling effect upon possible punitive damages.

   The facts giving rise to the action are basically undisputed.  In February, 1965, Layton Braun, a friend of the [*574] Hillarys, purchased an automobile under an installment contract.  This installment contract, which provided for the acceleration of payments and repossession of the automobile in the event that payments were not made when due, was in turn purchased by Associates. After a series of missed payments and bad checks, Associates' office manager, Charles Wanner, instructed[***7] his outside adjusters, James Reese and William Osenberg, to repossess the Braun automobile if they could not bring the account to date.  On the evening of August 28, 1967, Reese and Osenberg located the Braun automobile parked in the Hillary driveway. The Hillary car was parked directly behind the Braun car, thus making it impossible to take the Braun car without first moving the Hillary car.  Reese and Osenberg asked the Hillarys to move their car so that they could take the Braun car.  The Hillarys refused, saying that they had been loaned the use of the Braun car for the following day, that they knew nothing of the finance agreement and that they would not surrender the Braun car without the authorization of Layton Braun or confirmation by the State Police.  It was already late at night so Reese and Osenberg called Wanner for further instructions.  Wanner instructed them to turn the matter over to Arthur Greenbaum, trading as Adjustment Services, Inc., a repossessing service.  Reese and Osenberg called Greenbaum, giving him the address and describing the car to be repossessed. Later that evening after the Hillarys were asleep, Greenbaum moved their car out onto the street and [***8]took the Braun car which he later turned over to Associates.  In the process of moving the cars, Greenbaum damaged five azalea bushes valued at $19.90 and also made a tire mark on the lawn.

   Charles C. Wanner, office manager of Associates since 1955, testified that Associates had written Braun a letter dated September 1, 1967 -- shortly after the repossession of the Braun car on August 28, 1967 -- which stated, inter alia , "Did you know that when we repossessed your car, your rights were not entirely extinguished?" (Emphasis supplied.) [**595] This letter was actually received by Braun, a [*575] post office registered mail return receipt being in Associates' file.  He admitted that Reese and Osenberg had reported to him that the Braun car was at the home of the Hillarys and was blocked in on their driveway. Reese and Osenberg generally stopped work around 7:30 to 8:00 p.m., so that Wanner "told them since they [the Hillarys] wouldn't give them the car for them to call Adjustment Services and . . . assign it to them who had people that were on the street at all times, or who would work during the night." In the morning one of the Hillarys called Wanner, told him[***9] that the Braun car had been "repossessed out of their driveway" and complained about their lawn being torn up and some azalea bushes being knocked down.  Wanner told the one calling "to get in touch with Adjustment Services being as they were the people that repossessed the unit for us." (Emphasis supplied.) Wanner also stated that notwithstanding the notice given to him, he "still accepted the car from Adjustment Services and put it through the sale." Wanner also stated that because of the poor record payment of Braun and the frequent defaults in payment, it was "very urgent that this car be repossessed that particular night." Wanner testified also that Adjustment Services gave night service a "lot of times, not always." At the time he directed that Adjustment Services be called, he knew that the Hillarys had refused to move their own car so that the Braun car could be moved from the Hillary driveway and that the Braun car could not be driven or moved from the Hillary driveway without the Hillary car being moved.

   Reese testified that Mrs. Hillary had stated that if a policeman came and told her to move the automobile, she would move it.  He reported the situation to Wanner, who[***10] told him and Osenberg to call Adjustment Services and tell them to repossess the car.

   Greenbaum in his deposition, part of which was read into evidence at the trial, stated that he always attempted to make a repossession on the date of receiving [*576] an assignment.  When he was given this assignment, he was given no "directions or warnings in regard to it."

   The jury's award of $19.91 in compensatory damages included the $19.90 under the trespass to realty count and $.01 compensatory damages under the trespass to personalty count for the moving of the Hillary car by Greenbaum.

   One of the Associates' arguments on appeal, as mentioned above, is that its only liability is that of an employer whose liability is derived from its employees.  It contends that once its employees are released from personal liability, it also by the very nature of its liability is released.

   The Hillarys, on the other hand, contend that the dismissal with prejudice is not a final adjudication and does not result in a release of Associates in any event.  We do not find it necessary to decide these interesting questions, inasmuch as we have concluded that there was sufficient evidence in the case, [***11]with all reasonable inferences to be drawn from that evidence in favor of the Hillarys, to support the jury's verdict for compensatory damages of $19.91.  We are of the opinion, however, that there was not sufficient evidence to permit the submission of an issue of punitive damages to the jury, so that the judgment including $15,000 punitive damages must be reversed.

   Code (1969 Repl. Vol.) Art. 83, § 141 (a) provides:

   "(a) When seller may repossess.  -- When the buyer is in default in the payment of any sum due under the installment agreement, or in the performance of any other condition which it lawfully requires him to perform in order to obtain title to the goods, or in performance of any promise the breach of which is, by the agreement, expressly made a ground for repossessing such goods, the holder may repossess the goods.  Unless [**596] the goods can be repossessed without use of force, they shall be repossessed by legal process.  [*577] Nothing herein shall be construed to authorize a violation of the criminal law."

   Although it is clear from the statute that Associates had the right to enter the Hillary property to repossess the Braun automobile, the[***12] statute does not authorize a violation of the criminal law.

   The Code of Anne Arundel County (1967), Section 6-119 provides:
 
"Any person who shall enter upon the land or premises of any other person in the county, to the injury of such land and premises and against the wishes or notice of the owner thereof, shall be liable to a fine of not less than five dollars nor more than ten dollars for each offense to be collected as other fines, and nothing contained in this section shall repeal, modify or be in conflict with any existing law on the subject of trespassing."

   There was evidence from which the jury could have found that entry was against the wishes or notice of the Hillarys and this was an illegal trespass.

   The evidence we have already set forth and the reasonable inferences favorable to the Hillarys to be drawn from that evidence, although somewhat scanty, is sufficient, in our opinion, to warrant the submission of the case to the jury on the theory that Associates, Greenbaum, Reese and Osenberg were joint tort-feasors. The trial court did instruct the jury on this theory and we see no error in the instructions in this regard.

   Wanner, as well as Reese and Osenberg, [***13] knew of the refusal of the Hillarys to permit the Braun car to be taken.  They knew how the Braun car was blocked in by the Hillary car and that an unlawful trespass would likely occur if Greenbaum or his employees (Adjustment Services) were to enter, necessarily move the Hillary car and repossess the Braun car.  Prior to the sale of the repossessed car, Wanner knew of damage to the Hillary [*578] property and the moving of the Hillary car without permission, but nevertheless went forward with the sale and wrote Braun the letter of September 1, 1967, using the words, "We repossessed" the Braun car.  The jury could infer that this was a ratification of the acts of Greenbaum and conclude that Associates, Greenbaum, Reese and Osenberg were joint tort-feasors. See 52 Am. Jur. Trespassers, § 31, page 861.

   It appears to be conceded that Greenbaum was an independent contractor. This status alone, however, does not necessarily prevent Associates as his employer from liability.

   As Judge (now Chief Judge) Hammond aptly stated for the Court in Samson Co. v. Brusowankin, 218 Md. 458, 464, 147 A. 2d 430 (1958):

   "The cases make it plain that the mere employment of an independent [***14]contractor will not always relieve the principal from liability for damage done by the contractor. If the injury that occurs is such as might have been anticipated as a probable consequence of the execution of the work let out to the contractor under the instructions given by the employer, the employer, as well as the contractor, may be held liable.  P., B. & W. R. Co. v. Mitchell, 107 Md. 600; Bonaparte v. Wiseman, 89 Md. 12. In Levi v. Schwartz, 201 Md. 575, 583, the trial court instructed the jury that if the contractor 'acted under the direction or with the consent of the officers or agents of the developer * * * then the developer and the officers or agents who gave authorization are liable' for the acts of the contractor, and this Court said: 'We think that instruction was correct.' We have no difficulty in concluding that what occurred as a result of the acts and omissions of Samson [**597] should have been foreseen by it and that the jury could find it responsible."

   [*579] See 41 Am.Jur.2d Independent Contractors, § 34, page 794.  See also § 44, page 811 where it is stated:

   "As a general rule, where a trespass is committed upon the rights[***15] or property of another, by the defendant's advice or direction, the contractual or other relation, including that of an independent contractor, between the immediate agent of the wrong and the defendant, is immaterial in determining the defendant's liability.  Where a trespass is committed by the advice and direction of the employer or contractee, or the work necessarily involves a trespass, the employer cannot justify the wrongful act by the plea that work was done by an independent contractor."
 
See also South Carolina Natural Gas Co. v. Phillips, 289 F. 2d 143 (4th Cir. 1961); Anderson v. United States, 259 F. Supp. 148 (E.D. Pa. 1966); Lewis v. Phillips, 223 Ark. 380, 266 S.W.2d 68 (1954); Ketcham v. Newman, 141 N. Y. 205, 36 N. E. 197 (1894); 21 A.L.R. § 7 at 1261.

   The entry of a dismissal with prejudice as to three joint tort-feasors, but not as to the fourth joint tortfeasor will not, in view of the provisions of the Uniform Contribution Among Tort-Feasors Act, Code (1968 Repl. Vol.), Art. 50, § 16, et seq., discharge the fourth joint tort-feasor. Art. 50, § 18 provides that the recovery of a judgment of an injured person against one joint tort-feasor[***16] does not discharge the other joint tort-feasor and § 19 provides that a release by the injured person of one joint tort-feasor whether before or after judgment does not discharge the other tort-feasors unless the release so provides.  These statutory provisions change the common law rule. See Trieschman v. Eaton, 224 Md. 111, 117-18, 166 A. 2d 892 (1961). Even if the dismissal with prejudice could be equated with a release of the three joint tort-feasors, there was obviously no intention to "release" [*580] Associates or to dismiss Associates with prejudice.  The intention was to the contrary.  Associates, therefore, was not released from liability as a joint tort-feasor and the award of the jury for $19.91 compensatory damages should be sustained.

   We now turn to a consideration of the award of $15,000.00 punitive damages.

   In our opinion, the decision of our predecessors in B. & O. R. R. Co. v. Boyd , 63 Md. 325 (1885) is closely in point and decisive of the question in regard to punitive damages in the present case.  In the Boyd case the plaintiff filed an action of trespass q.c.f. against the railroad company for entry upon her land, laying tracks and running[***17] trains over it.  The trial court in that case permitted the case to go to the jury for allowance of punitive, as well as compensatory, damages.  In reversing a judgment for the plaintiff, Judge Miller, for the Court, stated:

   "We are all of opinion the plaintiffs are not entitled to recover exemplary damages, and consequently that there was error in granting their second prayer, which allowed the jury to give such damages.  This court has, on many occasions, had this subject before it, and in the very recent case of R. R. Co. v. Hoeflich , 62 Md. 300, 307, the question was very carefully considered, and we there said that 'to entitle one to such damages there must be an element of fraud or malice, or evil intent, or oppression, entering into and forming part of the wrongful act.  It is in such cases as these that exemplary or punitive damages are awarded as a punishment for the evil motive or intent with which the act is done, and as an example or warning to others.  But where the act, though wrongful in itself, is committed in the honest assertion of a supposed right, or in discharge of duty, or without any evil or bad intention, there is no ground on which such damages can[***18] be awarded.' This, [*581] we are satisfied, places the doctrine upon the right ground, and the rule applies as well to cases of injury to property as to the person.  A careful examination [**598]of the testimony in the record has convinced us that in the acts of the defendant in entering upon and building the tracks for their road over the plaintiffs' lot, and the continued use of them down to the bringing of the action, there is not a single one of the elements thus enumerated as essential to the allowance of such damages."

   * * *
 
"Counsel may have been mistaken in this view of the law, but there is nothing to show that he acted in bad faith, or that the company, in continuing to use the land under his advice, after the receipt of the letter from the plaintiffs' counsel, acted in a spirit of oppression, or from any evil motive or intent. Clearly this is not a case for punitive damages."
(63 Md. at 334-36.)
 
   Chief Judge Hammond in Damazo v. Wahby, 259 Md. 627, 638-39, 270 A. 2d 814 (1970) aptly stated for the Court:

   "The Maryland rule is that malice in the sense of deliberate and improper violation of a known right, that is, absence of legal justification, [***19] will support an action and permit recovery of compensatory damages for deprivation of known contractual rights but that actual malice must be shown to support punitive damages. Knickerbocker Co. v. Gardiner Co., 107 Md. 556; Stannard v. McCool, 198 Md. 609; Heinze v. Murphy, 180 Md. 423. There is no evidence here to show more than that Damazo wanted to benefit himself by receiving the gross purchase price without diminution for commissions and the [*582]various purchasers wanted to pay a lesser purchase price that the avoidance of the earned commissions would permit."

   See also St. Paul at Chase Corp. v. Manufacturers Life Ins. Co., 262 Md. 192, 278 A. 2d 12 (1971).

   The Hillarys argue that wanton conduct is sufficient to justify an award of punitive damages in the present case.  See Vancherie v. Siperly, 243 Md. 366, 221 A. 2d 356 (1966) and Nichols v. Meyer, 139 Md. 450, 115 A. 786 (1921). They contend that there is evidence of wanton conduct in the entry upon the land of the Hillarys and drifting their car across the azaleas and onto the street. Assuming, arguendo, that wanton conduct would be equivalent to actual malice and sufficient for[***20] an award of punitive damages, in our opinion, there is no evidence of wanton conduct on the part of Associates, Greenbaum, Reese or Osenberg and, also, there is no evidence of any evil motive or intent on their part.

   Greenbaum did not know the Hillarys personally and neither did Associates. There was no personal animosity or spite.  The letter of September 1, 1967, from Associates to Braun shows that Associates had no animosity or ill will toward him and, indeed invited him to redeem the car or attend the proposed sale to bid and protect his interest.  Greenbaum was entering upon the Hillary property to repossess the Braun car, not to injure the Hillarys.  He was doing what he had done many times before in the course of his business.  Associates, its employees and Greenbaum were seeking to advance a business purpose of their own, under a supposed claim of right; they were not seeking to injure the Hillarys or their property and, indeed, did very little actual damage to the Hillary property. There was no wanton or reckless disregard of the Hillary property rights.  As Boyd clearly shows an ordinary trespass, in itself, and without the "spirit of oppression" or "evil motive[***21] or intent" does not justify an award of punitive damages. The trial court should have instructed the jury that there [*583]was insufficient evidence in the case to justify an award of punitive damages.

   The appellees also rely on two coal cases for the proposition that if the trespass and carrying away of the minerals are done with knowledge that the property belongs to another, punitive damages may be allowed, see Barton Coal Co. v. Cox, 39 Md. 1 (1873) or even if done through negligence, see Atlantic Coal Co. v. Maryland [**599] Coal Co., 62 Md. 135 (1884). These cases are special cases in regard to mineral rights. See 1 Harper & James Law of Torts, § 1.8, page 28.  Such cases frequently rest on special statutory provisions in regard to mineral rights. For the current Maryland Statute, see Code (1969 Repl. Vol.) Art. 75, § 41.

   As we have indicated, the verdict for $19.91 compensatory damages is supportable by the evidence on the theory of recovery against Associates as a joint tort-feasor, but, inasmuch as such a verdict is below the jurisdictional amount of the Circuit Court for Anne Arundel County, we will reverse the entire judgment for $15,019.91[***22] and remand the case for an entry in the docket in the lower court that the verdict of the jury is sustained as to $19.91 only and that a judgment of non pros be entered pursuant to Maryland Rule 653.

   Judgment reversed and the case remanded for an entry in the docket of the case in the Circuit Court for Anne Arundel County that the verdict of the jury is sustained as to $19.91 only and that a judgment of non pros be entered pursuant to Maryland Rule 653, the costs in this Court to be paid by the appellant, the costs in the lower court to be paid by the appellees. 

STATE OF MARYLAND et al. v. LUNDQUIST etc. 
No. 340, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 534; 278 A.2d 263; 1971 Md. LEXIS 951

 June  14, 1971, Decided

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

DISPOSITION: Decree affirmed.  Appellants to pay the costs.

CORE TERMS:  flag, religious, flag salute, salute, First Amendment, freedom of religion, freedom of speech, pledge of allegiance, teacher, regulation, Fourteenth Amendment, secular, concurring opinion, dicta, free speech, duty, disrespect, patriotic, religion, loyalty, national unity, oath, religious liberty, discipline, pledge, dissenting opinion, school children, convinced, binding, ceremony

COUNSEL: Argued and reargued by Francis X. Pugh, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellants.

   Argued and reargued by James J. Hanks, Jr., and George Cochran Doub for appellee.

JUDGES: The cause was argued on February 8, 1971, before Hammond, C. J., and Barnes, McWilliams, Singley and Smith, JJ., and reargued on March 1, 1971, before Hammond, C. J., and Barnes, McWilliams, Finan, Singley, Smith and Digges, JJ.  Digges, J., delivered the opinion of the Court.  Smith, J., concurs and filed a concurring opinion at page 556 infra.  Barnes, J., dissents and filed a dissenting opinion at page 558 infra.

OPINIONBY: DIGGES

OPINION: [*535] [**264] More than a quarter of a century has passed since June 14 -- Flag Day -- 1943, when the Supreme Court ruled in West Virginia State Board of Education v. Barnette, 319 U.S. 624, that a state may not compel unwilling school children to salute and pledge allegiance to the[***3] flag of the United States.  On September 18, 1970 the Circuit Court for Anne Arundel County (Evans, J.) issued a declaratory decree invalidating the key provisions of the recently enacted "Flag Salute" statute, Chapter 737, Laws of Maryland 1970, n1 as violative of the First [*536] Amendment (applicable to the states through the Fourteenth Amendment) of the Federal Constitution which provides: "Congress shall make no law . . . [**265] abridging the freedom of speech." Basing his decision squarely on the holding in Barnette, Judge Evans enjoined the appellants, the State of Maryland and the Anne Arundel County Board of Education, from enforcing the quotidian schoolroom requirement that all students and teachers, except those who object for "religious reasons," must stand, salute the flag and recite in unison the pledge of allegiance. He also prohibited enforcement of the disciplinary provision of Ch. 737 which directed that any person "who may commit an act of disrespect, either by word or action, shall be considered to be in violation of the intent of this act." Agreeing with the trial judge that Barnette fully controls the case before us we shall affirm the decree. [***4] 

n1 Now codified as Art. 77, § 77, Md. Code (1957, 1969 Repl. Vol., 1970 Cum. Supp.) Ch. 737 provides:

   "It shall be the duty of the board of education of each and every county in the State of Maryland, and of the Board of Education for Baltimore City, in the State of Maryland, to cause to have displayed a flag of the United States of America upon every public school building within their respective jurisdictions while said schools are in session, and to that end shall make all necessary purchase of flags, staffs and appliances therefor and establish rules and regulations for the proper custody, care and display of the flag in said schools; and it shall be the duty of said boards of education to provide each classroom with an American flag; to prepare for each classroom at the beginning of each day of classes in all public schools of the State a program providing for the salute to the flag and other patriotic exercises approved by the United States Government; and to require all students and teachers in charge to stand and face the flag and while so standing render an approved salute, and recite in unison the pledge of allegiance as follows: 'I pledge allegiance to the flag of the United States of America and to the Republic for which it stands; one nation under God, indivisible, with liberty and justice for all'.  Any pupil or teacher, for religious reasons, may be excused from actually repeating the words of the pledge of allegiance and from giving any form of hand salute. Any person, however, who may commit an act of disrespect, either by word or action, shall be considered to be in violation of the intent of this act.  The said boards of education may provide such other patriotic exercises from time to time as may be deemed by them to be expedient, and under such regulations and instruction as may best meet the various requirements of the different grades in such schools; all to the end that the love of liberty and democracy, signified in the devotion of all true and patriotic Americans to their flag and to their country, shall be instilled in the hearts and minds of the youth of America.

   "Sec. 2. And be it further enacted, That this Act is hereby declared to be an emergency measure and necessary for the immediate preservation of the public health and safety and having been passed by a yea and nay vote supported by three-fifths of all the members elected to each of the two houses of the General Assembly, the same shall take effect from the date of its passage."

[***5]
 
   [*537] The oath of loyalty is no recent phenomenon in Western civilization.  Described as a potent social bond in classical Greek and Roman society, and mentioned as a pledge of fealty to the king in feudal times, it had become deeply embedded in the common law of England long before its importation to America.  See, Maitland, The Constitutional History of England, 364-66 (1931) and other authorities noted by Chief Justice Vanderbilt in Imbrie v. Marsh, 3 N. J. 578, 71 A. 2d 352, 18 A.L.R.2d 241 (1950), aff'g, 5 N.J.Super. 239, 68 A. 2d 761 (1949). Oaths to uphold the United States Constitution are required of all our executive, legislative and judicial officeholders on both the state and national levels by Art. II, § 1 and Art. VI of that document itself, and oaths requiring claims of loyalty or disclaimers of subversive intent by teachers; civil servants and a multitude of citizens have been the subject of endless judicial review.  In determining the validity of oaths, courts have inquired into the narrowness with which they are drawn, the specific governmental interest they are designed to protect and their effect on free speech as well as due process rights. [***6] See generally Whitehill v. Elkins, 389 U.S. 54 (1967) and Annot. thereto contained in 19 L.Ed.2d 1333 (1968); Note, Loyalty Oaths, 77 YaleL.J. 739 (1968); Annot. Imbrie v. Marsh, supra, contained in 18 A.L.R.2d 268 (1951) and extensive later case service to date.  Thus, as recently as February 1971 the United States Supreme Court upheld an oath of loyalty to the Constitution required by the rules for admission to the New York Bar as sufficiently narrow in scope, directly related to the important governmental interest of regulating the legal profession and not employed in such a manner as to penalize political beliefs.  Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 161-64 (1971).

   As a peculiar sub-species of loyalty oaths, the pledge of allegiance to the flag was not conceived until 1892, but then only as a voluntary and recommended patriotic exercise for the quadricentennial celebration of Columbus [*538] Day.  New York was the first state to make the pledge of allegiance an obligatory requirement of education law in 1898, one day after the Spanish-American War began.  Although other states quickly followed suit by enacting similar or identical[***7] statutes, it was not until World War I that Maryland made the pledge of allegiance a required schoolroom exercise.  Ch. 75, Laws of 1918.  See, Weig and Appleman, The History of the United States Flag, passim (1961).  These statutes were to become the target of considerable litigation, but over the strident religious objections of the Jehovah's Witnesses during the 1930's the mandatory salute was [**266] upheld in a series of cases in state and federal courts, all culminating in Minersville School District v. Gobitis, 310 U.S. 586 (1940). n2 Only three years later the Supreme Court abruptly reversed this holding in West Virginia State Board of Education [*539] v. Barnette, supra. The Maryland pledge of allegiance statute, most recently codified as § 77 of Art. 77, Code (1957, 1969 Repl. Vol.), remained unchanged until it was repealed and re-enacted by Ch. 737 of the Laws of 1970.

n2 The Supreme Court thus reversed Minersville School Dist. v. Gobitis, 108 F. 2d 683 (3d Cir. 1939), aff'g, 24 F. Supp. 271 (E. D. Pa. 1938), opinion at 21 F. Supp. 581 (1937). Other flag salute cases were Gabrielli v. Knickerbocker, 306 U.S. 621 (1939), denying cert. and dismissing appeal from 12 Cal. 2d 85, 82 P. 2d 391 (1938), rev'g, 74 P. 2d 290 (Cal. App. 1937); Johnson v. Deerfield, 306 U.S. 621 aff'g per curiam 25 F. Supp. 918 (D. Mass. 1939) (three judge Dist. Ct.); Hering v. State Board of Education, 303 U.S. 624 (1938) dismissing appeal from 118 N.J.L. 566, 194 A. 177, aff'g per curiam 117 N.J.L. 455, 189 A. 629 (1937); Leoles v. Landers, 302 U.S. 656, dismissing appeal for want of substantial federal question from 184 Ga. 580, 192 S. E. 218 (1937); State ex rel. Bleich v. Board of Public Instruction, 139 Fla. 43, 190 So. 815 (1939); Nicholls v. Lynn, 297 Mass. 65, 7 N.E.2d 577 (1937); People ex rel. Fish v. Sandstrom, 279 N. Y. 523, 18 N.E.2d 840 (1939), rev'g, 167 Misc. 436, 3 N.Y.S.2d 1006 (1938); Shinn v. Barrow, 121 S.W.2d 450 (Tex. Civ. App. 1938); Reynolds v. Rayborn, 116 S.W.2d 836 (Tex. Civ. App. 1938). In Maryland the flag salute controversy never reached the Court of Appeals, although it erupted with some force at an Oxon Hill school in Prince George's County.  In September 1936 the six children of August Ludke, all Jehovah's Witnesses, were expelled for refusing to salute the flag. The Attorney General ruled that the State Board of Education had no authority to decide the constitutional question involved.  21 Op. Atty. Gen. 560 (1936). The Ludkes brought a mandamus action to compel re-admission, but were unsuccessful and did not appeal.  No. 11 at Law, Petitions, October Term 1936, Circuit Court for Prince George's County, Md. Of passing interest, the Board of Education's minutes from the period reveal that Ogle Marbury, later Chief Judge of this Court, served as successful counsel for the Board in the mandamus action.  Of equal interest, William L. Henderson, who also became Chief Judge of this Court, was the assistant attorney general who penned the opinion mentioned above.

