text:
    EDWARD A. COPELAND and WILLIE D. COVINGTON v. STATE OF MARYLAND
    [No. 1055,
    September Term, 1974.1

      Decided July 1, 1975.

    The cause was argued before Thompson, Gilbert and Moore, JJ.

      Stanley H. Miller, Assigned Public Defender, for appellants.

      James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, James I. Keane, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Edward Wenck, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The facts arising in the trial that led to this appeal are best characterized as bizarre. The record reveals that Willie D. Covington and Edward A. Copeland were called to trial on September 9,1974, in the Criminal Court of Baltimore, to answer to charges of robbery with a deadly weapon and related offenses. As a result of the trial the appellants each received sentences of forty years.

When the case was called an Assistant Public Defender advised the court, on behalf of himself and another Assistant Public Defender, that the appellants had

“... expressed extreme displeasure with [both Assistant Public Defenders]; made motions in court, both written and oral, to discharge both of us and have failed and refused to cooperate with counsel for defense in preparation of the defense. This morning I went to see Mr. Covington and Mr. Copeland, I was greeted with a rash of profanity, and was told by both gentlemen that they did not want me to represent them.”

The transcript also indicates that one of the attorneys had a beverage thrown at him by one of the appellants. The trial judge inquired as to why the appellants did not want the aid of the two particular Assistant Public Defenders, and the appellant, Covington, responded, “I don’t want them even around me.” The appellants said they did not know what the charges pending against them were, and they did not even know why they were in court. The trial judge then allowed the two Assistant Public Defenders, in open court, to strike their appearance from the case. The indictments were read to the two appellants who expressed their desire to have a lawyer represent them, and they asked for time to obtain private counsel.

It appears from what the appellants told the trial judge, that the Assistant Public Defenders, with whom the appellants took such sharp vocal exception in this case, had represented the appellants in a prior trial which terminated with the appellants receiving fifteen year sentences. The appellants articulated that counsel had not only not done a proper job, but were incompetent, had failed to consult with appellants and were unsuited to conduct the appellants’ defense. While the appellants recognized that they could not pick and choose their own counsel, English v. State, 8 Md. App. 330, 259 A. 2d 822 (1969), they, nevertheless, stated that they had not conferred with counsel relative to this case, had not been advised that it was coming on for trial and, in view of the bitter feeling that had arisen between counsel and the appellants, it was deemed by appellants that their best interest required that the two Assistant Public Defenders not be associated with the case. The record further reveals that a letter to Covington from the Legal Aid Bureau, dated July 23, 1974, was read into evidence. The letter states that the Assistant Public Defender assigned to represent Covington did not want to represent him on appeal from the prior conviction.

The trial judge, a District Court judge specially assigned to the Supreme Bench of Baltimore City, granted the postponement. The State was very dissatisfied with the postponement, claiming that it was ready to proceed to trial. Someone sought out the Chief Judge of the Supreme Bench who, armed with his statutory authority, declined to allow the postponement. Md. Ann. Code art. 27, § 591 (a) provides in pertinent part:

“The day established for the trial [of a criminal case] shall not be postponed except for extraordinary cause sought by the moving party and only with the permission of the administrative judge of the court where the matter is pending.”

The trial judge then rescinded his prior granting of the postponement and ordered the appellants to stand trial immediately, notwithstanding the fact that appellants were without the assistance of counsel.

The trial court then announced, the appellants having elected a jury trial, that the selection of a jury would be undertaken. Appellants were afforded an opportunity to exercise peremptory challenges and challenges for cause. Each appellant repeatedly stated that he knew nothing about challenging a jury, and that he desired the services of an attorney. After a panel of twelve jurors had been tentatively selected, the appellants were asked if the jury was acceptable. Appellants responded that the jury was not acceptable, nor was the procedure being employed, because appellants needed the guiding hand of legal counsel. The trial judge patently interpreted the appellants’ comments as the exercise of peremptory challenges and accordingly struck all twelve prospective jurors. Thereafter, the court began to repeat the selection process in an attempt to pick a jury. When the tentative selection of the sixth juror had occurred, that juror, referring to the proceedings taking place within the courtroom in his presence, spontaneously exclaimed, “I think it [the requiring of appellants to stand trial without counsel] is unjust, that something is definitely wrong.” The judge said, “I did not hear you.” The juror repeated, “I said it is unjust and something is definitely wrong that I wouldn’t want to be a juror.” The trial judge excused the juror and, after a bench conference with the Assistant State’s Attorney, apparently out of earshot of the appellants, the court allowed the Assistant State’s Attorney to pose the following question to the jury: “Are there any other members who feel they could not sit as a member of the jury panel as did the last gentleman?” Twenty-three additional prospective jurors were excused when they indicated that they were in agreement “that something is definitely wrong.” We share their view that “something [was] definitely wrong”; we reverse the judgments and remand the matter for a new trial.

This Court in a series of cases has been confronted with questions of waiver of counsel, trial without counsel and attempted efforts to discharge counsel at the “eleventh hour” in order to obtain a postponement. See Bruce v. State, 26 Md. App. 683, 338 A. 2d 