[***8]

   The plaintiffs who have challenged the new statute in their own behalf and in behalf of others similarly situated are August Luther Lundquist and his son Eric.  The father teaches social sciences at Brooklyn Park High School and his fifteen year old son attends Andover High School.  Both schools are located in the Baltimore metropolitan area just within the boundaries of Anne Arundel County.  At the hearing before Judge Evans only Mr. Lundquist appeared as a witness.  His testimony consisted of a statement read into the record (see appendix) and cross-examination.  He claimed that he would refuse to engage in a mandatory flag salute ceremony, not for religious reasons but because he could not "in good conscience" force patriotism upon his classes.  He voluntarily if not eagerly instructed his world history classes in patriotic and democratic ideals and he had no objection to teaching courses, such as civics, which made instruction in democracy a required part of the curriculum.  Mr. Lundquist also objected strongly to being forced to salute the flag because be believed such a requirement eliminated his right to freely express his own loyalty to the United States.  He indicated, without[***9] objection, that his son shared these views and would similarly refuse to engage in the flag salute.

   Judge Evans determined that under the Uniform Declaratory Judgment Act, Art. 31A, § 16, Code (1957, 1971 Repl. Vol.) both the teacher's and the student's First Amendment rights were affected by the statute and they possessed requisite standing to challenge Ch. 737.  The Attorney General has not questioned this ruling on appeal.  Although the new act has no explicit [**267] provision outlining the consequences for refusing to salute the flag, it is quite clear that such recalcitrant students and teachers [*540] can be disciplined under other sections of the public education laws, specifically §§ 75 and 114, Art. 77 (Code 1957, 1969 Repl. Vol.).  Finally, if there should be any doubt about the immediacy of the threat to the appellants, aside from the obvious chilling effect on their First Amendment rights, see Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965), the Attorney General has admitted in the answer to the Lundquists' amended complaint that a program of enforcement is in preparation and awaits only the outcome of this case.  See Grimm v. Co. Comm'rs of Wash. Co. [***10] , 252 Md. 626, 632-33, 250 A. 2d 866 (1969); compare Hitchcock v. Kloman, 196 Md. 351, 355-56, 76 A. 2d 582 (1950); cf. Bruce v. Director, Dept. of Chesapeake Bay Affairs, 261 Md. 585, 276 A. 2d 200 (1971).

   The Attorney General claims that Barnette was decided on religious grounds, and since Ch. 737 provides for a religious exemption, the constitutionality of this act is not controlled by Barnette.  Rejecting this contention, Judge Evans' very thoughtful memorandum opinion rested on the assumption that Barnette was decided primarily on freedom of speech grounds and was therefore completely controlling.  To support this conclusion he relied on Justice Harlan's statement for the Court in Street v. New York, 394 U.S. 576, 593 (1969):
 
". . . [i]n Board of Educ. v. Barnette . . . this court held that to require unwilling school children to salute the flag would violate rights of free expression assured by the Fourteenth Amendment.
(Emphasis added.)
 
The Attorney General claims that this is gratuitous dictum and offers the following explanation, as we understand it from his brief and his oral argument, to demonstrate why Barnette does not[***11] control this case:

   He first asserts it has been traditionally understood [*541] that Barnette was decided on religious grounds, having been cited as a freedom of religion precedent in Frain v. Baron, 307 F. Supp. 27 (E. D. N. Y. 1969) and Lewis v. Allen, 5 Misc. 2d 68, 159 N.Y.S.2d 807, aff'd, 11 A.D.2d 447, 207 N.Y.S.2d 862 (1960), though he may well have added Prince v. Massachusetts, 321 U.S. 158, 165-66 (1944). Moreover, Barnette affirmed an injunction granted at the instance of religious plaintiffs and "those similarly situated" who sought to be relieved from a requirement to salute the flag on the grounds that it violated their religious beliefs.  He further argues that the main function of the opinion was to overrule Gobitis -- which rejected an identical religious claim on religious grounds.  While conceding that some of the eloquence in Justice Jackson's opinion for the majority "suggests an involvement of freedom of speech," the Attorney General contends we cannot ignore the background of that opinion and the voting pattern of the Court.  He points to Justice Frankfurter's dissenting opinion which focused in large part on religious issues [***12] and to the separate brief dissent of Justices Roberts and Reed who voted for reversal on the basis of the views expressed in Gobitis.  He has also referred us to the joint concurring opinion by Justices Black and Douglas in which they state they "are substantially in agreement" with the majority's reasoning but then go on to discuss the free exercise of religion clause. Finally, he notes that Justice Murphy's separate concurring opinion also devoted some discussion to the freedom of worship.

   On the basis of this analysis the Attorney General would have us conclude that even if Chief Justice Stone and Justice Rutledge actively favored the purported free speech rationale of the majority opinion by Justice Jackson, the six other members of the Court (three dissenting -- three concurring) viewed the decisional issue as freedom of religion. To resolve the questions raised by this suggested interpolation [**268] of the Court's vote and the result of its action in Barnette we must examine not only [*542] the opinion itself but also the constitutional and historical setting in which it was decided.

   FROM GOBITIS TO BARNETTE

   Instead of settling the flag salute controversy, [***13] the decision in Minersville School District v. Gobitis, supra, only precipitated a disagreement among the justices on the Supreme Court and exacerbated a growing conflict over the question throughout the country.  The eight to one majority ruling that upheld the expulsion of Jehovah's Witnesses schoolchildren for refusing to salute the flag was to become a three to six minority view within three years. During the same period the Witnesses became the butt of an increasing wave of violent persecution as well as discriminatory legal prosecution until their deliverance in Barnette and a series of First Amendment cases in which the Supreme Court upheld their right to practice and preach their religion.

   The major legal precedent which had blocked the Jehovah's Witnesses was a constitutional doctrine known as the secular regulation rule.  Although this rule was to be completely ignored in the Barnette majority opinion, the Attorney General is correct in asserting that it received attention in the concurring and dissenting opinions there.  The rule also served as the constitutional point of embarkation for Justice Frankfurter's discursive analysis of the flag salute requirement[***14] in Gobitis.  After observing that the First Amendment, as an historical concept, gave complete protection to religious beliefs, Justice Frankfurter reasoned that religious liberty was not absolute when it collided with the legitimate secular concerns of society.
 
"The religious liberty which the Constitution protects has never excluded legislation of general scope not directed against doctrinal loyalties of particular sects.  Judicial nullification of legislation cannot be justified by attributing to the framers of the Bill of Rights views for [*543] which there is no historic warrant.  Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.  The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities." 310 U.S. at 594-95.

   Having established this principle, he concluded that the societal goal of the pledge was the "promotion of national cohesion.  . . . an interest inferior to none in[***15] the hierarchy of legal values." "National unity," he wrote, "is the basis of national security." While "some specific need or interest of secular society," such as health, defenses or taxes might fall before the demands of First Amendment freedoms, national unity was a transcendant overriding interest before which sentiments to the contrary must give way. Pursuing this reasoning, Justice Frankfurter offered a complete justification for the flag salute:
 
"The ultimate foundation of a free society is the binding tie of cohesive sentiment.  Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization.  'We live by symbols.' The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution." Id. 596.

   The only question left unanswered then was whether the state's selection of the flag salute to achieve national [*544] unity had some rational basis. To resolve this problem Justice Frankfurter[***16] devoted the balance of the opinion to establishing the doctrine [**269] of judicial restraint in the field of education law:
 
"the courtroom is not the arena for debating issues of education policy.  It is not our province to choose among competing considerations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while respecting at the same time individual idiosyncracies among a people so diversified in racial origins and religious allegiancies.  So to hold would in effect make us the school board for the country.  That authority has not been given to this Court, nor should we assume it." Id. 598.
 
He then made the decisive assumption that a flag salute could be required of non-objecting students and reasoned that it would be an unwarranted obstruction of valid legislative judgment for the judiciary to grant exceptional immunity to dissidents:
 
"such an exemption might introduce elements of difficulty into the school discipline, might cast doubts in the minds of the other children which would themselves weaken the effect of the exercise." Id. 600.

   The opinion terminated with a final analysis of the desirability[***17] of judicial restraint and the need to let the representatives of the people take the primary role in defending personal liberties.  "To fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena, serves to vindicate the self-confidence of a free people." Id. It would be improper for the Court to interfere with the democratic process by declaring the expulsion of the Gobitis children unconstitutional.

   [*545] Justice McReynolds merely concurred in this result with only Chief Justice Stone dissenting in a vigorous defense of First Amendment freedoms.  The Chief Justice's most telling point was that the freedoms of religion and speech presuppose an even more basic constitutional value: "freedom of the human mind and spirit," which no balancing test could ever diminish and which "must be deemed to withhold from the state any authority to compel belief or the expression of it . . . ." Id. 604. See United States v. Carolene Products Co., 304 U.S. 144, 152-53, n. 4 (1938) (Stone, C. J.).

   The reaction to the decision in Gobitis has been exhaustively documented [***18]and analyzed by David Manwaring in Render Unto Caesar (Univ. Chicago Press 1962).  A broadstroke sketch based on his five years of research into the entire flag salute controversy should suffice to understand the circumstances leading up to Barnette.  Following the decision a veritable wave of mob violence, spurred on in large part by the public's apprehension over our impending involvement in World War II, was brought down upon the seemingly unpatriotic Witnesses. n3 Legal prosecutions also followed, in some instances on charges of flag desecration and even sedition, but for the most part hundreds of arrests for violations of local ordinances which prohibited door to door canvassing or which required a license tax for peddling their religious literature.

n3 Manwaring has documented such incidents in many states, including Maryland, where a mob broke up a Witness meeting in Rockville on June 19, 1940, only sixteen days after Gobitis was announced.  Render Unto Caesar, 166 and 293, n. 25.

   Scholarly[***19] reaction to the opinion also reached a high pitch, mostly critical of the Court.  See, e.g., Corwin, The Constitution and What it Means Today, 199 (1941); Rotnem and Folson, Recent Restrictions Upon Religious Liberty, 36 Am. Pol. Sci. Rev. 1053, 1063-64 (1942); Note, 26 Cornell L.Q. 127 (1940) and twenty-nine other comments that openly or tacitly questioned the reasoning or the result of the case, collected in Manwaring, Render [**270] Unto Caesar, 149.  Many of the articles appear to contain [*546] misconceptions about the complex holding, even those that looked with favor upon it, see, e.g., 14 Temple L.Q. 545 (1940). But in all fairness it should be noted that the rhetorical overtones and effect of the opinion were bound to subject it to bitter criticism for allowing national unity to override religious liberty, especially in the name of judicial self-restraint.

   The tide of opinion on the Supreme Court was changing also, but not before reaching its lowest ebb in Jones v. Opelika, 316 U.S. 584 (1942), which upheld a statute frequently used against the zealous street preachers: the peddler's license tax.  Justice Reed, who wrote the majority opinion, [***20] had little difficulty resolving this challenge to a town's right to promulgate non-discriminatory secular regulations over the use of its streets.  In spite of the fact that he explicitly disclaimed any reliance on the Gobitis opinion, 316 U.S. at 598, Justices Black, Murphy and Douglas dissented along with Chief Justice Stone and in a brief separate dissent openly repudiated their adherence to Gobitis.  Id. 623-24. Immediately after Justice Rutledge took his seat on the Court on February 15, 1943, the decision to grant a rehearing in Jones v. Opelika was announced.  318 U.S. 796-97. See Journal of the Supreme Court, October 1942 Term, 153, order at 157.  (N.B., 87 L. Ed. 1161 erroneously lists Feb. 14 as the date of the order.)

   On May 3, 1943 the Court announced its decision in Murdock v. Pennsylvania, 319 U.S. 105, Martin v. Struthers, 319 U.S. 141 and Douglas v. Jeannette, 319 U.S. 157 -- all Jehovah's Witnesses cases -- which struck down the peddler's license tax, invalidated an anti-doorbell ringing ordinance, and basically ruled as moot a federal injunction against these now unconstitutional statutes.  In the same breath (319 U.S. 103) it reversed[***21] the holding in Jones v. Opelika.  While relying heavily on a freedom of speech rationale in these decisions, the majority opinions effectively crippled the strict secular regulation rule.  Justice Jackson, in a separate opinion appended [*547] to these three cases, extensively reviewed and strongly condemned the offensive preaching tactics of the Witnesses, 319 U.S. at 167-74. In a comment which seemingly favored the continued application of the secular regulation rule, he referred to the new majority's analysis of First Amendment freedoms as "a vague but fervent transcendentalism," id. 179, which in effect gave a religious sect the privilege of invading the privacy of others.  Id. 181. Since Barnette was argued on the same day as these secular regulation decisions, it strikes us as improbable that Justice Jackson's dissenting views recommended him as the majority opinion writer for yet another secular regulation case.  Nevertheless he was the author of the Court's elaborate overruling of Gobitis.  Admittedly, another member of the new majority in Jones v. Opelika and related cases could have overturned the required flag salute on the basis of the rationale [***22]newly articulated there, but without Justice Jackson's support. Their failure to take such a course strongly suggests the Attorney General's analysis of the Court's vote is incorrect.

   In writing the opinion for the Court, Justice Jackson addressed a more fundamental issue than that posed by the religiously motivated plaintiffs or framed by the Gobitis opinion.  He meticulously pointed out that the case did not
 
"turn on one's possession of particular religious views or the sincerity with which they are held.  While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a [**271] compulsory rite to infringe constitutional liberty of the individual.  [Footnote with extensive list of scholarly articles opposing the pledge of allegiance omitted.] It is not necessary to inquire whether nonconformist beliefs will exempt from the duty to salute [*548] unless we first find power to make the salute a legal duty.

   "The Gobitis decision, however, assumed, as did the argument in that case and in this, that power exists in the State to impose the flag salute[***23] discipline upon school children in general." [Emphasis in the original.] West Virginia State Bd. of Edu. v. Barnette, supra, 319 U.S. at 634-35.
 
Having avoided a confrontation with the secular regulation rule, the Court re-examined and rejected the remaining bases of the Gobitis decision.  The Court first set out to answer Justice Frankfurter's rather strong promotion of national cohesion as an end in itself and indicated that the strength needed for national self-preservation could not be the only standard for resolving challenges against the authority of the state.  If this were the case, then governmental interests would always predominate over individual liberties.  The whole point of the Bill of Rights, the opinion reasoned, was to limit the inexorable power of the state, and without it there is doubt if the Constitution would have ever been ratified.  319 U.S. at 636-37. Indeed, enforcement of the First Amendment, rather than a source of debilitation, should be viewed as "a means of strength to individual freedom of mind in preference to officially disciplined uniformity.  . . ." Id. 637. To carry this reasoning to its logical conclusion the Court elaborated[***24] on the need for political neutrality in the public schools.
 
"Free public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.  If it is to impose any ideological discipline, however, each party or denomination must seek to control, or failing that, to weaken the influence of the educational system.  Observance of the limitations of the Constitution [*549] will not weaken government in the field appropriate for its exercise." Id.

   Disclaiming any pretense to act as the "school board for the country," the Court was quick to vindicate the extensive discretionary powers of the local boards of education.  Nevertheless, as state agencies bound by the Fourteenth Amendment, their functions were circumscribed by the Bill of Rights.  Id. As for Justice Frankfurter's suggestion that the Court had no "controlling competence" over an issue more appropriately committed to the wisdom of legislative assemblies, the Court interposed this trenchant answer:

   "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, [***25] to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.  One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Id. 638.
 
Under the Fourteenth Amendment some "rational basis" might well serve to regulate a public utility within the bounds of due process,
 
"[b]ut freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds.  They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect." Id. 639.

   Even heavier constitutional artillery was reserved for the closing pages of the majority [**272] opinion -- in language which completely refutes the Attorney General's contention that Barnette merely "suggests an involvement of [*550]free speech." The section begins with a withering attack on the critical assumption made in Gobitis that "national unity is the basis of a national security" for which the authorities[***26] have "the right to select appropriate means for its attainment." Id. 640. Accepting national unity as a legitimate end to be fostered by persuasion and example, the Court questioned the compulsory flag salute as a constitutionally permissible means to achieve that goal.
 
"Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing.  . . .

   "It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority.  We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent.  Authority here is to be controlled by public opinion, not public opinion by authority.

   "The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own.  Nevertheless, we apply the limitations of the Constitution with no fear that freedom[***27] to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.  To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to [*551] exceptional minds only at the price of occasional eccentricity and abnormal attitudes.  When they are so harmless to others or to the State as those we deal with here, the price is not too great.  But freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.

   "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." 319 U.S. at 641-42.

   In a joint concurring opinion Justices Black and Douglas stated, [***28] "[w]e are substantially in agreement with the opinion just read." While they then proceeded to discuss their "change of view" since Gobitis concerning the secular regulation rule, we fail to see how this supplementary religious liberty note to the majority's free speech rationale diminishes their affirmative acceptance of the opinion itself and not merely the result.  Id. 643-44. Justice Murphy's concurring opinion was even more explicit, for he unequivocally stated, "I agree with the opinion of the Court and join in it." Id. 644. He too placed more emphasis on the religious issues than did the majority opinion and he toned down some of its rhetoric.  Unlike Justices Black and Douglas and more in the tradition of the Gobitis dissent, he linked the freedom of religion with the freedoms of thought and speech, pointing out that these constitutional guaranties include "both the right to speak freely and the right to refrain from speaking at all, except insofar as essential operations of government may require it for the preservation of an orderly society, -- as in the use of compulsion to give evidence in court." Id. 645. The flag salute did not reach this [**273] [***29] level of required [*552] essential conduct. Contrary to the Attorney General's intimations we think that none of these members of the Court rejected the free speech resolution of the flag salute controversy, though they may have added varying pleas for religious freedom to the discussion.

   Justice Frankfurter's long dissenting opinion reemphasized and expanded his stringent views on religious liberty and the absolute need for judicial restraint.  Id. 646-71. It would serve no useful purpose to repeat his very personal restatement of the principles set forth in Gobitis.  Neither Justice Reed nor Roberts adopted this dissent, choosing instead to vote for reversal on the basis of their continued adherence to the Gobitis opinion.  Id. 642-43. Whether their cryptically brief dissent was based on stare decisis or a rejection of the views expressed by the Court is a matter of speculation.  We do know, however, that on the same day Barnette was handed down Justice Roberts announced the Court's unanimous decision in Taylor v. Mississippi, 319 U.S. 583 (1943), reversing the convictions of a number of Jehovah's Witnesses for teaching "resistance to governmental compulsion[***30] to salute" the flag. Viewing the whole problem as a matter of a fortiori reasoning, completely controlled by Barnette, the Court ruled that if the state cannot compel someone to salute the national emblem, "then certainly it cannot punish him for imparting his views on the subject to his fellows and exhorting them to accept those views." 319 U.S. at 589.

   Barnette and Taylor thus closed a stormy chapter in the history of the Bill of Rights.  No doubt a smaller majority of the Supreme Court at the time could have limited the former opinion simply to interpreting the Free Exercise of Religion Clause of the Constitution, but the fact remains they did not do so. In our view Barnette was unequivocally decided as a question of free speech under the First Amendment; it is binding as such on this Court.

   [*553] BEYOND BARNETTE

   The most significant case since Barnette involving the free speech rights of students under the First Amendment is Tinker v. Des Moines Community School Dist., 393 U.S. 503 (1969). In that opinion the Supreme Court concluded the silent wearing of black armbands in class to protest the Vietnam war could not be proscribed by school regulations, [***31] "at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school." 393 U.S. at 513. Recent flag salute and related cases have turned on this last distinction.

   In Banks v. Bd. of Public Instruction, 314 F. Supp. 285 (S. D. Fla. 1970) a three judge district court reviewed a Florida flag salute school regulation which provided an exemption for both religious and conscientious objectors but nevertheless required those children to stand while the rest of the class recited the pledge of allegiance. The panel ruled, on the basis of Barnette and Tinker, that an objecting student could not be expelled or disciplined for his conduct, but it was careful to say, "the unrefuted testimony clearly reflects that the plaintiff's refusal to stand has not caused any disruption in the educational process." 314 F. Supp. at 295. n4 In contrast, the United States District Court for the Eastern District of New York dismissed a bill of complaint for an injunction brought by a school child who refused to stand or leave the room during the recitation of the pledge of allegiance. Richards v. Bd. [***32]  of Edu. Union Free School [**274] Dist. # 17, No. 70-C-625, decided July 10, 1970.  The court specifically found that the child's conduct had caused some minor disruption and thus ruled that the case fell within the factual exception to the Tinker rationale.  Hanover v. Northrup, U. S. Dist. Ct. Conn., 325 F. Supp. 170, decided May 1, 1970 and Frain v. Baron, 307 F. Supp. 27 [*554] (E. D. N. Y. 1969) declined in accordance with Barnette to coerce unwilling school children or teachers into saluting the flag but analyzed the problem before them in terms of the Tinker decision.  See also Sheldon v. Fannin , 221 F. Supp. 766 (D. Ariz. 1963) which allowed children to remain seated during the playing of the national anthem.  But Compare Caldwell v. Craighead, 432 F. 2d 213 (6th Cir. 1970), cert. denied, 402 U.S. 953 (1971).

n4 On direct appeal to the Supreme Court that judgment was vacated and the case remanded for possible appeal to the 5th Circuit Court of Appeals.  401 U.S. 988, 91 S. Ct. 1223, 28 L.Ed.2d 526 (decided March 29, 1971).

[***33]

    The Tinker decision is a direct descendant of Barnette.  It specifically relies on the latter case, using it to demonstrate that neither "students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." 393 U.S. at 506. While the Court in Tinker affirmed "the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools," id. 507, the initial safeguard it recognized in this area was that a "student in public school may not be compelled to salute the flag," citing only West Virginia v. Barnette for this proposition.  Id. Entertaining no doubt that there is ample authority to punish students or teachers who materially disrupt proper school activities, including voluntary patriotic programs, we are far from convinced that the mere refusal to participate in any phase of the pledge of allegiance ritual is punishable.  To reach a contrary conclusion would allow the schools to discipline such refusal as "an act of disrespect," even though they may not compel this ceremony in the first place.  As the disciplinary [***34]provision of Ch. 737 seems to permit this untenable result it too must fall with the general salute requirement.

   The posture in which this case comes before us raises no factual issue of potential or actual disruption.  We recognize, as did Justice Frankfurter in the Gobitis opinion, that one student's failure to join in this group expression "might introduce elements of difficulty into the school discipline, might cast doubts in the minds of the other children which would themselves weaken the [*555]effect of the exercise." 310 U.S. at 600. As if in direct response to this assertion, the Court in Tinker has answered: "our Constitution says we must take this risk . . . ." 393 U.S. at 508. Quite aside from the fact that Barnette and Tinker are binding constitutional precedents, we also are convinced the First and Fourteenth Amendments of the Constitution require this gamble.  The salute requirement and punishment provision of Ch. 737 of the Laws of Maryland 1970 are unconstitutional and void.

   Decree affirmed.  Appellants to pay the costs.

   APPENDIX

   STATEMENT OF BELIEF BY AUGUST L. LUNDQUIST

   Since the enactment of the statute requiring a flag salute of certain [***35]teachers and students I have done much soul searching as to why I feel that I cannot comply with the law.  In doing so I must say that I have always been a loyal citizen of this great country, and under any circumstances, will always be one.

   In 1944, while still a senior in high school, I enlisted in the U. S. Navy and served honorably for two years.  Shortly after discharge I became a member of the active Naval Reserve program and have [**275] continued in the reserves to this time.  On my own initiative, during the Korean conflict, I returned to active duty for a period of a year and a half.

   As a boy and again as an adult with sons of my own I have been active in the Boy Scout movement, a significant part of which is practicing a serious duty to God and Country.  The flag salute and other forms of flag courtesy are an integral part of the scouting program.

    As a teacher and more specifically as a social studies teacher, it is my purpose to teach all students about the [*556] democratic principles which make this country great.  This country is great because it rests on the individual and his faith in his country with its principles of democracy.  This country will remain[***36] great as long as the individual citizen, by his own conviction, continues to develop his love of country in his own way and to be encouraged to express this love in those ways which seem most appropriate to the individual.

   Now I am confronted with an edict that I must not only perform an act daily but I must force others to do the same act or be in fear of the law.  This I cannot in good conscience do.  To force patriotism down on anyone is extremely repulsive to me; and ultimately an act of futility for patriotism is something you feel, something you believe, something you do as you are a part of your country, but it is something that cannot be forced.  I cannot teach democracy one minute and dictate a special form of ceremony the next and be true to myself or my students.

   I suppose what I would like to say would be that my conscience will not allow me to be forced or to force others to do acts which must come from the heart.

   I love my country, I respect my flag and other symbols of my country, but I am repulsed by the idea that this should be forced on anyone.  I cannot in good conscience do it.

CONCURBY: SMITH

CONCUR:  
Smith, J., concurring:

   Most reluctantly, I concur.  I say reluctantly[***37] because I see the possibility of very real problems from extensions of this holding, problems which in my opinion could seriously disrupt the school system.

   I had hoped that it could be shown that West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), was decided upon the basis of freedom of religion and not freedom of speech. In that situation I envisioned an opinion in this case stating that the comments in Barnette [*557] relative to freedom of speech were dicta; that although the Supreme Court's pronouncements upon Federal constitutional questions are binding upon us, its dicta, of course, are not binding; that it is well-nigh impossible in any given situation to know precisely how the Supreme Court will rule in a constitutional matter upon which it has not previously passed; n1 that in the absence of binding authority [**276] all one can do is use one's own best judgment, consulting, of course, similar cases, if any; and that with Barnette only as dicta on the freedom of speech issue, my best judgment was the statute was constitutional.

n1 If one had any doubt on this point he would need see only the comment of Mr. Justice Frankfurter in his dissent in Barnette, supra, relative to an area in which the Supreme Court had previously spoken.  He said:
 
   "I am fortified in my view of this case by the history of the flag salute controversy in this Court.  Five times has the precise question now before us been adjudicated.  Four times the Court unanimously found that the requirement of such a school exercise was not beyond the powers of the states.  Indeed in the first three cases to come before the Court the constitutional claim now sustained was deemed so clearly unmeritorious that this Court dismissed the appeals for want of a substantial federal question.  Leoles v. Landers, 302 U.S. 656; Hering v. State Board of Education, 303 U.S. 624; Gabrielli v. Knickerbocker, 306 U.S. 621. In the fourth case the judgment of the district court upholding the state law was summarily affirmed on the authority of the earlier cases.  Johnson v. Deerfield, 306 U.S. 621. The fifth case, Minersville District v. Gobitis, 310 U.S. 586, was brought here because the decision of the Circuit Court of Appeals for the Third Circuit ran counter to our rulings.  They were reaffirmed after full consideration, with one Justice dissenting.

   "What may be even more significant than this uniform recognition of state authority is the fact that every Justice -- thirteen in all -- who has hitherto participated in judging this matter has at one or more times found no constitutional infirmity in what is now condemned.  Only the two Justices sitting for the first time on this matter have not heretofore found this legislation inoffensive to the 'liberty' guaranteed by the Constitution.  And among the Justices who sustained this measure were outstanding judicial leaders in the zealous enforcement of constitutional safeguards of civil liberties -- men like Chief Justice Hughes, Mr. Justice Brandeis, and Mr. Justice Cardozo, to mention only those no longer on the Court." Id. at 664-65.

[***38]

   I find upon careful analysis of Barnette that the issue [*558] presented to the District Court of the United States for the Southern District of West Virginia and, therefore, to the Supreme Court, was whether "the law and regulations are an unconstitutional denial of religious freedom, and of freedom of speech, and are invalid under the 'due process' and 'equal protection' clauses of the Fourteenth Amendment to the Federal Constitution." Judge Digges might well in his opinion have quoted the next to the last paragraph of the Supreme Court's opinion in that case in which Mr. Justice Jackson said for the Court:

   "We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." Id. at 642.
 
This was after, as Judge Digges has said, a careful analysis of the bases upon which the opinion to the contrary in Minersville School District v. Gobitis, 310 U.S. 586 (1940), rested.

   Since I conclude that the Supreme Court decided Barnette on[***39] the issue of freedom of speech as protected by the First Amendment to the Constitution of the United States, it follows as night follows day that that opinion is controlling here.  No useful purpose would be served by a recitation of some of the fears that cross my mind concerning possible attempts to extend this holding.  I can only take comfort from the fact that although some of those fears seem to have crossed the mind of Mr. Justice Frankfurter, after a lapse of nearly 30 years many of them have not yet come about.

DISSENTBY: BARNES

DISSENT:  
Barnes, J., dissenting:

   I dissent because in my opinion the decision of the Supreme Court of the United States in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) does not require us to hold [*559]Chapter 737 of the Laws of Maryland of 1970 (the Act) unconstitutional and the Act is valid and constitutional.

   The principal point of difference between the majority and me is in regard to the holding in Barnette.  The majority has persuaded itself that the holding was based upon the "freedom of speech" provision in the First Amendment of the Constitution of the United States, [***40] as applied by prior decisions of the Supreme Court to the States allegedly through the "due process" clause of Section 1 of the Fourteenth Amendment to the Federal Constitution, and for that reason, Barnette is controlling in the present case.  On the other hand, I am quite convinced that the holding in Barnette was that the West Virginia statute requiring school children to pledge allegiance [**277] to the flag of the United States of America was unconstitutional because it violated the "freedom of religion" clause of the First Amendment. This difference of opinion is of vital importance in the present case because Chapter 737 expressly excludes compliance by any pupil or teacher who for religious reasons does not wish to repeat the words of the pledge of allegiance. It is apparent, therefore, that if the holding in Barnette is limited to the "freedom of religion" clause, Chapter 737 meets this constitutional objection and we are not required under the Supremacy Clause of the Federal Constitution or under Art. 2 of the Declaration of Rights of the Maryland Constitution to hold that Chapter 737 is unconstitutional because of the holding in that case. [***41] If, however, Barnette's holding is that the West Virginia statute violated the "freedom of speech" clause of the First Amendment, then the Lundquists -- appellees and plaintiffs below -- may successfully contend that their rights of free speech are violated, they having expressly stated that they do not decline to comply with the compulsory direction to give the pledge of allegiance for any religious reason.

   The majority opinion is interesting and even beguiling, but overlooks, in my opinion, the basic difference between a holding, on the one hand, and a dictum, on the other.  As [*560] I understand this difference, it is that a holding is that proposition of law required for the decision in the case; and if more than one principle of law may be applicable to the decision of the case, the narrowest principle necessary for the decision will be the holding.  If other broader or more general principles of law are mentioned by the deciding court, its language in regard to the broader or more general principles of law is dicta .  It is important to keep in mind this basic doctrine for the application of the all-important principle of stare decisis in[***42] our system of jurisprudence and to adhere to it strictly in view of the substantial (and to my mind largely unwarranted) extension of federal judicial power over the states and their courts by majorities of the Supreme Court of the United States during the last forty years purportedly through Section 1 of the Fourteenth Amendment. State appellate judges have the duty to sustain otherwise valid legislation of the Legislatures of their respective states unless such legislation conflicts with provisions of the Federal Constitution which have been held by the Supreme Court of the United States to be applicable.  The duty of the state appellate judges under the Supremacy Clause of the Federal Constitution and in Maryland also under Art. 2 of the Declaration of Rights in the Maryland Constitution stops at this point and their duty to sustain the Constitution and Laws of their respective states begins.  In short, there is no obligation upon this Court to anticipate what a majority of the Supreme Court will decide in the future in regard to the extension of federal judicial power allegedly through the Fourteenth Amendment (a most difficult if not impossible task in itself); its duty, [***43] as I see it, is to ascertain the holdings of the Supreme Court in this sensitive area, follow them as it must, but to await the decisions of the Supreme Court so far as any extension of those holdings is concerned.

   It is entirely clear to me that the holding in Barnette is based -- and must necessarily be based -- upon the "freedom of religion" clause in the First Amendment. [*561] This guarantee is obviously more narrow than the "freedom of speech" clause of the First Amendment in that many citizens in the Republic neither have nor profess any religion, but all use speech or its equivalent. The plaintiffs in Barnette filed the action to vindicate their religious freedom.  Freedom of speech was clearly secondary and, even if presented as a possible ground for relief, is not the holding in the opinion of the "majority" opinion of the Supreme Court in Barnette.  When one considers that Barnette overruled Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375 (1940) (only decided by the Supreme Court three years and eleven days before, after new appointments [**278] to the Supreme Court and a change of mind by two[***44] justices who participated and concurred in the majority opinion in Gobitis), which was clearly decided upon a rejection of any violation of the "freedom of religion" clause of the First Amendment as well as the dissenting opinion of Mr. Justice Frankfurter in Barnette, it becomes even clearer that this clause and not the freedom of speech clause was the basis of the holding in Barnette.

   The plaintiffs in Gobitis and in Barnette were Jehovah's Witnesses.  Their principal attack in both cases upon the pledge of allegiance and flag salute statutes in the respective cases was based on the "freedom of religion" clause. The "freedom of speech" clause was naturally added in both cases as a possible ground for unconstitutionality, but the more narrow "freedom of religion" ground, if thought to be violated, would necessarily be the more narrow principle and the necessary holding in that situation.

   The "majority" opinion of Mr. Justice Jackson in Barnette shows that the Jehovah's Witnesses who filed the complaint in that case relied upon both the "freedom of religion" and the "freedom of speech clauses" (319 U.S. at 630, 63 S. Ct. at 1181, 87 L. Ed. at 1633). This[***45] "majority" opinion only spoke for three Justices, i.e., Mr. Justice Jackson, Stone, C. J. and Rutledge, J.  It is clear [*562] from the Jackson opinion that an attempt was being made to put the decision on the "free speech" clause, although this is not directly stated, but rather obliquely attempted in Mr. Justice Jackson's statement:

    "Nor does the issue as we see it turn on one's possession of particular religious views or the sincerity with which they are held.  While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual."
(Emphasis supplied.)
(319 U.S. at 634-35, 63 S. Ct. at 1183, 87 L. Ed. at 1635-36.)

   These weasel words are admittedly clever but hardly cricket.  At best, they only represented the opinion of the three justices mentioned.  Mr. Justice Roberts and Mr. Justice Reed adhered to their views as expressed in Gobitis which, as we have seen, turned on the "freedom of religion" clause.  Mr. Justice Frankfurter dissented and his masterful (and to my mind[***46] unanswerable) opinion clearly shows that the "freedom of religion" clause was the decisive constitutional principle involved.

   To make up the majority for affirmance, at least two of the three concurring justices must be added to the Jackson three.  Fortunately, Mr. Justice Murphy wrote a separate opinion and Black and Douglas, JJ. also wrote a concurring opinion.

   A reading of the concurring opinion of Mr. Justice Murphy shows conclusively, to my mind, that, although he recognized that both freedom of religion and freedom of speech were raised by the appellees, the determining clause was that of freedom of religion. Indeed, he stated:

   "A reluctance to interfere with considered state action, the fact that the end sought is a desirable [*563] one, the emotion aroused by the flag as a symbol for which we have fought and are now fighting again, -- all of these are understandable.  But there is before us the right of freedom to believe, freedom to worship one's Maker according to the dictates of one's conscience, a right which the Constitution specifically shelters.  Reflection has convinced me that as a judge I have no loftier duty or responsibility than to uphold that spiritual[***47] freedom to its farthest reaches."
(319 U.S. at 645, 63 S. Ct. at 1188, 87 L. Ed. at 1641.)
 
[**279] He later stated:
 
"Official compulsion to affirm what is contrary to one's religious beliefs is the antithesis of freedom of worship which, it is well to recall, was achieved in this country only after what Jefferson characterized as the 'severest contests in which I have ever been engaged.'"
(319 U.S. at 646, 63 S. Ct. at 1189, 87 L. Ed. at 1641.)

   A review of the concurring opinion of Black and Douglas, JJ. -- the two justices who had joined in the majority opinion of Mr. Justice Frankfurter in Gobitis, but who changed their minds during the ensuing three-year period -- makes clear beyond peradventure, as I see it, that the ground upon which they voted to hold the West Virginia statute unconstitutional in Barnette was based on the "freedom of religion" clause.

   In the first place, they do not concur wholly in the Jackson opinion.  They stated:

    "We are substantially in agreement with the opinion just read, but since we originally joined with the Court in the Gobitis case, it is appropriate that we make a brief statement of reasons for our change [***48]  of view.

   [*564] "Reluctance to make the Federal Constitution a rigid bar against state regulation of conduct thought inimical to the public welfare was the controlling influence which moved us to consent to the Gobitis decision.  Long reflection convinced us that although the principle is sound, its application in the particular case was wrong.  Jones v. Opelika, 316 U.S. 584, 623, 62 S. Ct. 1231, 1251, 86 L. Ed. 1961, 141 A.L.R. 514. [Another Jehovah's Witness case in which Black and Douglas, JJ. dissented expressly on the 'freedom of religion' ground indicating that they now considered Gobitis wrongly decided and that they now believe that the government operating under the Bill of Rights 'has a high responsibility to accommodate itself to the religious views of minorities however unpopular and unorthodox these may be,' and that the Jones and Gobitis cases 'put the right freely to exercise religion in a subordinate position.'] We believe that the statute before us fails to accord full scope to the freedom of religion secured to the appellees by the First and Fourteenth Amendments."
(Emphasis supplied.)
(319 U.S. at 643, 63 S. Ct. at 1187-1188, [***49] 87 L. Ed. at 1640.)

   The remaining portion of this concurring opinion deals with the limits of the right to the free exercise of religion and ends with the following statement:

   "Neither our domestic tranquillity in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation.  If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors. The ceremonial, [*565] when enforced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy implement for disguised religious persecution.  As such, it is inconsistent with our Constitution's plan and purpose."
(Emphasis supplied.)
(319 U.S. at 644, 63 S. Ct. at 1188, 87 L. Ed. at 1641.)

   In summary, even if it might be thought that the "freedom of speech" clause could be a holding in Barnette (which, in my opinion, it cannot be for the reasons already stated), it is clear that, at best, such a supposed "holding" was only obliquely put by Mr. Justice Jackson for three justices and that all of the remaining justices, [***50] two of whom were necessary for the composition of a majority of the Supreme Court, and necessary for affirmance in Barnette, held to the theory that the decision was controlled by the "freedom of religion" [**280] clause of the First (and Fourteenth) Amendment.

   The high-flown and sometimes fanciful rhetoric of Mr. Justice Jackson in Barnette, relied on by the majority, thus clearly appears, as I see it, to be rather cloudy dicta at best on behalf of a minority of the Supreme Court and, however thin one slices it, it is still dicta.  The holding in Barnette is consequently limited to the "freedom of religion" clause and does not require us to hold Chapter 737 unconstitutional.

   The majority takes comfort in a dictum of Mr. Justice Harlan in Street v. New York, 394 U.S. 576, 593, 89 S. Ct. 1354, 1366, 22 L.Ed.2d 572 (1969) -- a flag burning case, in which, curiously enough, Mr. Chief Justice Warren and White and Fortas, JJ. dissented -- that Barnette "held that to salute the flag would violate the free expression assured by the Fourteenth Amendment" and then quoted the rhetoric from the Jackson opinion to which I have already referred.

   As[***51] indicated -- and as the Attorney General properly [*566] argued -- this is purely dicta on any theory and really adds nothing to the nature of the holding in Barnette.  Dicta plus dicta still equals dicta.

   Nor does the Supreme Court's decision in Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943) -- decided the same day as Barnette -- in my opinion support the majority opinion in regard to the holding in Barnette. Rather, it supports the position I think is the correct one.  Taylor was also a Jehovah's Witness case involving a prosecution under a Mississippi statute making it a crime to state or publish material calculated to encourage violence, sabotage or disloyalty to the governments of the United States or of Mississippi.  A Jehovah's Witness was indicted for distributing literature designed and calculated "to create an attitude of stubborn refusal to salute, honor and respect the flag and government of the United States." The Supreme Court, in reversing the conviction, in an opinion by Roberts, J., relied on Barnette and stated:
 
"The statute here in question seeks to punish as a criminal one who teaches [***52]resistance to governmental compulsion to salute. If the Fourteenth Amendment bans enforcement of the school regulation, a fortiori it prohibits the imposition of punishment for urging and advising that, on religious grounds, citizens refrain from saluting the flag. If the state cannot constrain one to violate his conscientious religious conviction by saluting the national emblem, then certainly it cannot punish him for imparting his views on the subject to his fellows and exhorting them to accept those [i.e. religious] views."
(Emphasis supplied.)
(319 U.S. at 589, 63 S. Ct. at 1203-04, 87 L. Ed. at 1606.)

   This looks to me like Mr. Justice Roberts and, indeed, the entire Supreme Court -- since there were no dissenting [*567] or concurring opinions in Taylor -- was of the opinion that Barnette had, indeed, been decided on the "freedom of religion" clause.

   In regard to the concurring opinion of my brother Smith, I will make a few observations.  First of all, his first impression or "hope" was indeed the correct one.  As already pointed out, the resonant rhetoric of Mr. Justice Jackson (a) could not be the holding in Barnette and (b) in[***53] any event, at best only represented the opinion on the "freedom of speech" point of three -- not of the necessary five -- justices.  The first impression is often the sound one.

   Secondly, I am happy that Judge Smith set out in footnote 1 the statement from the dissenting opinion of Mr. Justice Frankfurter in Barnette showing the extraordinary departure by the Supreme Court in Barnette from the doctrine of stare decisis.  This departure from a well-established and recently confirmed constitutional doctrine is, in my opinion, close to judicial irresponsibility and is an added [**281] reason why we should not extend the holding in that case.

   Thirdly, I cannot share Judge Smith's optimism that he "takes comfort from the fact that although some of those fears [of Judge Smith from possible attempts to extend the holding in Barnette] seem to have crossed the mind of Mr. Justice Frankfurter [apparently as expressed by him in the opinion for the Supreme Court in Gobitis and in his dissenting opinion in Barnette], after a lapse of nearly 30 years many of them have not yet come about." Not only has national unity been gravely impaired to an unprecedented extent[***54] during the 30-year period, but desecration, abuse and contempt for the flag and, indeed, for American institutions and ideals have substantially increased.  We see a recent attempt to destroy the Nation's Capitol.  The last report of the Selective Service officers indicated that at the time of the report more than 2,000,000 young men -- otherwise qualified for the military service of their country -- have refused [*568] such service on grounds of supposed "concientious scruples" not resulting from any religious belief or teaching. This extraordinary lack of patriotism on the part of this many of the Republic's younger citizens and the other matters mentioned, in my opinion, present a situation today far worse than any visualized by Mr. Justice Frankfurter in 1940 or 1943.  Indeed, a case might well be made for a finding of a "clear and present danger" to the Nation resulting from the lack of proper patriotic training in the public schools of this state and the public schools of other states.  This issue is, however, not before us; and I will not elaborate upon it.

   Another excellent reason for not extending the holding in Barnette is that, in my opinion, the provisions of[***55] the First Amendment and of selected portions of the remaining amendments through the Eighth are not properly part of the "due process" clause of the Fourteenth Amendment and were never intended so to be.  I have expressed my opinion in this regard and some of my reasons for that opinion in various prior dissenting and concurring opinions.  See State v. Fowler, 259 Md. 95, 142, 267 A. 2d 228, 253 (1970); Brukiewa v. Police Commissioner of Baltimore City, 257 Md. 36, 78, 263 A. 2d 210, 231 (1970); Miller v. State, 251 Md. 362, 383, 247 A. 2d 530, 541 (1968); State v. Giles, 245 Md. 342, 660-69, 227 A. 2d 745, 229 A. 2d 97-102 (1967); Truitt v. Board of Public Works, 243 Md. 375, 411, 221 A. 2d 370, 392 (1966); State v. Barger, 242 Md. 616, 628, 639-644, 220 A. 2d 304, 311, 317-319 (1966); Montgomery County Council v. Garrott, 243 Md. 634, 650, 653, 222 A. 2d 164, 172, 176 (1966); and, Hughes v. Maryland Committee for Fair Representation, 241 Md. 471, 491-513, 217 A. 2d 273, 285-298 (1966).

   It will not be necessary to repeat those reasons or to develop other reasons here.  The hope I have expressed that the Supreme Court, itself, will proceed to correct[***56] this grave error, failing which the Congress, pursuant to its powers under Article III of, and paragraph 5 of the [*569] Fourteenth Amendment to, the Federal Constitution, will correct it, continues to be unfulfilled.

   In view of my position that the lower court should be reversed and the injunction vacated, it is appropriate that I give my opinion briefly in regard to the other points, raised and argued, that Chapter 737 is unconstitutional. It was not necessary for the majority of the Court to reach or decide these points because of its opinion that Barnette controlled.

   The contention was made that the portion of Chapter 737 prohibiting acts of disrespect was unconstitutionally vague.  The lower court was of the opinion that this contention was correct relying upon language from a concurring opinion of Mr. Justice Rutledge in U.S. v. C.I.O., 335 U.S. 106, 141, 68 S. Ct. 1349, 1366, 92 L. Ed. 1849, 1871 (1948) and Baggett v. Bullet, 377 U.S. 360, 378, 84 S. Ct. 1316, 1326, 12 L.Ed.2d 377, 385 (1964). In my opinion, the lower court was in error in sustaining this contention.  The statutes in question [**282]in U.S. v. C.I.O., supra (Federal Corrupt Practices[***57] Act) and in Baggett, supra (a state loyalty oath by teachers) were quite different in terms from the challenged provision of Chapter 737.

   As properly construed the "act of disrespect" mentioned in Chapter 737 must occur to the flag when the pledge of allegiance is given.  Disrespect at other times would be covered by other provisions of the Maryland Code.  See, for example, Maryland Code (1971 Repl. Vol.), Art. 27, § 81 et seq. The "act of disrespect" contemplates an affirmative act of disrespect to the flag, that is, something more than standing silent.  See Bolling v. Superior Court for Clallam County, 16 Wash. 2d 373, 133 P. 2d 803, 809 (1943). A reasonable person can understand what conduct Chapter 737 forbids and this is all that is required. See United States v. National Dairy Products, 372 U.S. 29, 32, 83 S. Ct. 594, 597-98, 9 L.Ed.2d 561 (1963); Richards Furniture Corp. v. Board of County [*570]Commissioners of Anne Arundel County, 233 Md. 249, 264, 196 A. 2d 621, 629 (1964) and cases therein cited.

   Counsel for the appellees abandoned at the argument contentions in regard to an alleged establishment of religion and denial of equal protection[***58] of the laws.

   No point was raised by the appellees that Chapter 737 was unreasonable, arbitrary or capricious and thus a denial of due process as not being reasonably related to the evil the General Assembly sought to cure by the legislation. Arguments of this type would, in my opinion, go only to the wisdom of the enactment of the statute and with this we are not concerned.  See Gino's of Maryland v. City of Baltimore, 250 Md. 621, 636-37, 244 A. 2d 218, 226-227 (1968) and cases therein cited.  It may well be that a better or wiser type of statute to accomplish the legislative purpose could have been devised and several come to mind.  As I have indicated, however, these are legislative questions and are not for determination by the courts.

   I would reverse. 

THE KASTEN CONSTRUCTION COMPANY, INC. et al. v. ANNE ARUNDELCOUNTY, MARYLAND 
No. 455, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 482; 278 A.2d 282; 1971 Md. LEXIS 946

 June  4, 1971, Decided

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

DISPOSITION: Judgment affirmed, appellants to pay costs. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant construction company sought review of a judgment from the Circuit Court for Anne Arundel County (Maryland) in favor of appellee government in appellee's action that sought to recover the amount of a surety bond that guaranteed appellant's work on a public contract.

OVERVIEW:  Appellant construction company and appellee government entered into a public works contract, and appellant executed a surety bond in favor of appellee, which guaranteed appellant's completion of the work. Appellant did not complete the work on time, and appellee sued appellant to recover the amount of the bond. The county court entered judgment in favor of appellee, and the appellate court affirmed the judgment. The appellate court rejected as moot appellant's contention that appellee's decision to sue appellant was appealable to the Board of Appeals of the county (board) because the parties agreed to be bound by the decision in a separate case, which determined that such action was not appealable to the board. The county court did not err in holding that appellant and surety were liable for the entire amount of the bond as liquidated damages because completion of the work by appellee was not a condition precedent to an action on the bond. Further, appellant, as the breaching party, had no control over appellee's use of the bond proceeds.

OUTCOME:  The judgment that appellant and surety were liable to appellee on a surety bond was affirmed because the contention that appellee's action against appellant was appealable to the county Board of Appeals was moot. Appellee was not required to prove actual damages prior to suing appellant on the bond.

CORE TERMS:  surety bond, completion, liquidated damages, third part, public works, full amount, forfeit, streets, legal department, time specified, face amount, designated, appealable, estimated, easements, binding, surety, damaged, preliminary hearing, condition precedent, summary judgment, storm drainage, plus interest, specifications, declaration, collateral, predicated, construct, responded, purview

CORE CONCEPTS -  

Public Contracts Law: Terminations: Damages
If a bond is given to a public body as a prerequisite to the grant of a license or other privilege, or conditioned upon compliance with the requirements of law, the full penalty of the bond may be recovered for a breach of the bond, without proof of actual damage, in the absence of express or implied provisions to the contrary in the statute or ordinance which prescribes the bond, or in the bond itself.

Public Contracts Law: Terminations: Damages
Where the parties to a public contract intend that the surety bond call for the payment of liquidated damages, the party who breaches the contract has no control over the manner in which the other party disposes of the proceeds of the forfeit.

COUNSEL: William E. Dixon for appellants.

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

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

OPINIONBY: FINAN

OPINION: [*483] [**283] The Kasten Construction Company, Inc., appellant (Kasten), on August 4, 1967, entered into a public works agreement with Anne Arundel County, appellee (County), for the construction of certain roads and storm drainage in a real estate development situated in the County designated as Crain West.  At the same time, for the purpose of guaranteeing completion of the work, Kasten executed a surety bond in favor of the[***3] County in the amount of $33,700.00. n1

n1 The public works agreement in which Kasten appears as party of the first part and the County as party of the third part, provided in pertinent part as follows:
"* * * if the party of the first part fails to construct the roads by the time specified in accordance with the plans and specifications and to convey the roadbeds and drainage easements as herein provided or shall otherwise fail to perform this Agreement as herein set forth, the party of the third 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 construct said roads and the party 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 amount thereof; which sum shall be construed to be liquidated damages. And further to enable the party of the third part to carry out the above provisions, should it so elect, the party of the first part has delivered to the party of the third part, a fee simple deed with Special Warranty for said roads, streets, easements, structures, and facilities; which said properties, the party of the first part hereby warrants to be free of any liens or encumbrances and which said deed the party of the third part may accept at any time it may deem desirable, and the party of the first part does further warrant that it has not nor will not encumber said roads, streets, easements, structures and facilities."
 
The language in the bond itself also refers to "one of the conditions," as one for "liquidated damages to be given to carry out and faithfully perform the conditions therein."

[***4]

   [*484] [**284] In March of 1968, Kasten sold the lots in the development of Crain West to Russwood, Inc.  When the improvements (streets and storm drainage facilities) were not completed, as required by the agreement, within the time specified in the plans and specifications, the legal department of the County made demand for payment of the full amount of the bond from the bonding company.

   A request was made for an extension of the completion time; this was denied by the legal department of the County.  A further request was made for a meeting of all parties in order to attempt to solve the difficulties.  Instead of holding such a meeting the legal department of the County brought this action.

   Kasten appealed to the Board of Appeals of Anne Arundel County in an effort to present its position concerning the justification of its request for an extension of the completion date.  At the same time, Kasten requested the circuit court not to take jurisdiction over the matter until it had an opportunity to exhaust its administrative appeals.  At that time, the case of Whitehurst Building Company v. Anne Arundel County was pending before the Circuit Court for Anne Arundel County. [***5] The Whitehurst case involved the same question -- "whether the action of the County in refusing to grant [*485]an extension was such a decision that should have been appealable to the Board of Appeals of Anne Arundel County." (Anne Arundel County Code Appendix A, Art. VI, § 602D; Maryland Code (1966 Repl. Vol.) Art. 25A, § 5(U)).  The parties to the instant suit stipulated that the decision in the Whitehurst case would be binding in this case.  Evans, J., eventually ruled in the Whitehurst case that the review of such a decision was not within the purview of the Board of Appeals of Anne Arundel County.

   Upon the County's motion for summary judgment, Childs, J., granted summary judgment on June 12, 1970, as to liability, but left for later determination the issue of damages.

   On August 3, 1970, Sachse, J., heard arguments on the question of damages and the following day signed an order awarding the County judgment in the amount of $33,700.00 (the face amount of the surety bond) plus interest at 6% from February 3, 1970, the date that demand had been made for payment of the bond, without any requirement that the improvements had to be completed by Anne Arundel County. [***6]

   On appeal Kasten raises the following issues:
 
I. Was the County's decision to bring legal action appealable to the Board of Appeals of Anne Arundel County?
II. (A) Must the County complete the improvements as a condition precedent to demanding payment on the bond?
(B) Can the County enforce the bond without a corresponding obligation to complete the improvements?
III. Can interest accrue prior to the award of judgment below?
 
We shall discuss the issues in the order presented.

   I

   The question of whether or not, from a procedural [*486] standpoint, Kasten was entitled to a prior review of its request for an extension of the completion date by the Board of Appeals of Anne Arundel County, is moot.  It is quite clear from the record that Kasten stipulated with the County that it would be bound by the decision of the Circuit Court for Anne Arundel County in the case of Anne Arundel County v. Whitehurst Construction Company.  The County filed its declaration against Kasten and its surety, Maryland Casualty Company, on March 6, 1970.  [**285] Thereafter Maryland Casualty Company responded on April 20, 1970, with a "motion for preliminary hearing," asking[***7] the court to deny jurisdiction in favor of a resolution of the controversy by the Board of Appeals of Anne Arundel County.  On April 23, 1970, the County responded to the motion for preliminary hearing with a motion ne recipiatur or to strike, and at the same time filed a motion to stay collateral proceedings in the Board of Appeals.

   On May 15, 1970, a hearing was conducted in the circuit court on these pending motions and the court accepted testimony, taken in the form of oral stipulation of counsel, that the parties would abide by the ruling of Judge Evans in the Whitehurst case.  It was on the basis of this stipulation that subsequently Judge Childs, in the circuit court, entered an order granting the motion of the County to stay collateral proceedings in the Board of Appeals and directing Kasten to file its answer to the County's declaration, on or before June 1, 1970.  Kasten, while still seeking to keep this issue viable, blandly states in its brief that, "The parties to the instant suit stipulated that the decision in the Whitehurst case would be binding in this case.  Judge Evans ruled in the Whitehurst case that such decision was not within the purview of the Board[***8] of Appeals of Anne Arundel County." Kasten does not now contend that the circuit court was without jurisdiction to hear the suit below and it is our opinion that the stipulation was binding on the parties and renders moot the appealability to the Board of Appeals of [*487] the County's refusal to extend the time of completion. Bloom v. Graff, 191 Md. 733, 736, 63 A. 2d 313 (1949).

   II (A)

   The lower court found Kasten and its surety to be liable for the full amount of the bond ($33,700) as liquidated damages, and ruled that, whether or not the County performed the incompleted work prior to bringing suit or recognized an obligation to complete the work in the event it received payment on the bond, was irrelevant.  We agree with this conclusion.

   Kasten's theory of the case is that the County had the option to "sit back and refuse to take over the roads until complete -- or take over the roads, complete the work, and proceed under the bond." It contends that in the latter event the completion of the work by the County is a condition precedent to suit on the bond.  This argument is bottomed on the proposition that the County must show damages before it may collect on the bond[***9] and that until the work has been performed at the County's expense, it was not damaged, nor could the amount of damages be ascertained.  This contention is answered by Montgomery County v. Phoenix Insurance Co., 232 Md. 58, 192 A. 2d 111 (1963), wherein Hammond, J. (now Chief Judge), writing for the Court stated:

   "Phoenix defends on the grounds that the County was not damaged and therefore is not entitled to recover.  The contention is beside the point.  It is well settled that if a bond is given to a public body as a prerequisite to the grant of a license or other privilege, or conditioned upon compliance with the requirements of law, the full penalty of the bond may be recovered for a breach of the bond, without proof of actual damage, in the absence of express or implied provisions to the contrary in the statute or ordinance which prescribes the bond, or in the [*488] bond itself.  [Citing numerous cases]." 232 Md. 61.
 
Cf.  Lichtenberg v. Anne Arundel County, 258 Md. 204, 210, 265 A. 2d 222 (1970). 

   In Phoenix we also said, citing County Council v. Lee, 219 Md. 209, 148 A. 2d 568 (1959), "* * * that Montgomery County has full and complete jurisdiction [***10]and control over its roads and streets, that the County's right [**286]to grant or withhold its permission for the construction of a road by a citizen carried with it the right to prescribe reasonable terms and conditions upon which the permit to build the road would issue * * *." 232 Md. 61-62. The surety bond in that case, just as in the case at bar, was one of the conditions upon which the privilege to develop the subdivision was predicated.

   II (B)

   We think the reasons set forth above and the authority cited answer both the issues raised by Kasten, which have been designated in this opinion as II (A) and (B).  However, in discussing the latter of the two issues, we would further elaborate on the reasons why the County is not legally obligated to complete the improvements upon forfeit of the surety bond.

   The agreement between Kasten and the County is dated August 4, 1967.  At that time the face amount of the surety bond ($33,700) was the estimated cost of the improvements.  At least at the time of argument before this Court little work had been undertaken on the project.  It may now well be that, with almost four years intervening, the cost of completion of the improvements[***11] in view of the escalation of construction costs would be substantially higher than the $33,700.00 estimated in the summer of 1967.  Were this Court to adopt a legal principle which would obligate the County to complete the work on receipt of the money from the bond, we may well be establishing a precedent whereby unscrupulous developers [*489] would be encouraged to give up the ghost on any improvement contract with the County which appeared to be running over the estimated cost, forfeit the bond, and press for completion by the County.

   We think that where the parties to a contract intend that the surety bond call for the payment of liquidated damages, such as in the instant case, that the party who breaches the contract has no control over the manner in which the other party disposes of the proceeds of the forfeit. We think that such a conclusion was implicit in the reasoning of this Court many years ago in the case of Willson v. Mayor & City Council of Baltimore, 83 Md. 203, 34 A. 774 (1896), wherein Chief Judge McSherry, writing for the Court, stated:

   "On the part of the appellant it is insisted that the five hundred dollar deposit was designed to be and in reality[***12] was a penalty; whilst on the part of the city it was claimed that the sum named was intended to be and in fact was liquidated or stipulated damages which, for any breach of the appellant's bid or proposal, was to be retained by the city without reference to whether the city had actually sustained any injury or not.  * * * If the sum designated is held to be liquidated damages the only evidence necessary to warrant a recovery of that particular amount is that the contract to which it relates has been broken." 83 Md. 210.

   III

   Kasten challenged the ruling of the lower court allowing interest from the date of the demand on the bond contending that pursuant to Maryland Rule 642 interest may be had only from the date on which the verdict was rendered. Kasten quotes Rule 642 out of context and we think a reading of St. Paul at Chase Corp. v. Weaver Bros., Inc., 262 Md. 192, 278 A. 2d 12 (1971); Atlantic [*490]States Construction Co. v. Drummond, 251 Md. 77, 85, 246 A. 2d 251 (1968); Phoenix, supra, at 63; Mullan Co. v. International Corp., 220 Md. 248, 261, 262, 151 A. 2d 906 (1959), and Affiliated Distillers v. R.W.L. Co., 213 Md. 509, 516, 132 A. 2d 582 (1957),[***13] clearly illustrates that the Court may properly enter judgment for the face amount of the bond plus interest from the [**287] date of the demand for payment.  In Mullan Co., we said:
 
"* * * Ordinarily, the allowance of interest is a matter which rests in the discretion of the trier of the fact.  * * * But there are cases in which interest is recoverable as of right and this is such a case.  * * * In this case liability for the payment of interest attached on November 20, 1956, when I.B.M. made demand on Mullan and the sureties for payment of the balance due on its claim against the sub-contractor.  * * *" 220 Md. 262.

   Judgment affirmed, appellants to pay costs. 

COLBURN v. COLBURN 
No. 453, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 333; 278 A.2d 1; 1971 Md. LEXIS 933

 June  2, 1971, Decided

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

DISPOSITION: Decree reversed.  Case remanded for further proceedings conformable with the views expressed in this opinion.  Costs to be paid by the appellant.

CORE TERMS:  accounting, entireties, decree, one-half, rent, chancellor, jointly, auditor, tenants, husband and wife, deposit, alimony, revise, appointment of a receiver, separate property, revised, express promise, living apart, divorced, intent to defraud, joint benefit, present counsel, views expressed, former counsel, joint account, pendente lite, firmly, appropriated, negotiated, appearance

COUNSEL: Natalie Zimmerman, with whom was Samuel Schenker on the brief, for appellant.

   Theodore G. Bloom, with whom were Albert J. Goodman and Goodman, Bloom & Merrill on the brief, for appellee.

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

OPINIONBY: McWILLIAMS

OPINION: [*334] [**2] The record does not tell us why this once happy marriage has come unstuck but it must not be supposed that we are the least bit curious about it.  The main question before us has to do with the wife's right to an accounting in respect of property held by the entireties. It suffices to know that the Colburns were married in 1956, that their only child is retarded, that the husband has built up a business from which he derives a comfortable income, and that the wife has some property of her own.  In[***3] May of 1969 there was some unpleasantness about a purchase money mortgage in connection with the sale of some land.  Much the same thing arose in October in respect of the sale of another property when she insisted not only on being named as a mortgagee but also on being made the direct recipient of one-half of the monthly payments of principal and interest.  The husband failed to attend the closing and as a result the transaction aborted.  On 7 October the wife's attorney wrote to the husband demanding that he turn over to her one-half of the avails from all of their jointly held properties.  Since he seemed disinclined to do so she filed her bill of complaint, on 17 November, for an accounting and for the appointment of a receiver. On 14 January 1970 she left the home and within a short time thereafter she sued for a divorce.  She began receiving alimony pendente lite on 1 March 1970.

   He says, and she does not deny, that, until the separation, they continued to live together as husband and wife. They occupied the same house, they ate at the same table they looked after the needs of their child, he paid all of [*335] the bills.  He stopped giving her money after she filed[***4] the bill for an accounting. He continued to pay all of the bills, however.

   On 10 June the chancellor filed a decree, the pertinent part of which is as follows:

   "2. That Edward F. Mullen, C.P.A., be, and he is hereby appointed a special auditor of this court to take and state said accounting between the parties, of all sums collected, received, taken or appropriated by each of the parties from the following sources since October 7, 1969:

   (a) Rents from all properties owned by the parties jointly, or as tenants by the entireties.

   (b) Payments upon all mortgages owned by the parties as tenants by the entireties, with interest and principal to be stated separately.

   (c) Monies on deposit in the joint names of the parties in all savings accounts and checking accounts.

   (d) Jointly owned stocks, bonds and securities.

   (e) Securities held by either party as trustee for the other."

   The report of the special auditor was filed on 13 July.  Counsel profess to understand it but we have had small success in that regard.  However, the chancellor, on 7 August, after noting the absence of exceptions to the report, awarded judgment in favor of the wife against the husband for $5,907.55; [***5]he ordered the husband to deposit $1,380.56 in a joint account subject to withdrawal upon the joint order of himself and his wife or upon the order of the court; he ordered him to deposit in the same joint account "all future payments of principal and interest on three mortgages"; he ordered him to pay his wife one-half of the rents received from the "jointly owned rental properties." The chancellor "expressly retain[ed] jurisdiction to require such additional accounting and to pass such further orders as may be necessary [*336]to do complete equity between the parties in these proceedings."

   Responding to questions during argument, counsel told us that the dollar figures ($5,907.55 and $1,380.56) mentioned in the decree cannot be identified in the auditor's report because they had been negotiated by counsel for the wife and former counsel for the husband.

    [**3] At 11:12 a.m. on 3 September the husband's present counsel noted an appeal.  At 11:45 a.m. they entered their appearance in the case and at 3:16 p.m. (the same day) they filed a motion to revise the decree of 7 August.  On 10 September the husband's former counsel struck his appearance. On 22 September the[***6] chancellor heard arguments of counsel on the motion to revise the decree. At 2:30 p.m. on 1 October the revised decree was filed.  It restates the provisions of the decree of 7 August and, in addition, purports to give to the husband the right to deduct from the rents "taxes and insurance premiums which became due and payable after October 7, 1969 * * * [except on the residence] and after deducting therefrom all expenses incurred by agreement of the parties for repair, maintenance and improvement of any of their jointly owned properties." An hour and a quarter later a quite curious pleading was filed.  It is entitled "Motion to Extend Time for Filing Revised for Appeal." Except for the fact that it is signed by the husband's new solicitors one might surmise, at first glance, that it was the wife's motion.  The first paragraph states:

   "That a motion to revise has been heard in the above matter and negotiations are in process to revise the decree from which the appeal was taken.  This may render the appeal unnecessary."
 
The motion then goes on to ask for a 90 day extension of the time within which the record must be filed.  The transcript of the record reached this Court [***7]on 25 January 1971.  The husband did not dismiss his appeal from the decree of 7 August and there was no appeal from the revised decree which must, in the circumstances, be [*337] treated as a nullity.  Tiller v. Elfenbein, 205 Md. 14 (1954).

   The rule that a wife is entitled to one-half of the income from property held by the entireties is firmly established.  Wardrop v. Wardrop, 211 Md. 14 (1956), and the cases therein discussed.  Nor is there any doubt that courts of equity will assume jurisdiction to protect the interest of one or the other spouse in property so held.  Collier v. Collier, 182 Md. 82 (1943), and the cases therein cited and discussed.  See also Fernandez v. Fernandez, 214 Md. 519 (1957), and 18 Md.L.Rev. 326 (1958). It is clear also that a court of equity may appoint a receiver for property held by the entireties and it may require an accounting of the rent and profits from such properties.  Smith v. Smith, 211 Md. 366 (1956); Wardrop, supra; Brown v. Brown, 204 Md. 197 (1954). To the same effect see Brown v. Brown, 248 Md. 139, 146 (1967), and Howard v. Howard, 245 Md. 182 (1967), and the cases cited and discussed therein.  One[***8] must be mindful, however, of the fact that in all of the cases mentioned or referred to the husband and the wife had become separated and were living apart. Our attention has not been directed to nor have we found any case in which a wife not separated from her husband has succeeded in obtaining an accounting and the appointment of a receiver in respect of properties held by the entireties. And since we are unaware of any case in which a wife so situated has been denied such relief the question presented is something of a novelty.  In Howard, supra, we dealt with a related question but our holding there was restricted to the peculiar facts of the case; we said only that "the wife, not separated from the husband, is [not] entitled to receive half of the fair rental value of realty held by the entireties, a part of which is used exclusively by him in connection with his business and another part of which is used as their living quarters." Id. at 185.

   In the case at bar there has been no allegation or proof of an intent to defraud, or that the monies arising from the properties were being used selfishly or improperly, [*338] or that their use, whatever it might have [***9]been, did not inure to the joint benefit of the parties.  The wife did not [**4] charge her husband with non-support; there is no claim that he has failed, in any respect, to provide for her welfare and the welfare of their retarded child.  The record suggests that the properties were acquired with money earned by the husband.  She still retains the separate property she acquired as the result of a prior marriage.  The record suggests also that her only complaint was that he did not give her as much "house money" as she thought she ought to have.

   Unlike the Pennsylvania court, infra, we think it is entirely possible that the facts and circumstances of some future case might be so unusual that it would be inequitable to deny the wife an accounting and the appointment of a receiver, even though she and her husband were not separated and living apart. Cf. Whitelock v. Whitelock, 156 Md. 115 (1928). But, as we have indicated, there is nothing unusual about the facts and circumstances in the instant case.  The wife said she was content to let her husband handle all of their financial transactions and, indeed, so it appears.  In this regard what was said in Grover & Baker [***10]  Sewing Machine Co. v. Radcliff, 63 Md. 496, 500 (1885), and characterized as the settled rule in this state in Brell v. Brell, 143 Md. 443, 449 (1923), appears, a fortiori, to be apposite here.  Chief Judge Alvey said for the Court, in Grover:

   "But if such money or other separate property of the wife has been received by the husband, with the knowledge and acquiescence of the wife, without such express promise at the time, no implied assumpsit, either legal or equitable, will arise to support a claim against the husband or his estate.  The wife having the jus disponendi of her separate property, if she thinks proper to let her husband have it, or appropriate it, without any express promise or agreement at the time to account for or repay [*339] her the amount so received or appropriated, she cannot afterwards set up a claim against the husband upon the footing of a creditor.  In such case she is taken to have acquiesced in the appropriation of the fund for the common benefit of herself and husband, or for the benefit of the family." Id. at 449.

   In Lindenfelser v. Lindenfelser, 396 Pa. 530, 153 A. 2d 901 (1959), the Supreme Court of Pennsylvania conceived[***11] the rule to be:

   "Taking our conclusion in Lindenfelser [383 Pa. 424 (1956)] and De Luca [388 Pa. 167 (1957)] together, we believe the modern rule to be that where husband and wife are separated but not divorced and where one of them is excluded from the exercise or enjoyment of rights inherent in an estate held by the entireties, an accounting of the property so held may be ordered and the property or proceeds divided equally between them." (Emphasis added.) 153 A. 2d at 905.
 
Obversely, a Pennsylvania court has said:

   "* * * The legal unity of husband and wife still remains, and the husband has the entire use and the wife has the entire use, for there are no moieties between husband and wife, where the real estate has been conveyed to and held by them as tenants by entireties. McCurdy et al. v. Canning, supra, 64 Pa. pages 40, 41; Hoover v. Potter, 42 Pa. Super. 21. While the marriage subsists it makes no difference which of the parties leases the property and obtains the rents; the leasing by either is for the benefit of them in that relation. O'Malley v. O'Malley, supra, 272 Pa. page 533, 116 A. 500; Madden et al. v. Gosztonyi S. & T. [***12]  Co., 331 Pa. 476, 488, 200 A. 624, 117 A.L.R. 904. Consequently, it being [*340] admitted that plaintiff and defendant are still wife and husband, under the circumstances set forth in the bill neither could require an accounting by the other of the rents from the real estate owned by them as tenants by entireties. See Meyer's Estate (No. 2), 232 Pa. 95, 96, 81 A. 147; O'Malley v. O'Malley, supra, 272 Pa. pages 535, 536, [**5] 116 A. 500." Wakefield v. Wakefield, 25 A. 2d 841, 843 (Pa. Super. Ct. 1942) app. den. 26 May 1942.  (Emphasis added.)
 
Wakefield has been cited with approval, e.g., in Stimson v. Stimson, 346 Pa. 68, 29 A. 2d 679 (1943), and in In re Kienle's Estate, 139 N.Y.S.2d 150, 153 (Sur. Ct. 1955).

   In Wardrop, supra, Chief Judge Brune, who wrote for the Court, indicated his approval of a notion expressed in Collier, supra, that "[e]ach case will depend upon its facts and upon its appeal to the conscience of the chancellor." Id. at 21.  When we consider that, at the time the 7 August decree was passed, the parties had been divorced a mensa and that for some months the wife had been receiving alimony, [***13] both pendente lite and permanent, Judge Brune's further comment, in Wardrop, seems to be especially significant:

   "The rule [that the wife is entitled to one-half of the income from property held by the entireties] is, of course, applicable as between the parties to this suit.  We think, however, that in view of the informal understanding which seems to have existed between the parties with regard to the occupancy, income and expenses of the properties occupied by them respectively and the alimony allowed the wife during the pendency of the case in the Circuit Court and on this appeal, an accounting should not be required prior to the expiration of such payments.  When they cease, each party will be entitled to one-half of the net income from the properties [*341] owned by them as tenants by the entireties. Such rights may, if necessary, then be enforced by proceedings for an accounting; or it may be that the parties will be able to reach an agreement which will obviate the need for further litigation." Id. at 22.

   The husband's present counsel argue, in this Court, that even if the wife was entitled to the accounting prayed in her bill of complaint, the special [***14]auditor's inclusion of certain bank accounts was improper and that since the judgment against him is based in large part on the special auditor's report it too is improper.  Were this the only point in the case the husband might very well be foreclosed from advancing this argument because of his former counsel's acceptance of the negotiated figures earlier mentioned.  However, since we shall remand the case his contention can be given the further consideration we think it deserves.  We gather from the evidence that he maintained at least two bank accounts, in one of which he kept substantial balances for use as working capital and for performance bonds; in the other he kept smaller balances used mainly to pay household expenses.  He authorized the wife, as a matter of convenience, to issue checks on these accounts but, he contends, the money on deposit belonged exclusively to him.  In any case, the accounts were not held by the entireties, since either one could withdraw money from them.  Jones v. Hamilton, 211 Md. 371, 380 (1956); Brewer v. Bowersox, 92 Md. 567 (1901).
 
   We shall reverse the decree of 7 August 1970 because in our judgment the wife's right to an accounting, [***15] in the circumstances before us, could not have accrued until after she left the marital domicile on 14 January 1970. Nor can the husband, in these circumstances, be required to account for transactions which took place prior to 14 January 1970.  It seems to us that, upon remand, it might be expedient to consider this case concurrently with the divorce case to the end that all financial aspects of the [*342] differences between the parties can be reconsidered in light of the views expressed and suggested in this opinion, the alimony already established, and the additional considerations set forth in the revised decree.

   Decree reversed.

   Case remanded for further proceedings conformable with the views expressed in this opinion.

   Costs to be paid by the appellant. 

LEROY v. KIRK, Adm'r, d.b.n., c.t.a. of the Estate ofMillicent Desiree Leifson et al. 
No. 434, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 276; 277 A.2d 611; 1971 Md. LEXIS 926

 June  1, 1971, Decided

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

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  personal property, bequest, tangible personal property, intangible, testator, chattels, stock, real estate, maxim, ejusdem generis, true meaning, proceeds of sale, tangible, testatrix, died, gift, registered mail, pecuniary, certificates, wheresoever, survived, residue, situate, boat, all-inclusive, personalty, furniture, tangible property, noscitur a sociis, pecuniary legacy

COUNSEL: Richard S. Paulson and Richard A. Buddeke, with whom was H. Robert Venables on the[***3] brief, for appellant.

   Richard G. Anderson, with whom was Marvin I. Anderson on the brief, for The Society for the Prevention of Cruelty to Animals of Anne Arundel County, part of appellees.  Frank C. Serio, with whom were Serio, Hopper, Blumenthal & Carmody on the brief, for Anne Arundel General Hospital, other appellee.  No brief filed on behalf of other appellees.

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

OPINIONBY: HAMMOND

OPINION: [*278] [**612] Judges often have written that no will has a twin brother.  Here, on December 31, 1964, Gunnar Leifson and his wife, Millicent, executed wills drawn by the same scrivener which were primarily reciprocal and secondarily mutual.  Except for the interchange of positions to effect reciprocity and for the changes of gender, the wills are identical.  Her will directed that all death taxes be paid by the executor and charged as part of the expenses of administration.  "[A]ll of the rest, residue and remainder of [her] estate, of whatsoever kind and wheresoever situate" was devised and bequeathed to her husband if he survived her.  If he did not survive[***4] her, as turned out to be the case (he died in February 1968 and she the following Christmas morning), Mrs. Leifson made the following bequests:

   1. (Item IV of the Will) $5,000 to Eva Cederstrom of Copenhagen, if she is living at the testatrix's death;

   2. (Item V) "the sum of Ten Thousand Dollars ($10,000) and all of my personal property, including my automobile, boat and the contents of my house and outbuildings, unto MRS. BETTY JENSEN LEROY [the appellant] * * * if she survives me";

   3. (Item VI) $5,000 to WARDS (Welfare of Animals Used in Research in Drugs and Surgery);

   4. (Item VII) "* * * I direct my Executor to liquidate that portion of my estate remaining after payment of the bequests set forth in ITEMS IV, V, and VI above, and to distribute the resulting sum in equal shares to the ANNE ARUNDEL GENERAL HOSPITAL, Annapolis, Maryland, and the ANNE ARUNDEL COUNTY CHAPTER OF THE SOCIETY FOR THE PREVENTION OF [*279] CRUELTY TO ANIMALS [and] [i]n the event that either or both of the legatees in ITEMS IV and V above should predecease me, their bequests shall be made a part of the bequests set forth herein * * *."

   Mr. and Mrs. Leifson lived at Cumberstone in Anne Arundel[***5] County. Their home was owned as tenants by the entirety and their stocks were in joint names.  Her gross estate consisted of the proceeds of sale of the home property which she had contracted to sell less than a month before she died, $65,000; stocks in various corporations, $150,000; cash in banks, $44,000; and tangible personal property appraised at some $3,500.

   The present controversy is as to the true meaning of the bequest to Betty Jensen LeRoy.  Mrs. LeRoy contends that the bequest given by Item V of the will of "all my personal property" includes not only tangible but also intangible personal property and the beneficiaries under Item VII, the Anne Arundel General Hospital and the Animal Society, contend that Mrs. LeRoy was given $10,000 and the tangible personal property. If Mrs. LeRoy is right, she would get the entire net estate, since at the time of Mrs. Leifson's death she owned no real property, and the charities would get nothing.  (At the argument Mrs. LeRoy's lawyer said she renounced any claim to the $65,000 proceeds of sale of the home property, by what logic or process of reasoning we were not advised and are unable to perceive.)

   [**613] Judge Childs[***6] ruled that Mrs. LeRoy took but $10,000 and the tangible personal property, and we think he was right in so doing.

   In Marty v. First National Bank of Baltimore, 209 Md. 210, 216-217, we set out the aims and purposes of one who must construe a will and we will not reiterate them at length.  To divine the intention of a testator is the primary and paramount goal in the construction of his will.  The search is not for his presumed but for his expressed intention.  What must be sought is the true meaning of his words, not what he meant as distinguished from what his words express, "but simply what is the [*280] true meaning of his words; not merely what he meant, but what his words mean." Miller, Construction of Wills, § 10.  What the words express is to be interpreted according to their plain meaning and import.  This expressed intention must be gathered from the language of the entire will, particularly from the clause in dispute, read in the light of the surrounding circumstances when the will was made.

   The armchair background is not significant or particularly helpful here.  The Leifsons had no children.  Gunnar Leifson had two brothers who survived him. Millicent[***7] Leifson left surviving her no known relatives.  Eva Cederstrom of Copenhagen was a friend of the Leifsons, particularly of Millicent, who had been introduced to them by Commander and Mrs. LeRoy.  The LeRoys were friends of the Leifsons and each pair visited the other from time to time and occasionally took trips together.  Millicent Leifson was a dog lover and WARDS had treated one of her dogs for, apparently, a rare disease. Millicent Leifson had been a patient at the Anne Arundel General Hospital for a long stay.  Towards the close of her life she had a problem of equilibrium and had to be assisted in walking.  She did not drive a car.  Some two weeks before she died, the stock certificates worth $150,000 had been mailed to her at her home by registered mail by her lawyer after he had caused them to be transferred from the joint names of Gunnar and herself to her name.  One Edith Gross, who started to work for Mrs. Leifson in March 1968, took the registered mail envelope containing the stock certificates from the postman to Mrs. Leifson in March 1968, took the registered mail envelope of her job.  After the stocks came, Mrs. Leifson planned to be driven to the bank where she had[***8] a safe deposit box by Mrs. Gross but she never went because she became too sick and the certificates were in the house when she died.

   Mrs. LeRoy's approach is simple and direct.  She says that the language of Item V of the will is clear and unambiguous, [*281] is consistent with the will as a whole and admits of but one construction -- that Betty LeRoy was meant to be beneficiary of the intangible personal property -- the stock and cash -- owned by Millicent at her death.

   We find the approach to be too simplistic.  It is true that a bequest of "personal property" without more includes every form of personal property, tangible and intangible, from whatever source derived, that is everything except real estate. It is equally true, however, that the broad scope of the words "personal property" standing alone is limited by the rule that "if there be anything in any part of the will which restricts or qualifies the general term, the latter must be so restricted and qualified, if it can be done without violating some other principle of law or the manifest intention of the testator." Frick v. Frick, 82 Md. 218, 224. To the same effect is Miller, Construction of Wills, § 102. [***9] In 4 Bowe-Parker: Page on Wills, § 33.24, p. 334, the text reads:

   "Other provisions of the will may limit the meaning of 'personal property.' The context may show that the term is limited to tangible personal property, and that it is used as an equivalent to one meaning of 'goods and chattels.' * * *

   "It is said that the popular meaning of 'personal property' is tangible personal [**614] property, which is equivalent to one meaning of goods and chattels." (footnotes omitted)
 
The reference to the fact that often the popular meaning of "personal property" is tangible personal property is supported by the case of Cameron v. Frazer, 187 Md. 368, 373-374, a case which essentially is dispositive of the case before us.  Judge Markell for the Court there held:

   "But this testator did not use the words 'all my personal property' without any limiting context.  [*282] Frick v. Frick, 82 Md. 218, 222, 223, 33 A. 462. He said 'my home property located at Earleville, Maryland, including all furniture therein and other personal property located on the premises.' (Italics supplied.) These limiting words, like the horse, implements and other[***10] goods and chattels covered by them, are of the earth, earthy.  They suggest tangible property, goods and chattels, which have a 'local habitation,' not securities or other choses in action,' * * *.

   "This view is in accord with authorities in other jurisdictions.  All rules and generalizations are subject to exceptions when the will shows a contrary intent on the testator's part.  In most cases, however, the words 'personal property' are limited to tangible property or goods and chattels either (1) when the context makes the rule ejusdem generis applicable or (2) when description by location, e. g., the contents of a house, exclude choses in action, which have no location.  * * * It is, however, generally held that words such as 'furniture and other personal property,' when the rule ejusdem generis is applicable, or 'personal property located in my house,' do not include bonds or other securities or choses in action.  In Bryant v. Bryant, 129 Me. 251, 151 A. 429, 431, a bequest to a wife of 'my homestead place * * * and all of the household furniture and all other personal property belonging to me in the home' was held not to include Liberty Bonds.  The court remarked[***11] that the expression 'personal property' is 'ordinarily and popularly used' in the more restricted sense 'embracing only goods and chattels.'"

   Other cases that are in accord include In Re Graham's Estate (Traynor, J. for a unanimous Supreme Court of California in Bank), 316 P. 2d 945, 947; Blakeman v. [*283] Harwell (Ga.), 31 S.E.2d 50, 57; Equitable Trust Co. v. Clavey (Del.), 21 A. 2d 719, 721 (aff'd on opinion below, 28 A. 2d 309); In Re Horne's Estate (Dist. Ct. App. Fla.), 171 So. 2d 14.

   We see various indications in Mrs. Leifson's will that her words mean that the term "personal property" in Item V of her will included only tangible personal property. The will gave her husband if he survived her all of her estate "of whatsoever kind and wheresoever situate." Eight lines down she gives Betty LeRoy "all my personal property" but does not add "of whatsoever kind and wheresoever situate." The absence of these words would seem to indicate an intention to give less than an all-inclusive gift of personalty. Instead of following the words "all my personal property" with all-inclusive words, Mrs. Leifson said: "including my automobile, boat and the contents[***12] of my house and outbuildings," which clearly suggests that she used the words "personal property" as meaning tangible personal property. We think this is a case where specificity of example narrowed the generality of the term "personal property" under the maxim noscitur a sociis (of which the maxim ejusdem generis is an illustration) and that these maxims apply here as they did in Cameron v. Frazer, supra. The maxims mean that the meaning of a word is or may be known from the accompanying words so that, under the rules, general and specific words, capable of analogous meaning, when associated together, take color from each other, so that general words are [**615] restricted to a sense analogous to less general.  Black's Law Dictionary (4th Ed.) 1209.

   There are further supports in the will for finding a restricted gift of personalty. Debts, expenses and death taxes are directed to be paid from the residue. If it was intended that Mrs. LeRoy was to get all the intangible personal property as well as all the tangibles, the residue could have consisted only of the real estate, that is, the home property.  To pay the death taxes there would [*284] have had to[***13] have been one sale of the realty early in the administration of the estate and there could have been no other later sale of "that portion of my estate remaining after payment of the bequests * * *." One can only conclude that Mrs. Leifson foresaw that there would be a liquidation of estate assets after Betty LeRoy's bequests had been distributed to her.

   There are other similar signs on the face of the will that it did not contemplate that the residuary charities would receive only the proceeds of sale of real estate. Mrs. Leifson's bequest to Mrs. LeRoy was of "all my personal property," not, following as it did a pecuniary bequest to Eva Cederstrom and the $10,000 pecuniary bequest to Mrs. LeRoy, of "all my other personal property" or of "all my personal property remaining after payment of the bequests to Eva Cederstrom and Betty LeRoy." The use of either of these phrases would have suggested that Betty LeRoy was to get all the intangible personal property. What a testator does not say may be significant.  Dalrymple v. Gamble, 68 Md. 523, 529. What Mrs. Leifson does say after "all my personal property" is "including my automobile, boat and the contents * * *," which, as we[***14] have said, would seem to restrict the broader meaning of personal property to the lesser meaning of tangibles. There is significance, too, we think, that the $5,000 legacy to WARDS followed the gift of all personal property to Betty LeRoy.  If it had been intended that Mrs. LeRoy was to receive all the intangibles, the only source for the payment of the WARDS bequest would have been the proceeds of sale of real estate. It is difficult to conclude that the testatrix contemplated this, in view of the composition of her estate.

   There remains a final sign that Mrs. LeRoy was to receive in addition to $10,000 only tangible personal property. If she had been meant to receive all the intangibles, there would have been no need and no point in giving her the $10,000 bequest. In Andrews v. Schoppe, 24 Atl. 805, 808, the Supreme Judicial Court of Maine on analogous facts and language of the will followed an early English [*285] case, Rawlins v. Jennings, 13 Ves. Jun. 39, 33 English Reports 209, 211, and 1 Jarman, Wills, § 751, and held:

   "But basing our conclusion on other grounds, and taking the entire clause in which this bequest is made, it seems clear that the[***15] testatrix employed the expression, 'and all other articles of personal property in the house,' not in its broadest, legal signification, but in the limited sense of ejusdem generis.

   "Moreover, this construction is strongly enforced by the fact that a pecuniary legacy of $900 is given to this same niece in the very next clause of the will.  This circumstance of a pecuniary or specific legacy being given to the same or other parties has commonly been considered as favoring the construction adopted in this case.  * * * Here the succeeding clause in this will gives a pecuniary legacy, not only to this niece, but also to the brother and sister of the testatrix."
 
See also In Re Graham's Estate, supra at 947 of 316 P. 2d, for a similar view.

    Decree affirmed, with costs. 

HAYNES v. METROPOLITAN LIFE INSURANCE COMPANY 
No. 403, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 255; 277 A.2d 251; 1971 Md. LEXIS 923

 May  18, 1971, Decided

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

DISPOSITION: Judgment affirmed.  Costs to be paid by the appellant.

CORE TERMS:  proof of death, absentee, missing, presumption of death, disappearance, presumed, dead, summary judgment, premium, paying, decree, date of death, insurer, disappeared, Uniform Absent Persons' Act, common law, beneficiary, disputed fact, sergeant, insured, wait, Maryland Uniform Absent Persons' Act, life insurance policy, satisfactory proof, probative value, lapse of time, paid in full, prima facie, presentation, satisfactory

COUNSEL: [***2]

   Jan A. Obst for appellant.

   Alan N. Gamse, with whom was James D. Peacock on the brief, for appellee.

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

OPINIONBY: DIGGES

OPINION: [*256] [**251] On December 7, 1963, Sergeant James Lee Haynes disappeared without a trace.  He was on leave from active duty with the Army in Germany and had set out to hitchhike from his home in Baltimore to visit his parents in Maben, West Virginia.  The Army and state police, upon notification that he was missing, conducted an extensive investigation but unearthed not one iota of evidence indicating an accident, foul play, or a voluntary absence without leave from the Army or his wife, Theda R. Haynes, the appellant.

   [**252] Pursuant to Title 37 U.S.C., §§ 555-56 (Supp. V, 1965-69), the Secretary of the Army issued a Statement of Casualty, indicating the sergeant was presumed to be dead and setting the date of death as December 8, 1964, a year and a day from his disappearance. On December 17, 1964, the appellant presented the Army's finding to the appellee, the Metropolitan Life Insurance Company, in an attempt[***3] to collect on a life insurance policy it had issued to her husband, but the claim was denied on the grounds that proof of death was both insufficient and premature.  Following the company's advice, Mrs. Haynes continued paying premiums and eventually obtained a decree and finding of presumed death from the Circuit [*257] Court for Anne Arundel County in accordance with the Maryland Uniform Absent Persons' Act, Code (1957, 1966 Repl. Vol.), Art. 16, §§ 200-12, on December 20, 1968.  Upon presentation of this decree to the company, all unearned premiums were refunded and all sums possibly due under the policy, except for interest, were paid in full for a total of $14,392.35.  The present suit is for $3,725.83 interest the beneficiary claims has accrued on that sum from December 8, 1964 to March 31, 1969, the date of payment.

   On a motion for summary judgment the insurance company resisted this claim, asserting that no interest had accrued since it had paid in full when the proceeds of the policy were due, specifically, upon presentation of the decree and finding of death.  The Circuit Court for Anne Arundel County (Childs, J.) concurred in this reasoning and Mrs. Haynes has appealed. [***4] We shall affirm.

   The appellant's principal argument is that summary judgment should not have been granted as a matter of law because there was a dispute over a critical fact of the case, the date from which interest should run.  We frankly see little factual controversy here, but before addressing ourselves to that issue we shall discuss the contract and statutory provisions which bear on the general question of the insurance company's liability for interest in a case such as this.

   The contract provision which governs the outcome of the appellant's case is this brief and unobtrusive clause in the insurance policy:

   "The amount payable in the event of death of a person insured under this policy will be paid, upon receipt of due proof of such death." (Emphasis added.) 
 
Clauses similar to this have been construed to mean that interest on the proceeds of a life insurance policy should not begin to run from the date of death or loss but from the date when proceeds are due and payable, normally the date of furnishing proof of death. Crook v. N. Y. Life [*258] Ins. Co., 112 Md. 268, 75 A. 388 (1910); 3 Appleman, Insurance Law and Practice, § 1583 (rev. ed. [***5] 1967); 46 C.J.S. Insurance § 1391 (1946).  In a case where death can only be presumed by seven years' absence, it has been held that the insurance company is not liable for interest at least until the presumption, which is the only proof of death, has taken effect.  New York Life Ins. Co. v. Brame, 112 Miss. 828, 73 So. 806, 811 (1917) and 112 Miss. 859, 73 So. 812 (1917); 44 Am.Jur.2d, Insurance, § 1593 (1969).

   What constitutes "due proof" has been the subject of extensive judicial comment.  In Richardson v. Life Ins. Co., 162 Md. 292, 297, 159 A. 585 (1932), Chief Judge Bond, speaking for the Court, said:
 
"'It may be stated, however, as a general rule, in the absence of some policy or statutory requirement to the contrary, that sufficient proof of death is made by evidence in any form which is substantial and trustworthy enough to enable the insurer to form an intelligent estimate of his rights and liabilities under his contract.' 5 Joyce, Insurance, Sec. 3277; 7 Couch, Insurance, sec. 1516; Griffin v. Northwestern Mut. Co., 250 Mich. 185, 188, 229 N. W. 509."
 
[**253] The Municipal Court of Appeals for the District of Columbia has [***6]written:

   "According to the rule in the federal courts the 'due proof' called for in such policies is not, in the absence of express language, required to be in any particular form.  The purpose of the requirement is merely to give the insurer a reasonable opportunity to investigate and test the validity of the claim.  The proof need not be such as to satisfy the company of the existence of the disability, but need only be such as would, if reasonably established in court, make out a prima facie case requiring payment of the [*259] claim." National Life Ins. Co. v. White, 38 A. 2d 663 (1944).
 
Also see John Hancock Mutual Life Insurance Co. v. Highley, 445 P. 2d 241 (Okla. 1968) and Levine v. New York Ins. Co., 155 Misc. 806, 280 N.Y.S. 468, 472, aff'd mem., 246 App. Div. 703, 285 N.Y.S. 532 (1935).

   The statutes which bear on the legal effect of "receipt of due proof" in this case are Maryland Code, Art. 96 1/2, § 43 (1957, 1964 Repl. Vol.); the Uniform Absent Persons' Act, Code, (1957, 1966 Repl. Vol.), Art. 16, §§ 200-12 and Title 37 U.S.C. §§ 555-56.  Sections 555-56 are the descendants of the now defunct World War II "Missing Persons Act," which[***7] may still be found in Title 50, U.S.C.App. § 1005 (1964).  The two sections of the present statute, which must be read in tandem, relate only to members of the military services and require the appropriate Secretary or his designee to make a finding of death, "when he considers that the information received [concerning the disappearance], or a lapse of time without information, establishes a reasonable presumption that a member in a missing status is dead . . ." (emphasis added) § 556 (b). The Secretary is not required to find that the absentee is dead, for he can "direct a continuance of his missing status." § 555 (a) (1).  But if he does the date of death must be set at a year and a day after disappearance for the purpose of ending pay and allowances, settling accounts and paying death gratuities.  § 555 (b).  "Missing status" is not limited to a situation in which the person is reported missing in action.  § 551 (2) (A) and (B).

   The insurance company argues, citing In re Estate of Thornburg, 186 Ore. 570, 208 P. 2d 349, 352 (1949), that the effect of the Secretary's finding of presumed death should be limited to the administrative purposes for which it was designed, [***8] but we question the soundness of this contention or the breadth of the dicta in that case.  The only element of the Secretary's finding which is an arbitrary administrative act is the required setting of a convenient time to close the books on the absentee. We [*260] need not comment, however, on the finding's inherent value as evidence, for what respect it must be given in a non-federal proceeding has been regulated by state statutes.  This was the situation in the Thornburg case, where an Oregon statute accorded the finding "prima facie probative value in evidence." Also see Stone's Estate, 58 Pa. D. & C. 154, 161-62 (1946). And it is the situation in Maryland, where Art. 96 1/2, § 43, the second statute which concerns us in this case, provides:

   "A written finding of presumed death made by the Secretary of War, the Secretary of the Navy or other officer or employee of the United States authorized by the federal law to make such finding or a duly certified copy of such finding shall be received in any court, office or other place in this State as evidence of the death of the person therein disclosed to be dead and of the date, circumstances and place of his death[***9] or disappearance."
 
It should be noted that unlike the Oregon statute, Maryland's does not modify the term evidence with attributes such as "prima facie" or "probative value."

   The third statute affecting this insurance claim is Maryland's Uniform Absent [**254] Persons' Act. n1 The history of this Act and its many provisions have been fully described and elucidated in Note, 7 Md.L.Rev. 330, 335-39 (1943). Only a brief glance at the sections which govern this case are necessary here. The Act's most striking effect was to abolish in § 200 (1) the venerable common law presumption of death that attached when a person had been continuously absent and unheard of for seven years.  See 9 Wigmore on Evidence, § 2531b (1940) [*261] for a vitriolic criticism of this inflexible rule.  The act now provides that death is an issue of fact to be submitted to a court or jury upon the evidence.  Section 200 (2) gives this new freedom of inquiry teeth by providing that known exposure of the absent person to a "specific peril of death . . . shall be considered by the court; or if there be a jury, shall be sufficient evidence for submission to the jury." Section 202 provides[***10] for the appointment of a receiver to administer the property of the missing person regardless of the possibility of death but only upon a finding of disappearance and the necessity for administration.  Section 205 (1) provides that if at any time during this administration "satisfactory evidence of the absentee's death" is presented, "the court may make a final finding and decree that the absentee is dead . . . ." Even without a positive finding of death, § 205 (2) permits the court, among other things, to make a final distribution of the absentee's property five years after the finding that he has disappeared. With a finding of death or without one after five years of unexplained absence, the court may wind up the receivership (§ 207) and distribute the absentee's property (§ 208).  At this time § 209 (1) authorizes the court to "direct the payment to the beneficiaries of any sums due and unpaid under any policies of insurance upon the life of the absentee, if the claim is uncontested.  . . ." Section 209 (2) provides "[i]f the claim is contested, the court shall take jurisdiction of the action and shall submit to a jury, if one be called for, the issue of death of the insured[***11] and any other issues arising under the policy." Section 209 (4) allows the beneficiary to demand the cash surrender value, if any, of the policy when the claim is contested and death cannot be established.  We must now attempt to make sense of the intricate interplay between these statutes and their effect on the facts of this case.

n1 The precise "short" title of this Act, as provided in § 212, is the "Uniform Absence as Evidence of Death and Absentees' Property Act," which is reproduced with minor variations in 9 Uniform Laws Annotated, 5-12, §§ 1-16 (1957).  This law was first approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1939, but it has only been adopted in Maryland, Tennessee and Wisconsin.

 
   When Mrs. Haynes first presented proof of her claim to Metropolitan, the company rejected it on the grounds that 1) there was no actual evidence of death, and 2) there was no actual basis for the Army's finding of a [*262] presumption of death, which[***12] in any event was designed largely for administrative purposes.  The company at that time recommended that Mrs. Haynes continue premium payments, which she did, and that if and when the claim was honored they would refund any unearned premiums from the date of presumed death as established by the Army.  The underlying basis of its refusal to pay was revealed in a letter, filed as an exhibit with the motion for summary judgment, in which the company stated:

   "We made an extensive investigation into the circumstances regarding this claim at that time [1964-65] and could find no actual evidence of the death of the insured, nor could we find a basis for presumption of death. The Army regulation was drafted to provide a Declaration of Death for administration of Government insurance and Government pay purposes.  Normally, the Company would accept such a declaration as evidence of death if the insured disappeared while known to be engaged in combat with the enemy, or was located in proximity to [**255]an enemy body of men.  However, these circumstances did not prevail in the case of James Haynes.  All facts considered, we did not feel there was a basis for allowing either a death[***13] claim or a disappearance claim."
 
This letter also made note of Mrs. Haynes' partial reliance at the time of the initial claim on the report of a number of bizarre murders in the area in which her husband disappeared, but there is no indication that this vague suggestion was relied upon, then or later, as possible evidence of an "exposure to a specific peril of death."

   Looking at the case as it must have appeared to the parties at that time we think the insurance company's hesitation in paying the policy was not entirely unreasonable.  Its reliance on the "administrative purpose only" argument in regard to the Army's report was the weakest reason for not honoring the claim, but the shortness [*263] of the time of the absence, coupled with the completely negative results of extensive investigations into Sergeant Haynes' fate gave the insurer a strong reason to pause.  Mrs. Haynes, on the other hand, was in possession of the Army's finding of death, which was admissible in evidence under Art. 96 1/2, § 43 and which, in spite of the short lapse of time, might have warranted a finding of death under §§ 205 or 208 of the Uniform Absent Persons' Act or, for that matter, in[***14] a direct suit on the policy.  If what might have happened could be a disputed material fact in the present motion for summary judgment, we believe a far different case on the question of interest would now be presented.  But this is not what happened.

   By her own actions, Mrs. Haynes acquiesced in the insurance company's debatable conclusion that the Army's finding of death was not substantial or trustworthy enough to constitute due proof.  It is not disputed that she followed its suggestion, first, to continue paying refundable premiums until the claim ripened with a significant passage of time and, later, to utilize the Uniform Absent Persons' Act to secure an acceptable form of due proof of death. From her actions we can only conclude that the procedure followed here reflected a tacit if not open understanding between the claimant and the insurance company.  Having chosen to wait four additional years to secure more substantial proof of her husband's death, she cannot now renounce the consequences of her actions.

   Although the common law seven year presumption of death was involved in New York Life Ins Co. v. Brame, supra, we think that the appellant before us was caught in[***15] the same awkward position as the putative Widow Brame.
 
"Either she could accept the statement of the company that the proof of death was not satisfactory and try and strengthen the same, or she could have insisted that it was satisfactory and that the company absolutely refuse to accept [*264]her proof of death, and, if finally refused, then she could have instituted suit, in which event the burden of proof would have rested upon the plaintiff to prove the fact of the death of her husband, or her other course, and the one which she pursued, was to wait either until she could make more satisfactory proof of death or until the expiration of seven years when she could rely upon the common-law presumption of death which arises when one has been absent from his home without being heard of for seven years." 73 So. at 809.
 
Mrs. Haynes did not have to wait for seven years and her position on proof was somewhat improved by the statutory admissibility of the Army's finding of death, but like Mrs. Brame
 
"[s]he was unwilling to bring the matter of collecting this policy to an issue with the insurance company before the expiration of this period.  She therefore did[***16] not insist upon the company finally approving or rejecting her proof of death until this time." Id. 810.
 
[**256] Similarly, the insurance company in that case had only promised to pay the proceeds of the policy after it had received some satisfactory proof of death and the court concluded that it could not be liable for interest on the proceeds until the company had refused to accept the common law presumption of death as such proof.

   The Maryland Uniform Absent Persons' Act has opened more options for those left behind by the missing. Having chosen one option, we do not think the appellant can make a disputed fact of an option she did not take.  As we recently noted in Kirsner v. Fleischmann, 261 Md. 164, 172-73, 274 A. 2d 339 (1971), a disputed fact which has no bearing on the outcome of a case will not prevent the award of summary judgment.

   Judgment affirmed.  Costs to be paid by the appellant. 

FRAZIER et al. v. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD 
No. 387, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 115; 277 A.2d 57; 1971 Md. LEXIS 913

 May  12, 1971, Decided

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

DISPOSITION: Order reversed, case remanded for entry of an order permitting appellants to bring an action against the Unsatisfied Claim and Judgment Fund Board; costs to be paid by appellee.

CORE TERMS:  insured, Judgment Fund Law, motor vehicle, ownership, firecracker, unidentified, automobile insurance policy, intentional injury, personal injury, rear seat, driver, Criminal Injuries Compensation Act, direct and proximate cause, coverage provided, order permitting, coverage, innocent, thrown, passenger

COUNSEL: Emily M. Rody and Robert S. Rody for appellants.

   H. George Meredith, Jr., and William E. Brannan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Hymes, Keyes & Simmons on the brief, for appellee.

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

OPINIONBY: SINGLEY

OPINION: [*116] [**58] At about 9:45 on the evening of 4 July 1969, Kevin Frazier, then five years of age, was a passenger in the rear seat of an [***3]open Chevrolet convertible which was being driven by his mother, Cassandra Frazier, in a northerly direction on Jumper's Hole Road, in Anne Arundel County.  According to Mrs. Frazier, an unidentified light blue car, going in the opposite direction, passed her and as it did, the driver of the car threw a lighted firecracker or cherry bomb into the rear seat of her car. Distracted by the explosion and by Kevin's cries, Mrs. Frazier lost control of her car and hit a tree.  Both she and Kevin were injured.  Pieces of a firecracker were later found near a scorched spot on the upholstery of the rear seat.
 
   Kevin, Mrs. Frazier and Mr. Frazier filed petitions in the Circuit Court for Anne Arundel County, in which they sought leave to sue the Unsatisfied Claim and Judgment Fund Board (the Board).  From an order denying their petition, they have appealed.  The court below found as a fact that the petitioners had made the reasonable [*117] efforts required by the Unsatisfied Claim and Judgment Fund Law, Code (1957, 1970 Repl. Vol.) Art. 66 1/2, subtitle 7, part VI (the Act), § 7-620 (5) to ascertain the identity and driver of the unidentified vehicle, see Johnson v. Unsatisfied Claim [***4]  & Judgment Fund Board, 262 Md. 90, 277 A. 2d 5 (1971), but concluded, as a matter of law, that the injuries sustained did not arise out of the ownership, maintenance and use of the unidentified car.

   The Act, § 7-620 provides:

   "When the death of, or personal injury to, any person arises out of the ownership, maintenance or use of a motor vehicle in this State * * * but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained * * * any qualified person who would have a cause of action against the operator or owner, or both, in respect to the death or personal injury * * * may * * * apply to a court of competent jurisdiction for an order permitting him to bring an action therefor against the Board * * *."

   The question, of course, is whether the Fraziers' injuries arose "out of the ownership, maintenance or use of a motor vehicle." The same phrase is frequently encountered in automobile insurance policies, and the Board rests its hopes on McDonald v. Great American Ins. Co., 224 F. Supp. 369 (R. I. 1963) and Speziale v. Kohnke, 194 So. 2d 485, writ refused, 250 La. 469, 196 So. 2d 534 (1967), both of which involved injuries sustained[***5] when firecrackers were thrown from automobiles, and both of which concluded that no coverage was afforded by the automobile insurance policy. Compare, Richland Knox Mut. Ins. Co. v. Kallen, 376 Fed. 2d 360 (6th Cir. 1967) where recovery was permitted [**59]under a homeowner's policy for injuries resulting from an unsuccessful attempt by a passenger to throw a firecracker out of [*118] the car window. 8 Blashfield, Automobile Law & Practice § 317.1 at 5-6 (Lewis ed. 1966); 7 Appleman, Insurance Law & Practice § 4317 at 144-6 (1942) and an Annotation, 89 A.L.R.2d 150 would seem to support the proposition that whether an injury is or is not within the coverage provided by an automobile insurance policy may well turn on the question whether the use of an automobile is directly or merely incidentally causally connected with the injury, even though the automobile itself may not have proximately caused the injury.  Compare, for example, National Indemnity Co. v. Ewing, 235 Md. 145, 200 A. 2d 680 (1964) (recovery allowed plaintiff, who fell from insured's car, and was injured while being escorted back to car on foot) and Mullen v. Hartford Accident & Indemnity [***6] Co., 287 Mass. 262, 191 N. E. 394 (1934) (injury sustained from slipping on oil leaking from car held to be within provisions of policy) with Commercial Union Ins. Co. of New York v. Hall, 246 F. Supp. 64 (E.D. S.C. 1965) (no liability to plaintiff, whose way was blocked by insured's car and was then assaulted by insured) and Kraus v. Allstate Ins. Co., 258 F. Supp. 407 (W.D. Pa. 1966), aff'd 379 F. 2d 443 (3d Cir. 1967) (insurer not liable to pedestrians when insured detonated dynamite in his car).

   We are reluctant to accept the notion that the gloss of judicial interpretation which may surround the provisions of the standard automobile insurance policy should necessarily be controlling in cases under our Unsatisfied Claim and Judgment Fund Law. We have noted that the Act is remedial in character, Maddy v. Jones, 230 Md. 172, 179, 186 A. 2d 482 (1962) and must be liberally construed, and while due regard must be given to the protection of the Fund, Wheeler v. Unsatisfied Claim & Judgment Fund, 259 Md. 232, 239, 269 A. 2d 593 (1970); Hawks v. Gottschall, 241 Md. 147, 215 A. 2d 745 (1966), in the interest of protecting the innocent victims whom the Act was[***7] intended to benefit, we are disposed to consider, but not necessarily to be bound by, decisions involving [*119] the interpretation of insurance contracts.  We conclude that for purposes of determining whether leave to sue the Board should have been granted, the injuries under the facts of this case did arise out of the ownership, operation or use of an unidentified motor vehicle.

   In two recent cases, State Farm Mut. Auto. Ins. Co. v. Treas, 254 Md. 615, 255 A. 2d 296 (1969) and Glens Falls Ins. Co. v. American Oil Co., 254 Md. 120, 254 A. 2d 658 (1969) we have been called on to decide whether an intentional injury by automobile, to a person, in the first case, or damage to property, in the second, comes within the policy language "caused by accident" and concluded that they did not.  A logical consequence of the result reached in the first of these cases is that the unsuccessful claimant might have had a claim against the Fund, which does not bar recovery for intentional injury. The Board argues that in the case of an intentional personal injury, the responsible agency may now be the Criminal Injuries Compensation Board, established by Chapter 455 of the Laws of 1968, [***8] now Code (1957, 1966 Repl. Vol., 1970 Cum. Supp.) Art. 26A. The Criminal Injuries Compensation Act provides for financial assistance to the innocent victims of crime.  That Act, in § 2 (c) defines a crime, and continues, 
 
"* * * provided, however, that no act involving the operation of a motor vehicle which results in injury shall constitute a crime for the purpose of this article unless the injuries were intentionally inflicted through the use of a vehicle."
 
Without deciding the question, and for the purpose of this opinion we need not, it would appear that what may have been contemplated by § 2 (c) was the situation in Treas, where the insured, who was the driver of the car which struck Mrs. Dawson in 1966, entered a plea of guilty to a charge of common law manslaughter.  This [**60] was a case where the automobile was the direct and proximate cause of the injury, and coverage would have [*120] been available under the insurance policy except for the fact that the injury was both intentional and foreseeable.

   Order reversed, case remanded for entry of an order permitting appellants to bring an action against the Unsatisfied Claim and Judgment Fund [***9] Board; costs to be paid by appellee. 

LAMPRECHT etc. v. PIPER AIRCRAFT CORPORATION 
No. 404, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 126; 277 A.2d 272; 1971 Md. LEXIS 915

 May  12, 1971, Decided

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

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

CORE TERMS:  distributor, advertising, resident, dealer, plane, course of conduct, persistent, solicit, regularly, personal jurisdiction, manufactured, solicitation, consumed, long arm, tortious, food, mail, correspondence, purposefully, manufacturer, soliciting, foreigner, impressed, legislative purpose, answering, pamphlet, magazines, omission, factory, resold

COUNSEL: B. Ford Davis, with whom were Wilbur D. Preston, Jr., and Whiteford, Taylor, Preston, Trimble & Johnston and George C. Evering on the brief, for appellant.

   Charles E. Iliff, Jr., with whom were John H. Mudd and Semmes, Bowen & Semmes on the brief, for appellee.

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

OPINIONBY: [***3]

   HAMMOND

OPINION: [*127] [**273] In 1969 Jerome Lamprecht, who had bought a Comanche airplane manufactured by Piper Aircraft Corporation (Piper) from Friendship Flying Service, Inc. (Friendship), sued both corporations in the Circuit Court for Anne Arundel County to recover damages suffered when he made a forced landing in Maryland, alleging negligence and breach of warranties as to a defective muffler system that brought about the crash.  The question at issue is whether Piper, a Pennsylvania corporation, can be brought into the Maryland Court under the long arm statute.  Judge Childs held that it could not.
 
   Lamprecht is an individual who resides in Maryland.  Piper has its principal place of business in Lock Haven, Pennsylvania.  It manufactures planes in Lock Haven and in Vero Beach, Florida.  It uniformly sells the planes it makes to independent distributors, who in turn sell through dealers such as Friendship. The distributor for Maryland dealers is located in Manassas, Virginia.  Transfer takes place at the factory with the distributor taking possession on a "fly away factory" basis.

   Lamprecht stresses that Piper uses regularly a national advertising campaign in magazines[***4] such as Business Week and Time to promote the sale of Piper aircraft and the use of flight training courses to be given at [*128] a Piper Flight Center (local dealers).  If a Maryland resident writes Piper in response to a sales advertisement, he is sent price lists, pamphlets describing various Piper models, and "Piper user reports" stressing the worth, virtue and desirability of Piper planes, and a letter signed by Piper's Director of Domestic Sales telling the Maryland inquirer that he will be contacted by "our representative in your area." If a Maryland resident writes Piper about flying lessons, he is sent a certificate worth $5 towards the regular price for lessons, a booklet on the possibility of purchasing a plane in partnership with others, a pamphlet advertising a particular plane, and a letter from the sales director saying that "Your nearest Piper Flight Center will contact you * * *." Piper sends what it calls "a [Maryland] Prospect Reference Form" to the Virginia distributor which must be returned promptly to Piper.  Piper regularly corresponds with Maryland owners and operators of Piper planes with regard to proper maintenance and service.  Piper says[***5] Friendship routinely [**274]purchases Piper planes from the Virginia distributor.

   Piper stresses these considerations: it has not qualified to do business in Maryland, it has no resident agent here, it does not itself sell or deliver to anyone in Maryland, and derives no direct revenue from any transaction in Maryland.  Although the national advertising and the subsequent mail advertising contemplate contact between a prospective purchaser and a dealer in Maryland, Piper does not itself contact or deal with the Maryland dealer. Dealers are established by the distributors. No part of any communication from Piper, either to the prospect or the distributor suggests or solicits any order or other transaction between the Maryland resident and Piper.  Although Piper sends service and maintenance bulletins to Maryland owners and operators, there is no evidence that any servant of Piper ever engages in any activity within Maryland or, indeed, has ever entered Maryland.

   [*129] Code (1969 Repl. Vol.), Art. 75, § 96 (a), as it read in 1969 in the parts here pertinent, provided that:

   "A court may exercise personal jurisdiction over a person, who acts directly or by an agent, [***6] as to a cause of action arising from the person's

   * * *

   "(4) Causing tortious injury in this State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in this State or derives substantial revenue from food or services used or consumed in this State * * *."

    By Ch. 540 of the Laws of 1970, effective July 1, 1970, the Legislature added to "food and services" as producers of substantial revenue "goods" and "manufactured products" so that the clause read: "or derives substantial revenue from goods, food, services or manufactured products used or consumed in this State." Both sides agree that the law as it stood in 1969 is what is now before us and that under that law, if Piper is to be subject to in personam jurisdiction for its act or omission outside Maryland that caused tortious injury in Maryland, it must regularly do or solicit business or engage in any other persistent course of conduct in the State.

   Lamprecht urges earnestly that Piper both solicits business and engages in a persistent course of action in this State.  He relies on the statement of Professor Auerbach in his article "The 'Long Arm' [***7] Comes to Maryland," 26 Md.L.Rev. 13, 43 (quoted by us in Vitro Electronics v. Milgray, 255 Md. 498, 505-506), in which in reference to soliciting business or engaging in any other persistent course of conduct in the State the author says:
 
"Decisions which provide the authority for this formulation include such patterns of conduct as direct solicitation by sales representatives in the state, the sending of price lists to customers [*130] through the mails, general mail advertising combined with advertising in periodicals circulated in the state, participation with the locally franchised dealer in promoting sales, and the presence in the state of service and maintenance representatives." (footnotes omitted)

   Piper in reply says that the soliciting contemplated by the statute is personal solicitation of business for the solicitor and that advertising in magazines that will be read by some Maryland residents and answering letters of inquiry is not personal solicitation so as to produce business for the dealers. It says further -- and similarly -- that correspondence with Maryland residents is not a course of conduct in Maryland at all.  It confesses and avoids Professor[***8] Auerbach's statement by saying that the cases therein relied on involved some personal activity such as that found in Novack v. National Hot Rod Association, 247 Md. 350, in which the foreigner regularly sent inspectors into Maryland, [**275] and Harris v. Arlen Properties, 256 Md. 185, where agents of the foreigner scouted for Maryland property, filed for permits (and so invoked the benefit of Maryland law) and transacted other matters in Maryland.

   The application of the long arm statute to a particular situation entails dual considerations -- first, that of statutory construction and second, that of constitutionality.  We have held the legislative purpose, to a great degree, was the expansion of judicial jurisdiction up to but not beyond the outermost limits permitted in this area by the due process decisions of the Supreme Court.  See Harris v. Arlen Properties, supra at pages 195 and 196 of 256 Md. and cases cited.  Therefore, consideration of the constitutional question in each case is essential not only for its own purpose but also as a significant factor in the interpretation of the statute.

   We are not impressed with Piper's argument that its advertising and[***9] its correspondence were not directed or [*131] related to sales by it to Maryland people.  We are impressed with the answer to a similar argument given by the Supreme Court of California (in Bank) in Buckeye Boiler Company v. Sup. Ct. of Los Angeles County, 458 P. 2d 57, 64, when it said:

    "A manufacturer whose products pass through the hands of one or more middlemen before reaching their ultimate users cannot disclaim responsibility for the total distribution pattern of the products.  If the manufacturer sells its products in circumstances such that it knows or should reasonably anticipate that they will ultimately be resold in a particular state, it should be held to have purposefully availed itself of the market for its products in that state. * * * in Regie Nationale Des Usines Renault v. Superior Court, 208 Cal. App. 2d 702, 703, 25 Cal. Rptr. 530, 531, the court refused to exempt the defendant, a French corporation, from jurisdiction in a suit apparently for personal injuries although the defendant did not sell its cars directly in California but rather 'inaugurate[d] a flow of its products to * * * California' through a 'Chain of sales' involving a wholly-owned[***10] American subsidiary and independently-owned distributorships and dealerships.  The court held that the indirect manner in which the defendant dealt with California consumers 'effect[s] little, if any, alteration in the jurisdictional situation.'"

   We tend to the view that Piper did solicit business and engage in a persistent course of conduct in Maryland, but we harbor a lingering doubt that the quality and nature of its activities make it constitutionally fair to subject it to jurisdiction.  To use the phrase used by the Supreme Court in Hanson v. Denckla, 357 U.S. 235, 253, 2 L.Ed.2d 1283, 1298, we ask ourselves whether Piper's activities [*132] consist of "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws," and we are not certain of the answer.

   We see as the answer to the problem a remand of the case, permissible under Gilliam v. Moog Industries, 239 Md. 107, 113, for a determination of whether under the law, as it was amended in 1970 and now stands, Piper "derives substantial revenue from * * * manufactured products used * * * in this [***11]State." This is a test which can raise little if any constitutional problems and one the answer to which in each case can be determined with relative ease and simplicity.  Professor Auerbach, op. cit., says at p. 43:
 
"Sufficient contact exists according to the Maryland statute if the defendant 'derives substantial revenue from [products] used or consumed in this state.' A defendant who neither makes solicitations nor engages in any other form of [**276]activity in Maryland might still be subject to Maryland jurisdiction, even though his negligence occurred outside the state and the injury-causing item is brought into the state by an independent distributor. There would be jurisdiction over such a defendant if he earns substantial revenue from the sales of his product in Maryland.  What is 'substantial' would depend upon the facts of each case."
 
See on the point of substantiality of revenue Buckeye Boiler Company v. Sup. Ct. of Los Angeles County, supra, and Stewart v. Bus and Car Co., 293 F. Supp. 577 (N.D. Ohio).

   We point out that under § 96 a (4) a defendant is amenable to personal jurisdiction if it solicits business or engages in other persistent[***12] course of conduct or derives substantial revenues from its products used or consumed [*133] in Maryland.  Gratification of any one of the three tests is sufficient.

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

JOHNSON et al. v. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD 
No. 420, September Term, 1970
 
Court of Appeals of Maryland
 
262 Md. 90; 277 A.2d 5; 1971 Md. LEXIS 910

 May  11, 1971, Decided

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

DISPOSITION: Order reversed; costs to be paid by appellee.

CORE TERMS:  claimant, motor vehicle, bus, Judgment Fund Law, driver, alert, unidentified, passengers, scene, investigative, remedial legislation, failure to comply, tortfeasor, broadcast, interviewed, northbound, collision, struck, minutes

COUNSEL: James R. White, with whom were Joseph L. Cymek and Harvey S. Levin on the brief, for appellants.

   David J. McDonnell, with whom were Allen, Thieblot & Alexander, Francis B. Burch, Attorney General, and William E. Brannan, Assistant Attorney General, on the brief, for appellee.

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

OPINIONBY: SINGLEY

OPINION: [*91] [**6] As is the case in most instances where remedial legislation has been enacted, Maryland's Unsatisfied Claim and Judgment Fund Law, Code (1957, 1970 Repl. Vol.) Art. 66 1/2, subtitle 7, part VI (the Act) has given rise to a spate of litigation dealing with the question whether the requirements of § 7-620 of the Act, "'Hit-and-run' cases generally" have been met, Weber v. Unsatisfied Claim & Judgment Fund Board, 261 Md. 457, 276 A. 2d 86 (1971); Jones v. Unsatisfied Claim & Judgment Fund Board, 261 Md. 62, 273 A. 2d 418 (1971); Grady v. Unsatisfied Claim & Judgment [***3]  Fund Board, 259 Md. 501, 270 A. 2d 482 (1970); Hickman v. Unsatisfied Claim & Judgment Fund Board, 255 Md. 267, 257 A. 2d 426 (1969). While these controversies have been disposed of on a case-by-case basis, the semblance of a rule has commenced to emerge.

    Among the conditions which must be met in order for a person injured by an unidentified motor vehicle and operator to obtain an order of a court of competent jurisdiction permitting him to bring an action against the Unsatisfied Claim and Judgment Fund Board is that imposed by § 7-620 (5) which requires that the court be satisfied that

   "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 motor vehicle and the owner and operator thereof cannot be established, [*92]or that the identity of the operator, who was operating the motor vehicle without the owner's consent, cannot be established."

   We recognized the reason for the conditions imposed by the Act in Rosenberg v. Manager of Unsatisfied Claim & Judgment Fund Board, 260 Md. 164, 271 A. 2d 692 (1970):

   "Although we have on a number of occasions recognized[***4] that the Unsatisfied Claim and Judgment Fund law is remedial legislation which should be construed liberally in order to effectuate its beneficial purpose, we have also made it abundantly clear that this constitutes no basis for failure to comply with the express terms and conditions of the act designed by the legislature for the protection of the fund against fraud and abuse." 260 Md. at 168.

   [**7] In the case before us, the appellants, Johnson and Cain, were passengers in a bus owned by B and A Charter Bus Service, which was northbound on Maryland Route 3, a divided highway, in the early morning of 18 May 1969. The bus was struck by a car which was headed south in the northbound lane of Route 3.  The bus had swerved to the left onto the grass median strip, but despite this evasive action, was struck on the right side by the southbound car, which left the scene before anyone could obtain the license number, although there was a suggestion that it was pursued by an unidentified motorist.

   Within nine minutes, Officer Dodge, of the Anne Arundel County Police Department, arrived at the scene; interviewed the bus driver and some of the passengers; obtained a description of the[***5] car which had collided with the bus, and had broadcast an "all points" alert on the police radio.

   The appellants Johnson and Cain, both passengers on the bus, who had sustained injuries in the collision, petitioned [*93] the Circuit Court for Anne Arundel County for leave to sue the Fund.  From an order denying their petition on the ground that they failed to make the reasonable efforts required by the Act, they have appealed.  We propose to reverse the order.

   This case is clearly distinguishable from Grady and Hickman, both supra, in which injured claimants were denied permission to sue the Board.  In Grady, the claimant relied on what we characterized as a "pro forma negative police report" which he had never seen, and neglected to inquire whether the police had conducted an investigation.  In Hickman, the claimant contended that he had been forced off the road by an unidentified vehicle, but failed to communicate this circumstance to the police.  In both cases we declined to equate a total absence of action with the Act's requirement that all reasonable efforts be expended.

   On the other hand, in Jones, supra, we decided that the claimant should have [***6]been permitted to sue the Board.  The driver of the car which had injured Jones took him to the hospital emergency room, but disappeared without giving a statement to the hospital authorities, or identifying himself to Jones. Jones reported the incident to the police sometime between one and three days after the accident.  His attorney interviewed the personnel and checked the files of the hospital, and when this proved unproductive, inserted two advertisements in a local newspaper.  In holding that this met the statutory test of all reasonable efforts, Judge Digges, speaking for the Court, said:

   "We think it fair to say that, at a minimum, vigorous good faith efforts are required to identify the tortfeasor, the same efforts one would expect an injured party to exert if he knew there would be no recovery unless he actually located the driver. In ruling on investigative efforts the trial judge must exercise discriminating judgment, giving due regard to such variable [*94] and interrelated factors as credibility, practicality, the law of diminishing returns, a sensible balancing of the anticipated amount of recovery against the cost of particular modes of inquiry, access to[***7] investigative resources, the fresh pursuit of promising clues, and, in the long run, the claimant's application of good common horse sense." 261 Md. at 76-77.

   The case before us is wholly unlike Grady and Hickman, where inactivity was the order of the day, and more comparable to Jones, where efforts were made, but without success.  Here, there was an abundance of witnesses who saw the collision. The police were at the scene within minutes of the accident.  The alert which was broadcast was an effort far beyond the claimants' capabilities. There was nothing further that they could do, and no subsequent follow-up would have helped.  In the context of the Act, there were no other "reasonable efforts" which they could have [**8] undertaken to establish "the identity of the motor vehicle and the owner and operator thereof."

   Order reversed; costs to be paid by appellee. 

PORT WARDENS OF ANNAPOLIS et al. v. MARYLAND CAPITAL YACHTCLUB 
No. 289, September Term, 1970
 
Court of Appeals of Maryland
 
261 Md. 48; 273 A.2d 102; 1971 Md. LEXIS 1055; 2 ERC (BNA)1215

 February  9, 1971, Decided

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

DISPOSITION: Decree of July 20, 1970, affirmed, the appellants to pay the costs. 

CORE TERMS:  aldermen, navigation, confined, bulkhead, boat, feet, hearing de novo, pier, administrative body, foot, sail, proposed construction, zoning, decree, de novo, constructed, ordinances, channel, impede, legally sufficient, capricious, Administrative Law, municipal, sailing, wharves, port, breakwater, distance, cruiser, dredge

COUNSEL: Eugene M. Lerner, City Attorney, for appellants.

   C. Edward Hartman, II, with whom were Hartman & Crain on the brief, for appellee.

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

OPINIONBY: BARNES

OPINION: [*49] [**103] This appeal involves an application by the appellee, Maryland Capital Yacht Club, a non-profit corporation of the State of Maryland, plaintiff below (Yacht Club), to erect a[***3] bulkhead, piers, breakwater, pilings and related structures and to dredge and fill, in the Severn River, in Annapolis, contiguous to its property.  The Port Wardens of Annapolis, one of the appellants and one of the defendants below, after a hearing, denied a portion of the application for 100 slips, limiting the number to 56 slips.  On appeal to the Mayor and Aldermen of Annapolis, the other appellant and defendant below, after a hearing at which, in addition to the record before the Port Wardens, additional evidence was introduced, the decision of the Port Wardens was affirmed.  The Yacht Club then filed a bill of complaint in the Circuit Court for Anne Arundel County, in equity, for a declaration that the resolutions of the Port Wardens and the Mayor and Aldermen were null and void; that the Port Wardens grant the full application of the Yacht Club; and, that the Mayor and Aldermen issue the building permit in accordance with the application.  The Chancellor, Judge Childs, filed a written opinion and by a decree of July 20, 1970, granted the relief prayed for in the bill of complaint.  A timely appeal was taken from this decree.

   Two principal questions are presented to us:

   [*50] [***4] 1. Was there sufficient evidence before the Port Wardens to support the denial of the portion of the application for the 44 slip area?

   2. Was the proceeding before the Mayor and Aldermen an appeal confined to the record of proceedings before the Port Wardens or was it a hearing de novo?

   The Yacht Club owns a tract of land in Annapolis in the Eastport area.  It is bounded generally on the north by Murphy Street, on the west by First Street, on the south by Chesapeake Avenue and on the east by the Severn River.

   On December 10, 1968, the Yacht Club filed its application to construct a bulkhead across the 345 foot water frontage of its land, consisting of approximately two and one-half acres and bounded as already set forth.  The application also asked permission to dredge material in front of that bulkhead, to fill behind it and then to construct 100 boat slips in the dredged area to be protected by a breakwater. It was further proposed to dredge an access channel, 60 feet wide and 6 feet deep, from the slip area to the natural six foot deep water approximately 600 feet away.

   The existing bulkhead extends into the Severn River from the end of Chesapeake Avenue, a distance of 180[***5] feet. The new proposed bulkhead would be erected toward the river from the end of Murphy Street 265 feet to intersect the 345 foot section.  Outboard of the 345 foot bulkhead, there would be two mooring slip areas enclosed on the east and on the south by timber breakwaters. The inboard slip area was designed for 56 slips; the outboard area was to accommodate 44 slips -- a total of 100 slips, as we have indicated. Inasmuch as the existing depth of water in the immediate vicinity would limit navigation to boats drawing only a few inches of water, it was proposed that the 60 foot channel be dredged to the one fathom line of the Severn River.

   The piers would extend 251 feet out from the bulkhead and the entire project, including the filled area and piers, [*51] would extend 300 feet from the shore line at the Chesapeake Avenue edge of the subject property and 250 feet from the end of the existing jetty.  It would be 1040 feet from the nearest channel as delineated by the Army Engineers and 3150 feet from the Severn River Channel.

   The materials to be used for this construction were to be pressure-creosoted wood secured with mild steel galvanized bolts and guys.  No question has [***6]been [**104] raised in regard to the designs, the method of dredging or the fill material.

   (1)

    A hearing on the Yacht Club application was held by the Port Wardens on November 20, 1969.  After a full presentation by the Yacht Club of the details in regard to the project involved in its application, including testimony in regard to its location, the dimensions, the design, type of materials to be used and other relevant data, as well as evidence indicating that the proposal would not render navigation in the port of Annapolis too close and confined, only two witnesses testified in opposition to the granting of the application.  One of these witnesses, Mrs. Parker Fairlamb, who resides at No. 1 Severn Avenue -- between Murphy Street and Severn Avenue, near the subject property, and who, with her husband, owns two of the three houses between the two streets -- stated that her principal concerns were (1) possible erosion resulting from the erection of the proposed bulkhead and (2) the possibility that the proposed construction would act as a "trap for refuse." When asked by one of the Port Wardens whether the proposed construction would impede her navigation, she replied:

   "I[***7] don't think so.  If I had a boat, I would go straight out.  What it would impede is all the fishing and crabbing that goes on there."
 
The other witness, Commander Horn, when asked by the same Port Warden whether the Commander thought that the pier extension would impede navigation in any way, replied:

   [*52] "Well, I can't see that it would conflict with navigation. The statement has been made that the water is not navigable.  Then how can you interfere with navigation if the water is not navigable."

   The Port Wardens did not decide the case before them on the day of the hearing, but reassembled on Monday evening, November 24, 1969, to dispose of the matter.  At this meeting, a motion to reject the application entirely was rejected by a vote of two in favor and three opposed.  A motion was then made that the proposed piers "be limited to 116 feet in length, and that the landfill and bulkhead be approved as submitted and that the slips be limited to 56 in number." This motion passed unanimously.  It was then stated in the minutes of this meeting:

   "The Port Wardens felt that the piers should be limited as it could cause some interference to navigation to small[***8] boats and the Port Wardens restricted the decision to this."

   Thereafter, on December 19, 1969, the decision of the Port Wardens was appealed by the Yacht Club to the Mayor and Aldermen. The hearing on the appeal was held before the Mayor and Aldermen on January 26, 1970.  The transcript of the proceeedings before the Port Wardens was duly admitted into evidence and counsel for the Yacht Club stated to the Mayor and Aldermen that it was their "duty to consider this appeal solely on the question of navigation, and solely on the record that is before you."

   Notwithstanding this statement by counsel for the Yacht Club, the Chancellor aptly described in his opinion what then occurred, as follows:
 
"It is apparent from reading the transcript of that meeting that it soon degenerated into a general animated discussion of zoning, parking problems, appeals to preserve the general ecology, discussion of legal theory, discussion of erosion and the implied impugning of the veracity [*53] of the witnesses.  The Mayor and Aldermen entered wholeheartedly into the discussion of all aspects of these matters, some testifying as fully as any witness might. The result of the hearing was[***9] the affirmation of the Port Wardens' action.  The resolution entered in the minutes of the [**105] regular meeting of the Mayor and Aldermen held on February 9, 1970 reads,
"'Alderman Dignan said after long and due consideration, we have to come to conclusion that it is only just to uphold the Port Wardens.  He so moved, the motion seconded by Alderman Whelan.  Roll Call vote all in favor, motion adopted.'"

   There was, however, some testimony taken before the Mayor and Aldermen which had some possible relation to the effect on navigation by the proposed construction.

   Mrs. Parker Fairlamb, who had testified before the Port Wardens, as we have indicated, mentioned her testimony, already quoted, before the Port Wardens but then stated:
 
"All boats don't require the depth of water in the channel, and anyone who lives in that area knows that many small boats operate in that area all the time, spring, summer and fall."

   Lawrence Johnson, who stated that he sailed a small boat in and around Annapolis during the entire year, testified that he and other members of the Severn Sailing Association (with a membership of between 225 and 250) quite frequently sail within[***10] several hundred feet of the beach and the proposed bulkheads would extend past the area normally used by them for sailing. He was "sure it will quite often impede our sailing." * * * "On several other occasions, we do sail under the shore line there.  We don't get in much closer than that."

   Mr. Johnson later stated that he questioned "the need for another club."

   [*54] Parker Fairlamb, the husband of Mrs. Fairlamb who had testified, as we have seen, both before the Port Wardens and the Mayor and Aldermen, testified that:
 
"We contend that the distance requested is excessive and will affect navigation and very substantially."

   He further stated:
 
"As to the accessibility of boats to that area, I would like to say and reinforce what Mr. Johnson said, as well as my wife, there's a very lively sailing of sailboats, very little in the way of large cruisers, thank God, in this area.  I happen to own a fairly large cruiser. I could have brought it in to our bulkhead. My son owns a small cruiser which he brings in our bulkhead. Those boats have approximately two and a half to three foot drawings.  The sailboats, however, are either keel boats or centerboard crafts, [***11] and they can sail in there and I have a son-in-law who sails a light thing, approximately a twenty-foot boat which he sails right into the shoreline there where we are.  Boats from the Naval Academy, the midshipmen sail their boats in this area and it's a very lively area in the summertime."
 
   At the hearing before the Chancellor the transcripts of the hearings before both the Port Wardens and the Mayor and Aldermen were introduced, including the various plats and other exhibits mentioned in those transcripts or attached to the bill of complaint.

   The Chancellor began his opinion with the pertinent observation:

   "This case could easily be referred to as Lunter v. Laudeman, [251 Md. 203, 246 A. 2d 540 (1968)] revisited.  The only essential legal difference lies in the fact that the Mayor and City Council on appeal affirmed the action of the Port [*55] Wardens of the Mayor and Aldermen of Annapolis."

   As we see it, however, there is one other essential legal difference, i.e., that in Lunter we did not find it necessary to decide whether or not the appeal from the Port Wardens was an appeal confined to the record made before the Port Wardens or was a hearing[***12] de novo while in the present case we will make that decision.

   [**106] In Lunter we reviewed in some detail the statutes applicable to the Port Wardens, the historical background of those ordinances and generally their scope and effect.  We stated:

   "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 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."
(Emphasis in the opinion in Lunter.)
(251 Md. at 208; 246 A. 2d at 543.)

   * * *

   "The Port Wardens do not have[***13] 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 [*56] 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 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[***14] is given to the health officers and no part of that power is given to the Port Wardens." (251 Md. at 209; 246 A. 2d at 544.)

   * * *

   "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 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 [*57] sense, arbitrary, capricious and unreasonable and, therefore, null and void as the Chancellor decided."
(251 Md. at 212; 246 A. 2d at 545-46.)

   The Chancellor in the present case concluded that there was no legally sufficient evidence before either the Port Wardens or before the Mayor and Aldermen which could support the denial of the application as originally presented, and hence[***15] their respective actions were arbitrary, unreasonable and capricious and thus a denial of due process of law.  See Lunter v. Laudeman, 251 Md. 203, at 216, 246 A. 2d 540 at 547, supra, and cases therein cited.

   [**107] We fully agree with the Chancellor's conclusion in regard to the testimony before the Port Wardens.  There was simply no testimony whatsoever that the proposed construction would (1) render navigation "too close and confined" or that (2) the project would "be built of materials" and "constructed in such a manner as will be deemed not sufficiently substantial and lasting," the only two matters legally before the Port Wardens for their determination. Indeed, there was and is, as we have observed, no contention between the parties in regard to the materials and the manner of construction; and the affirmative evidence offered on behalf of the applicant and on behalf of the protestants was all to the effect that the proposal would have no adverse effect upon navigation.

   When we consider the evidence taken before the Mayor and Aldermen, however, in addition to the record made before the Port Wardens, it is not nearly so clear that there is no evidence legally[***16] sufficient to support a denial by the Mayor and Aldermen of the portion of the proposal already mentioned.  Admittedly, the great weight of the evidence before the Mayor and Aldermen is to the effect that the entire proposal would not render navigation too close and confined; but under our decisions and those of our predecessors, this is not enough for us to hold that the action of the legislative body is arbitrary, unreasonable or capricious, and thus a denial of due process of [*58]law.  See Tauber v. County Board of Appeals for Montgomery County, 257 Md. 202, 212, 262 A. 2d 513, 518 (1970).

   The effect of the decisions of this Court on this subject is well stated in Cohen, Some Aspects of Maryland Administrative Law, 24 Md.L.Rev. 1 at p. 38 where it is stated:
 
   "It is said to be the general practice of courts, when reviewing a decision of an administrative agency, to uphold the agency's findings of fact unless they are arbitrary.  This practice is often referred to as the 'substantial evidence rule', meaning, that an agency's findings of fact will be upheld as long as there is some reliable evidence in the record to support such findings, even though the weight[***17] of the evidence is to the contrary.  To give a simple illustration of the rule, assume that in an agency hearing five witnesses testify on one side of a proposition, and one witness testifies on the other. In its findings, the agency states that it does not doubt the credibility of any of the witnesses, but that it is relying on the testimony of the one witness and disregarding that of the five.  Under the substantial evidence rule, a court would be required to uphold such findings."

   See also Oppenheimer (later a judge of this Court), Administrative Law in Maryland, 2 Md.L.Rev. 185, 208-09 (1938) where the distinguished author states:

   "In no other phase of the subject has the liberal attitude of the Court of Appeals been more marked than in the much mooted matter of the scope of judicial review.  The position of the Court has been consistent; it will not substitute its own judgment on the facts for the finding of the administrative agency."

   It may well be argued that the testimony of the protestants [*59] before the Mayor and Aldermen, already mentioned, did not really meet or sustain a finding that the portion of the application denied by the Mayor and Aldermen [***18]did render navigation too close and confined. This presents a borderline situation and we prefer in the present case to assume, arguendo, without deciding, that such evidence was sufficient to sustain the action of the Mayor and Aldermen and decide whether or not the appeal from the decision of the Port Wardens was confined to the record before them or if it was a hearing de novo.  Obviously, if the hearing before the Mayor and Aldermen was confined to the record before the Port Wardens and was not an appeal de [**108] novo, the decree of July 20, 1970, must be affirmed for the reasons already stated. We now turn to this issue.

   (2)

   The applicable statute is Section 40 of the Charter of the City of Annapolis, contained in the Code of the City of Annapolis, Maryland (Michie, 1969), which provides:

   "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."

   Section 40 follows Section 38 providing for the general powers of the Port Wardens and Section 39 requiring a license, issued by the Port Wardens, to build any wharf or carry out any[***19] earth or other material for that purpose.

   The provisions of the statute are the primary source for the determination of whether the appeal is confined to the record made before the Port Wardens or contemplates a hearing de novo.  See Lee v. Sec. of State & Mahoney, 251 Md. 134, 139, 246 A. 2d 562, 566 (1968).

    We have concluded that the appeal to the Mayor and Aldermen from the Port Wardens is confined to the record made before the Port Wardens and that no de novo hearing is contemplated.

   The source of Section 40 is Section VIII of the Act of 1785, Chapter 26, as we pointed out in Lunter v. Laudeman, [*60] supra (251 Md. at 210; 246 A. 2d at 544). The appeal is to a legislative, rather than to a judicial body, but in our opinion the same rules of construction apply in either situation.

   In the first place, the statute provides for an appeal and does not state that the hearing before the Mayor and Aldermen shall be de novo or that additional evidence may be taken at any hearing on appeal.  Ordinarily, in the absence of a statutory provision to the contrary, an appeal is confined to the record made before the administrative body rendering the original decision. [***20]See Volz v. State Roads Commission, 221 Md. 209, 213-15, 156 A. 2d 671, 673-74 (1959) for a comprehensive review of the Maryland Law in regard to when an "appeal" with an express provision for a hearing de novo is equivalent to the filing of a new proceeding as contrasted with an ordinary appeal from Administrative Boards.

   In considering the provisions of Code (1969 Repl. Vol.), Art. 89B, § 18 in regard to an "appeal" from the Board of Property Review in condemnation cases of the State Roads Commission of Maryland to the Circuit Court, Judge Horney, for the Court, stated:

   "It is evident that the Legislature, in enacting the statute now under consideration, intended to and did distinguish between an appeal, in its ordinary or usual sense, from other administrative agencies or quasi-judicial boards, and an appeal, in the non-technical sense, from the property review board.  Here the 'application' by either party, howsoever made, for the filing of a condemnation proceeding to be tried anew constitutes the 'appeal.' Read in this sense, the statute simply provides that either party to the review board proceeding, who is dissatisfied with the findings and award[***21] of that board, has the right, within thirty days, to 'apply for' a condemnation case to be filed in court and heard de novo as the new and independent action it is. [*61]Purcell Bank & Trust Co. v. Byars, 66 Okla. 70, 167 Pac. 216 (1917)."
(221 Md. 214-15, 156 A. 2d 674; emphasis in the opinion in Volz.)

   Secondly, the original decision is made by persons specially appointed for the determination of a specialized matter requiring some expertise on the part of the members of the administrative body. Under these circumstances, it can reasonably be [**109] assumed that the facts be presented to the administrative body for its special consideration and that no hearing de novo on appeal would be contemplated.

   Thirdly, the language of Section 40, itself, appears to be restrictive and involves "differences . . . touching the discharge of their [the Port Wardens'] duty," rather than a general or complete rehearing on appeal.  We held in Lunter that this language confined the scope of appeal to the issues properly raised under Section 38, to which reference has already been made (see Lunter, 251 Md. at 210; 246 A. 2d at 544). This language also will[***22] reasonably indicate that no de novo hearing on appeal was contemplated.

   Fourthly, an examination of the 1960 Code of the City of Annapolis, Maryland, which contained both Section 40 of the Charter and Section 26-40 (4) of the Code [since repealed], indicates that when it was intended that additional testimony be taken on an appeal from an administrative body, this intent was specifically set forth in the statute and provision made for this, being done by specific action by the court on appeal, either by itself hearing the additional testimony or by appointment of a referee to hear the additional testimony and to report his findings of fact and conclusions of law to the court.  See Section 26-40 (4) [since repealed], Code of the City of Annapolis, Maryland (Michie, 1960) in regard to appeals to the Circuit Court for Anne Arundel County.  The absence of any such provisions in Section 40 of the Charter when compared to their presence in a somewhat analogous [*62] situation, emphasizes that it was not intended that there be additional testimony taken or a hearing de novo on the appeal from the decision of the Port Wardens.

   For a review of the provisions of various[***23] zoning ordinances of Baltimore City in regard to de novo hearings on appeal from the administrative body, see Dorman v. Mayor and City Council of Baltimore, 187 Md. 678, 689; 51 A. 2d 658, 663 (1947).

   We, therefore, need not consider the additional evidence introduced before the Mayor and Aldermen on appeal inasmuch as the hearing on appeal was confined to the record made before the Port Wardens, which, as we have indicated, was clearly insufficient to justify a denial of the portion of the application disapproved by the Port Wardens.  The decree of July 20, 1970, being correct, will be affirmed.

   Decree of July 20, 1970, affirmed, the appellants to pay the costs. 

STATE ROADS COMMISSION OF MARYLAND v. PUMPHREY et al. 
No. 245, September Term, 1970
 
Court of Appeals of Maryland
 
260 Md. 633; 273 A.2d 81; 1971 Md. LEXIS 1265

 February  4, 1971, Decided

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

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

CORE TERMS:  plat, condemnation, acquisition, highway, date of valuation, clerk, condemnation proceedings, recorded, immediate possession, property owner, deposited, completion, petition filed, date of trial, instituted, recordation, condemned, estimate, acre, duty, notice of dissatisfaction, subject property, originally enacted, manner prescribed, valuation date, fair value, chairman, notice, rights-of-way, conformity

COUNSEL: Norman Polski, Special Attorney, with whom were Francis B. Burch, Attorney General, Joseph D. Buscher, Special Assistant Attorney General, Nolan H. Rogers, Administrative Special Attorney, and Richard T. Brice, IV, Special Attorney, on the brief, for appellant.

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

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

OPINIONBY: BARNES

OPINION: [*634] [**81] The proper date of valuation is the principal matter involved in this appeal from a judgment absolute entered on March 10, 1970, by the Circuit Court for Anne Arundel County for $8,000.00, with interest from February 17, 1970, and costs, in a condemnation case in which the appellant, the State Roads Commission of Maryland (the Commission), sought to acquire for State Road purposes certain land owned by the appellees, Franklin Pumphrey, Eva Pumphrey, his wife, and Jessie C. Meushaw, joint tenants (the Owners), located in the[***3] Second Election District of Anne Arundel County.

    The Commission filed a petition for land acquisition in the Circuit Court for Anne Arundel County on January 4, 1968.  The land to be acquired was alleged to consist of 1.60 acres, more or less, lying between the lines marked "Right of way Line" as shown on attached plats Nos. 33735 and 33736, to be taken in fee simple.  A check for $1,200.00 was deposited with the Clerk of the Circuit Court for Anne Arundel County the same day.

   On April 2, 1968, the matter was certified to the Board of Property Review and on June 26, 1968, was set down [*635] for hearing before that Board.  At the request of counsel for the Owners, the hearing before the Board was postponed.

   In accordance with the provisions of Maryland Rule U27 e, the Commission, on July 22, 1968, filed a letter requesting the Board of Property Review to relinquish jurisdiction over the case.  On August 8, 1968, however, the Commission and the Owners (by their counsel) entered a Stipulation waiving the provisions of Rule U27 [**82] c 1, thereby extending the time within which the Board of Property Review might hear the case until August 30, 1968.

   The Board of Property[***4] Review, on August 14, 1968, heard testimony in regard to value and damages to the Owners, viewed the property, and on August 21, 1968, rendered its award of $4,485.00.

   The Commission, on September 19, 1968, filed Notice of Dissatisfaction; and on October 10, 1968, the Commission filed a formal condemnation petition in the Circuit Court for Anne Arundel County for the acquisition of 1.21 acres of land (vs. 1.60 acres in the land acquisition petition filed January 4, 1968) and the condemnation petition filed October 10, 1968, was accompanied by a plat designated No. 37213 (vs. Plats Nos. 33735 and 33736 filed with the land acquisition petition filed January 4, 1968).

   Paragraph 6 of the condemnation petition filed October 10, 1968, alleges the following:

   "6. That your Plaintiff [the Commission] has heretofore on the 4th day of January, 1968, deposited a check under the provisions of Chapter 59 of the Acts of 1956, in the amount of ONE THOUSAND TWO HUNDRED ($1,200.00) DOLLARS, payable to the Clerk of the Circuit Court for Anne Arundel County, to the use of the aforesaid defendants, in the hands of the said Clerk, in conformity with the provisions of Article 89B, Section 9, Public[***5] General Laws of [*636]Maryland, and your Plaintiff deems the said sum of money to be the fair value of the land and improvements taken and damages done to the aforesaid property.  That your Plaintiff states that it is in the public interest and necessary for the State Roads Commission to take possession of the aforesaid land and improvements immediately upon depositing the said money into the hands of the said Clerk of the Court, and in conformity with the aforesaid provisions of statute it has taken possession for the aforesaid purposes on the 4th day of January, 1968."

   The prayers for relief were:

   "(a) That the property described in the aforegoing petition may be condemned so that your Plaintiff may acquire a fee simple title thereto, together with other rights hereinabove described.
 
   "(b) That further proceedings may be had in this cause under the authority of and pursuant to the provisions of Article 33A and Article 89B of the Public General Laws of Maryland relating to the subject of 'Eminent Domain'."

   On February 24, 1969, the Commission and the Owners, through counsel, stipulated that Plat No. 37213, revised January 9, 1969, should be used in the case in lieu[***6] of Plat No. 37213 theretofore filed; and the revised plat was filed in the proceedings.  Apparently the only changes in the revised Plat No. 37213 were the elimination of the notation "21' stream & marsh" designation in the westerly portion of 1.21 acre tract replaced by the designation "Marsh & Pond Area" and the addition, still farther west, of a designation of "Marshy Pond Area" beyond the westerly division line of the 1.21 acre tract.  The bearings and distances and the curve data remained the same in the two plats.

   The Owners filed their answer to the condemnation petition of October 10, 1968, on March 7, 1969.

   [*637] The condemnation trial was set for February 16, 1970.  Immediately prior to trial, a question arose between the Commission and the Owners in regard to the proper date to be used in respect to the valuation of the subject property, the Commission contending that January 4, 1968, was the proper date of valuation, the Owners contending that such date was the date of trial. The Commission then filed its motion raising a preliminary question of law, pursuant to Rule 502, on February 16.  The trial court (Childs, J.), after reviewing the authorities and hearing[***7] argument, [**83] ruled that the proper date for valuation was the date of trial and so instructed the jury, the Commission taking no exception to the lower court's charge.  The jury returned an inquisition showing the amount of damages to be $8,000.00, representing the value of the land together with resulting damage.

   The Commission filed a timely motion for a new trial on February 19, which was argued on March 3, 1970.  On March 10, 1970, the lower court denied the motion for a new trial and filed a carefully considered written opinion giving the reasons for that decision.  Judgment absolute was entered on the inquisition on March 10, 1970, and an appeal to this Court was entered by the Commission on March 16, 1970.

   It is conceded that the Commission had not taken possession of any part of the subject property prior to trial.

   We are of the opinion that the lower court correctly ruled that the date of valuation was the date of trial and we shall affirm the judgment.  We do not find it necessary to pass upon the additional point raised by the Owners that even if the trial court had been in error in regard to the valuation date, the judgment should nevertheless be affirmed because[***8] there was no evidence that the award of the jury was excessive or unjust or that substantial prejudice has resulted to the Commission as a result of the rulings by the trial court.

   Code (1971 Repl. Vol.), Art. 33A is entitled "Eminent Domain" and generally applies to all proceedings for the acquisition of private property for public use by condemnation. [*638] Such proceedings are governed by the provisions of Art. 33A and subtitle U of the Maryland Rules of Procedure.  Art. 33A was revised by the Acts of 1963, Ch. 52, effective June 1, 1963, the former sections of Art.  33A having been repealed and the new provisions in the Act of 1963, Ch. 52 standing in lieu thereof.  One provision of § 1 of Art. 33A is that "nothing herein shall prevent the use by the State Roads Commission of the procedure set forth in § 10 through 20, inclusive, of Article 89B of this Code . . . ."

   Section 4 of Art. 33A provides in regard to the time as of which value is determined:

   "The value of the property sought to be condemned and of any adjacent property of the defendant claimed to be affected by the taking shall be determined as of the date of the taking, if taking has occurred, or as of [***9]the date of trial, if taking has not occurred, unless an applicable statute specifies a different time as of which the value is to be determined."

   Section 14, in regard to when the property is deemed to be taken, provides:

   "For the purposes of this article, property shall be deemed to have been taken:

   "1. In cases in which the plaintiff is lawfully authorized to take the property before trial pursuant to § 40A or § 40B of Article III of the Constitution of this State, when the payment required thereunder has been made to the defendant or into court and any security required thereunder has been given and the plaintiff has taken possession of the property and actually and lawfully appropriated it to the public purposes of the plaintiff.

   "2. In all other cases, upon payment of the judgment and costs by the plaintiff pursuant to Subtitle U of the Maryland Rules."

   [*639] The Constitution of Maryland was amended on November 3, 1942, so that Art. III, Sec. 40B gave the General Assembly of Maryland the power to provide by statute that when, in the judgment of the Commission, private property was needed by the State for highway purposes, such property "may be taken immediately" [***10] upon payment to the owner by the Commission or into Court, such amount as the Commission shall estimate to be of the fair value of said property, provided such legislation [**84] also required the payment of any further sum subsequently awarded by a jury.  This constitutional amendment was adopted by the General Assembly at its 1941 Session by the Acts of 1941, Ch. 607.

   By the Acts of 1941, Ch. 606, the General Assembly enacted a new § 4A of Art. 89B, title "State Roads" of the 1939 Code to implement the power granted by the proposed constitutional amendment as and when adopted.  This § 4A has now become § 9 of Art. 89B of the present code, having been amended twice in the meantime by the Act of 1950, Ch. 54 and the Act of 1951, Ch. 318.

   As originally enacted, § 4A provided:

   "Upon the adoption by the legal and qualified voters of this State of the amendment to Article III of the Constitution of this State (proposed by an Act passed at this session of the General Assembly) in addition to the power and authority provided by the preceding section of this Article, the State Roads Commission is hereby authorized to enter upon and take possession of such property and rights[***11] of way as the State Roads Commission may deem necessary, and proceed with the highway construction provided the said State Roads Commission shall first pay to the owner or owners thereof or into Court, for his, her or their benefit, such sum as the said State Roads Commission shall estimate to be the fair value of the land and improvements taken and damage done, if any; such payment, [*640] however, shall in no wise limit the amount to be allowed under subsequent condemnation proceedings. Within sixty (60) days after the completion of the construction of such highway if the State Roads Commission and the owner or owners of such land are unable to agree as to compensation and damages, if any, caused thereby, the said State Roads Commission shall institute condemnation proceedings in the manner prescribed by the provisions of Article 33A of the Annotated Code of Public General Laws.  It is the intention of this Act to provide that such property and rights of way, in an emergency, in the discretion of the Commission, be condemned after construction of the highway has been commenced as well as prior thereto, although so far as possible all rights of way shall be acquired or contracted [***12]for before any route is definitely located.  This Act to apply only to acquisition of property by the State Roads Commission." n1

n1 By § 4 of Art. 89B of the 1939 Code (now § 7 of Art. 89B of the present Code), the Commission was given power to proceed to acquire private property for public use as prescribed by certain sections of Art. 23 or by the provisions of Art. 33A of the Code.

   The Act of 1950, Ch. 54 added a provision to the original enactment that the property owner could withdraw the deposited funds from the court without prejudice, if the owner agreed to repay the Commission the difference between the deposited funds and the final award and the Commission was required to pay the owner such further sum that may "be finally awarded in a subsequent condemnation proceedings."

   By the Act of 1951, Ch. 318, a provision was added which enabled the owner subsequent to the deposit into court, to request the Commission in writing that "such condemnation proceedings," i.e., those directed to be instituted [***13]in the manner prescribed by the provisions of Art. 33A, be instituted and the Commission, within 30 [*641] days of the receipt of that notice, had the duty to institute such proceedings.  It was the duty of the court to hear and determine such proceedings as soon thereafter as practicable.

   Giving effect to these amendments, § 9 of Art. 89B now provides in Code (1969 Repl. Vol.):

   "Upon the adoption by the legal and qualified voters of this State of the [**85]amendment to Article III of the Constitution of this State, in addition to the power and authority provided by § 7 of this article, the State Roads Commission is hereby authorized to enter upon and take possession of such property and rights-of-way as the State Roads Commission may deem necessary, and proceed with the highway construction, provided the said State Roads Commission shall first pay to the owner or owners thereof or into court, for his, her or their benefit, such sum as the said State Roads Commission shall estimate to be the fair value of the land and improvements taken and damage done, if any; provided, however, if said sum is so paid into court, the property owner, upon written request to the clerk[***14] of said court, shall be entitled to receive said sum without prejudice to any of these rights if said property owner agrees to pay back to the State Roads Commission the difference between said sum and the final award, if such final award be less than the sum paid into court; such payment, however, shall in nowise limit the amount to be allowed under subsequent condemnation proceedings, and the State Roads Commission shall pay to the owner or owners of such property and rights-of-way from any funds, in its possession or under its control, any further sum that may subsequently be finally awarded in a subsequent condemnation proceedings. Within sixty (60) days after the completion of the construction [*642] of such highway, if the State Roads Commission and the owner or owners of such land are unable to agree as to compensation and damages, if any, caused thereby, the said State Roads Commission shall institute condemnation proceedings in the manner prescribed by the provisions of Article 33A of the Annotated Code of Public General Laws; provided, however, the owner or owners at any time subsequent to the payment of such sum into court request, in writing to the State Roads Commission, [***15] that such condemnation proceedings be instituted and in such case it shall be the duty of the State Roads Commission within thirty days after receipt of such notice to institute such proceedings and the duty of the court to hear and determine such proceedings as soon thereafter as practicable. It is the intention of this section to provide that such property and rights-of-way, in an emergency, in the discretion of the Commission, be condemned after construction of the highway has been commenced as well as prior thereto, although so far as possible all rights-of-way shall be acquired or contracted for before any route is definitely located.  This section to apply only to acquisition of property by the State Roads Commission."

   By the Act of 1956, Ch. 59, §§ 9A to 9K were added to Art. 89B of the 1951 Code, now, as amended, §§ 10 to 20 of Art. 89B of the present Code.

   Section 18 of Art. 89B in the present Code provides:

   "In the event either the Commission or the property owner shall be dissatisfied with the findings and award of the board of property review either shall have the right of appeal to the circuit court for the county or the Superior Court for Baltimore City, as[***16] the case may be, in whichever jurisdiction the property is situated.  [*643] Upon appeal the case shall be heard and determined under the procedure set forth in this article and Article 33A of the Annotated Code of Maryland.  If the Commission shall have failed to acquire title to the property and ascertained the amount to be paid for same within one year from the date the plats or maps are recorded, as aforesaid, or have failed to file a condemnation suit in the proper court, as aforesaid, then, and in such case, the value of the property shall no longer be determined as of the date of the plats or maps were recorded but shall be determined as of the time of acquisition unless the value be less at the time of acquisition and [**86]then, in such cases, the value shall be determined as of the recordation date."

   Judge (now Chief Judge) Hammond, for the Court in State Roads Comm. v. Orleans, 239 Md. 368, 372-73, 211 A. 2d 715, 718-19 (1965) summarized the history of this legislation as follows:

   "Secs. 10-20 of Art. 89B were originally enacted by Ch. 59 of the Laws of 1956.  They require the filing of plats and the payments or deposits of the estimated value of property[***17] for an entire section of a road project so as to freeze simultaneously the value of all properties in the path of such a project.  They call for negotiation thereafter with the owners and, if there is failure to agree within six months after the plats are recorded and the money provided for, for certification to the Property Review Board (such certification was originally provided for by Sec. 16 of Art. 89B, and now is under Maryland Rule U27 b 1).

   "The Board first had to decide the case within five months after certification under Sec. 17 f of Art. 89B but now, by virtue of amendments made by Ch. 36 of the Laws of 1962 and the promulgation [*644] of Maryland Rule U27 c 1, it has only three months for a hearing and an additional month to make an award (Rule U27 d).  If the case is not heard by the Board within three months or if an award is not made within thirty days after the hearing, either side may order the matter sent to court for the filing of a condemnation petition, under Maryland Rule U27 e.  Under Sec. 18 of Art. 89B, as originally enacted, either the Commission or the property owner could 'appeal' within thirty days to the Circuit Court from an award of the Board[***18] and, upon appeal, the case was to be heard and determined under the procedures of Articles 89B and 33A of the Code.  If the property owner sought the appeal, he was to notify the Commission in writing and thereupon it became the duty of the Commission to file the condemnation suit in the proper court.  (It was held in Volz v. State Roads Commission, 221 Md. 209, that the statute meant simply that either side may bring about the filing of a condemnation suit in the Circuit Court and have it heard as a new and independent action and that the 'appeal' was the condemnation case.) Sec. 18, as originally enacted, then used the words quoted above and here to be construed that, if title were not acquired within one year or a condemnation suit not filed, 'as aforesaid,' the valuation date was not to be the recordation date but the 'time of acquisition.'"

   This Court promulgated Maryland Rules U15 to U20 on January 1, 1962.  By the Act of 1962, Ch. 36, effective June 1, 1962, the procedural portions of § 18 of Art. 89B which were covered by Rules U15 to U20 were repealed, leaving unaffected, however, the provisions in regard to failure to acquire title or to file suit.

   Rule U27 provides[***19] for a Board of Property Review Procedure for "all cases" under Art. 89B which may be [*645] certified to such a Board. Subsection f of this rule provides:
 
"f. Dissatisfaction with Award.

   "1. Notice -- Time.

   Within thirty days after the filing of the award of the board with the clerk of the court, any party dissatisfied therewith may file written notice of his dissatisfaction with the clerk of the court.  A copy of the notice shall be served on a party pursuant to Rule 306 (Service of Pleadings and Other Papers).

    "2. Condemnor's Duty to File Petition.

   Within thirty days after the filing of notice of dissatisfaction the condemning party shall institute a proceeding for condemnation by filing in court a petition for condemnation, and the same proceedings shall be had thereon as if [**87] the matter had never been certified to the board of property review."

   The Commission contends that it had filed the condemnation petition of October 10, 1968, under §§ 10-20 of Art. 89B and that, inasmuch as it had filed this petition within three months after it filed its notice of dissatisfaction on September 19, 1968, it had filed a "condemnation suit in the proper court, [***20]as aforesaid," within the meaning of § 18 so that the valuation date was January 4, 1968, when the $1,200.00 check was deposited and the plats allegedly filed with the original land acquisition petition, and not February 16, 1970, the date of the trial as the lower court held.  The Owners, on the other hand, contend that the lower court's ruling was correct in that (1) the petition filed on October 10, 1968, was filed under § 9 of Art. 89B and not under §§ 10-20, so that the provisions of §§ 4 and 14 of Art. 33A apply and the Commission, not having taken possession of the property and devoted it to public use, the date of valuation is the time of trial; (2) the October 10, 1968, condemnation proceeding was not a "quick taking" petition at all so that §§ 4 [*646]and 14 of Art. 33A apply with the result that the date of trial is the date of valuation; and (3) even if the October 10, 1968, condemnation petition were to be deemed, arguendo, to be under §§ 10-20 of Art. 89B, nevertheless, the provisions of § 18, as properly interpreted, indicate that the time of filing of plats on January 4, 1968, has not been preserved as the date of valuation and that the date of valuation[***21] is the time of trial under §§ 4 and 14 of Art. 33A.  It will be convenient to consider the case under the three contentions of the Owners and in the order indicated, (1) and (2) being considered together.

   (1) and (2)

   We have indicated in our decision in State Roads Commission v. Adams, 238 Md. 371, 209 A. 2d 247 (1965) that when proceeding for immediate possession under Legislation passed pursuant to Article III, Sec. 40B of the Maryland Constitution, the Commission has two alternative methods of proceeding: (1) under § 9 and (2) under §§ 10-20.  See note 2 in the opinion in the Adams case (238 Md. at 375, 209 A. 2d at 249). These alternative methods of proceeding are well stated in Baker and Altfeld, Maryland's New Condemnation Code, 23 Md. L. Rev. 309, 314, as follows:

   "Pursuant thereto [Article III, Section 40B of the Maryland Constitution], the Legislature has given the Commission two methods of obtaining immediate possession. The first method provides for the State Roads Commission to estimate the fair market value of the property to be condemned and to tender this money to the owners or to deposit it in court.  If sixty days elapse after completion of the[***22] highway and the State Roads Commission and the property owner are unable to agree on damages, then the Commission is empowered to institute condemnation proceedings under Article 33A if it has not already been done at the request of the condemnee.

   "The second method, which is available only as to unimproved property, provides for the [*647] State Roads Commission to file plats with the court where the action is docketed and to pay its estimate of damages to the owner or into court and thereupon take possession.  If six months pass after recordation of the plats and the parties have not agreed on damages, then the case is certified to the Property Review Board to determine an award.  Any dissatisfied litigant may appeal the action of the Board to the court and have his case tried de novo under Article 33A." n2

n2 We cited this portion of this Law Review Article in Note 2 already mentioned, but we note that the reference to it in the Official Reports is in error in that the volume of the Maryland Law Review is stated to be "17" rather than the correct "23." The citation is correct in the Atlantic Reporter.

[***23]

   It is apparent that there may well be different consequences resulting from which [**88] method for immediate taking the Commission elects to use.

   There seems to be little doubt that the Commission when it proceeded to file its land acquisition petition on January 4, 1968, was proceeding under §§ 10-20 of Art. 89B.  It alleged that it was then filing Nos. 33735 and 33736.  These are "strip" plats described in § 11 of Art. 89B.  See also §§ 13 and 14 in regard to the mandatory requirement that these plats be signed by the Chairman of the Commission after which the plats "shall be recorded with the secretary of the Commission and with the clerk of the circuit court of the county or counties through which the proposed new highway or reconstructed highway traverses . . . ." It is recited on Plats Nos. 33735 and 33736 for 1.60 acres that they were "finalized" by the Chairman and Director of the Commission on December 11, 1967, and were sent to the Record Office in the Circuit Court for Anne Arundel County on January 11, 1968. n3

n3 Answer 19 of the Appellant's answers to interrogatories below states that Plats Nos. 33735 and 33736 were recorded in Land Acquisition Plat Book on January 4, 1968.  This recordation date, however, could not be correct inasmuch as the plats were not sent to the clerk until January 11, 1968 and, therefore, must have been recorded after January 11.

[***24]

   [*648] When, however, the condemnation petition of October 10, 1968, was filed after the Notice of Dissatisfaction was filed by the Commission, no reference is made to Plats Nos. 33735 and 33736 for the taking of 1.60 acres; but a new plat which is not signed by the Chairman of the Commission for 1.21 acres is filed with the condemnation petition and this new plat was not recorded .
 
   Although the October 10 condemnation petition does refer to the check for $1,200.00 deposited on January 4, 1968, "under the provisions of Chapter 59 of the Acts of 1956" payable to the clerk to the use of the Owners "in conformity with the provisions of Article 89B, Section 9, Public General Laws of Maryland" and the need for immediate possession which the petition alleges was taken on January 4, 1968, there is no mention of the two prior plats and, as we have indicated, the allegation in regard to having taken possession is incorrect, there having been no possession taken on January 4, 1968, or by October 10, 1968, or, indeed, prior to trial.

   The Owners urge upon us that when the condemnation petition, itself, states that the check was deposited "in conformity with the provisions of[***25] Article 89B, Section 9," this indicates an irrevocable election by the Commission to proceed under the § 9 alternative method of proceeding.  This argument has force, but, in our opinion, we need not decide the issue, inasmuch as we have concluded that the Commission could not legally proceed under either § 9 or under §§ 10-20 of Art. 89B.  The October 10, 1968, proceeding was in effect under Art. 33A and was not a proceeding for immediate possession at all.

   In spite of the allegation in regard to § 9 so far as the deposit of the $1,200.00 check on January 4, 1968, the October 10, 1968, condemnation proceeding could not legally be under § 9 in that the institution by the Commission is only authorized within 60 days "after the completion of construction of the highway" and such completion had obviously not occurred.  In any event, if the Commission had been able to proceed under § 9, the provisions of Art. 33A would have applied in that § 9 provides [*649] that the condemnation proceeding shall be instituted "in the manner prescribed by the provisions of Article 33A . . . ." In short, when any condemnation petition is filed pursuant to § 9, it proceeds and is subject to[***26] the provisions of Art. 33A which, under §§ 4 and 14 of that Article, as we have seen, would fix the time of trial as the date of valuation.

   Nor could the October 10 condemnation petition have been legally under §§ 10-20 of Art. 89B inasmuch as the mandatory requirements under § 14 of signing by the [**89] chairman and recording of Plat No. 37213 had not been met. This new plat does not purport to be an "amendment" of Plats Nos. 33735 and 33736; and, as we have indicated, the condemnation petition of October 10, 1968, does not mention these two plats. The amount of land to be taken is different, as we have observed.  The Commission filed no petition for leave to "amend" Plats Nos. 33735 and 33736 theretofore finalized and recorded or to substitute Plat No. 37213 in lieu of those plats. See Concannon v. State Roads Commission, 230 Md. 118, 186 A. 2d 220 (1962). Indeed, until Plat No. 37213 was finalized and properly prepared for recordation, such a substitution or "amendment" could not have been granted even if a proper petition seeking substitution or "amendment" had been filed by the Commission.  The new plat, in our opinion, superseded the two former plats and the October[***27] 10 condemnation petition was a new proceeding, with a different and new plat.

   As we see it, the only method left to the Commission for the acquisition of the land -- still in the possession of the Owners -- was under the provisions of Art. 33A.

   Then, too, the Commission had not taken, and obviously did not intend to take, "immediate possession" of the subject property, had not acquired title and had not paid the full compensation to the Owners, the basic purposes of the extraordinary power granted to the Commission under § 9 and §§ 10-20 of Art. 89B pursuant to the Constitutional Amendment.

   [*650] As we said in State Roads Comm. v. Orleans, supra:

   "We think the legislative purpose revealed by the history and wording of Secs. 9-20 of Art. 89B was that if the Commission took too long to acquire title and pay the full amount of compensation due for the taking, the valuation date of the property taken was not to be the time the maps and plats were recorded, as ordinarily it would be, but rather the date legal title was acquired." (239 Md. at 372; 211 A. 2d at 718.)

   Under the circumstances of this case, it can be inferred that the Commission did not intend to proceed[***28] under the immediate possession provisions of Art. 89B, but rather to proceed under the usual method for acquisition of property by condemnation provided for in Art. 33A.

   (3)

   The Owners successfully argued below and earnestly argued before us that even if it be assumed for the argument that the Commission had proceeded under §§ 10-20 of Article 89B, the proper construction of the language of § 18 "or have failed to file a condemnation suit in the proper court, as aforesaid" (Emphasis supplied.) leads to the conclusion that the Commission has not preserved the date of filing of plats on January 4, 1968, as the date of valuation. The ambiguities in the language of § 18 have been carefully considered in Orleans and need not be further elaborated upon by us in this opinion.  See Orleans, supra, 239 Md. 373-76, 211 A. 2d 718-20.

   We do not reach this question in view of our opinion that the Commission could not legally proceed under § 9 or under §§ 10-20 of Art. 89B, but must have proceeded under the provisions of Art. 33A.

   Finding no error in the decision of the lower court, we shall affirm the judgment.

   Judgment affirmed, the appellant to pay the costs. 

HELLER et al. v. SEGNER et al. 
No. 199, September Term, 1970
 
Court of Appeals of Maryland
 
260 Md. 393; 272 A.2d 374; 1971 Md. LEXIS 1245

 January  13, 1971, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed February 9, 1971; Denied February 16, 1971.

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

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  neighborhood, zoning, rezoning, residential, filling station, intensification, substantial change, shopping center, intersection, judicata, feet, south side, commercialization, reclassification, ordinance, station, site, shopping, corner, protestants, consequent, strip, population growth, special permit, comprehensive zoning, northwest corner, commercial use, classifications, compatible, neighbors

COUNSEL: Charles C. W. Atwater, with whom were David A. Carney and Mylander & Atwater on the brief, for appellants.

   Malcolm B. Smith, with whom were Smith & Wohlgemuth on the brief, for appellees.

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

OPINIONBY: HAMMOND

OPINION: [*394] [**374] The appellants (who seek a rezoning in Anne Arundel County from residential to commercial) used the spear of perseverance to attack, advancing beneath their banner proclaiming: "If at first you don't succeed, try, try, try again," n1 and the appellees (protesting neighbors) defended with the shield of res judicata, waving their flag [*395] inscribed: "The more things change, the more they remain the same." n2 In 1962 the [**375] County Commissioners granted the petition of the owner of a 5.6 acre plot of ground at the northwest corner of Benfield Road (which runs east and west) and Jumpers Hole Road (which runs north and south) to rezone the property for commercial use. The comprehensive zoning[***4] in 1952 had put 100 feet by some 200 feet at all four corners of the intersection in the Light Commercial zone.  The 1962 application sought -- and the Commissioners granted -- a change at the northwest corner to Heavy Commercial (for use as a filling station) and a change of the rest of the property from Agricultural to Light Commercial for use as the site of a shopping center.

n1 William Edward Hickson, Try and Try Again, quoted in The Home Book of Quotations (10th ed. 1967), p. 1488.  The true authorship of the famous line has proven elusive.  One T. H. Palmer is credited in H. Ferris, Favorite Poems, Old and New (1957), p. 540, while Woods, A Treasury of the Familiar (1959), p. 104, has it that the original author remains unknown.

n2 "Plus, ca change, plus c'est la meme chose." Alphonse Karr, Les Guepes (January 1849).

   Judge Duckett, in the Circuit Court for Anne Arundel County, nullified the actions of the Commissioners, ruling that there had been shown no substantial change in the character of the[***5] neighborhood since the original comprehensive zoning of 1952.  On appeal, this Court affirmed.  Judge Henderson said for the Court in County Comm'rs v. Fairwinds, 230 Md. 569, 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 * * *.  The lot in question abuts a proposed elementary school of 24 rooms and is directly across the road from 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 [*396] 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 [***6]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 changed'."

   In 1969 the County Board of Appeals granted precisely the same changes in classifications to permit the filling station and the shopping center that the Commissioners had granted in 1962.  Judge Beardmore set aside the action again, saying:
 
"[T]his court does not feel that the [burden] has been met by the applicant in this case.  The requested reclassifications are not substantiated by the requisite changes in the character of the neighborhood. If anything, the neighborhood has become more residential since 1962."

   Judge Brune for the Court found in Whittle v. Bd. of Zoning Appeals, 211 Md. 36, 45, that the doctrine of res judicata[***7] applied to the decision of a court in a zoning appeal, saying:

   "It is our view that * * * if there have been substantial changes in fact and circumstances between the first case and the second, the doctrine of res judicata would not prevent the granting of the special permit [for a funeral [*397]home on York Road in Baltimore County] sought by the appellees."

   The changes in the circumstances upon which the appellees relied in Whittle were summarized in the opinion as follows: (1) increased commercialization in the area; (2) increased population; (3) decreased neighborhood opposition; and (4) additional [**376] conditions attached to the grant of the special permit.

   The Court in Whittle held that the construction of a new stone church to replace a wooden one and the addition of a filling station in an area already commercial and containing two such stations did not "show any substantial change or increase in commercialization between 1949 and 1954"; that increase in population had been urged in the first case; that zoning cannot be made to depend on a plebiscite of neighbors; and that the matter of the more stringent conditions had no significance. [***8]

   In Woodlawn Ass'n v. Board, 241 Md. 187, 199, we reaffirmed the holdings of Whittle that there must be significant and substantial change in the character of the neighborhood or such a change in the applicable law if the second judicial decision is not to be the same as the first, and indicated the pragmatic test of significance to be whether the properties relied on as changes would "if developed in actual use under their new classifications, have any real effect upon or make any real change in the character of the neighborhood as [residential]." See also Chatham Corporation v. Beltram, 243 Md. 138.

   The changes that have occurred within 2,000 feet of the intersection of Benfield Road and Jumpers Hole Road -- and indeed within a radius of two miles of the intersection -- have been very largely those of permitted intensification of residential uses, such as changes from agricultural use to cottages or manor type houses, with a consequent large increase in population.  The record fully supports Judge Beardmore's finding that "If anything, the neighborhood has become more residential since 1962."

   [*398] To support the argument that the great growth in residential [***9]use surrounding the property involved raises a need for a shopping center that should be satisfied by the rezoning sought, the appellants rely on various commercial and public changes that have occurred since 1962.  First is the intensification of light commercial uses along the south side of Benfield Road running east from Jumpers Hole Road for perhaps 1500 feet, such as the building of a Seven-Eleven Store; second is the reclassification from light commercial to heavy commercial of the lot on the south side of Benfield Road just east of Jumpers Hole Road to permit the building of a filling station; third, the rezoning to light commercial of a lot on the east side of Jumpers Hole Road north of Benfield Road to permit the building -- not yet realized -- of an Acme Store; and, finally, the building by the County of a 1,000,000 gallon water tank 500 feet north of Benfield Road on Jumpers Hole Road and of a school well beyond the tower which fronts on another road.  Discussing them in inverse order, the tank and the school are uses legislatively permitted as compatible in a residential area; we so held in France v. Shapiro, 248 Md. 335, 343:
 
"It is well recognized that the[***10] location in a residential zone of improvements of a character permitted by the ordinance, even although not necessarily compatible with a residential development, is not the type of change of character of a neighborhood which will justify reclassification. Agneslane, Inc. v. Lucas [247 Md. 612] (fire house); Baker v. Montgomery County Council [241 Md. 174] (school); Levy v. 7 Slade, Inc., 234 Md. 145 * * * (synagogue, school, parking lot, powerhouse); Kaslow v. Mayor and Council of Rockville, 236 Md. 159 * * * (church); Montgomery County v. Ertter, 233 Md. 414 * * * (armory, motor shed, paved area)."

   As far as the building of the second gasoline station [*399] on the south side of Benfield Road east of Jumpers Hole Road -- there was one on the north side in 1962 -- and the rezoning for the Acme store are concerned, we paraphrase the Court's words [**377] in Whittle, p. 46 of 211 Md., as follows:

   "The other [change claimed to be significant] is the addition of one filling station [and one store site] in an area already commercial and already containing [one] such [station] [and various stores] * * *.  [T]he area is residential. [***11] * * * [N]one of the new commercial developments along the * * * [r]oad * * * have had any effect upon the residential character of the neighborhood where the protestants live.  That one new filling station [and one more store site] * * * at or near a busy intersection already having [one filling station and various stores] does not, in our judgment, show any substantial change or increase in commercialization between [1962 and 1969]."

   The intensification in use of the commercial strip along Benfield Road likewise did not effect any real change in the character of the land to the west or the south or north or east, which since 1952 has been almost entirely residential, with the four corners of the intersection at Benfield Road and Jumpers Hole Road and a strip along Benfield Road for a short distance to the east a commercial enclave in its midst (although the two corners to the west have not been actually developed).  As far as need is concerned in relation to increased population, in some six cases at least in the last two years, we have held that intensification, even heavy intensification resulting in large population growth, of residential uses adjacent to or surrounding[***12] a residential property sought to be rezoned to commercial use (often for a shopping center) will not of itself justify or support the commercial rezoning, and that the matter of need becomes pertinent only after sufficient change to permit rezoning to commercial has been [*400] shown.  See Wright v. McCubbin, 260 Md. 11, 271 A. 2d 365 (1970); Wells v. Pierpont, 253 Md. 554; Miller v. Abrahams, 257 Md. 126; Chapman v. Montgomery County, 259 Md. 641; Hardesty v. Dunphy, 259 Md. 718; Cabin John Ltd. v. Montgomery Co., 259 Md. 661; Harley v. Aluisi, 259 Md. 275.
 
   Judge Beardmore was right in holding the rezoning by the Board to be arbitrary, capricious and illegal.

   Order affirmed, with costs. 

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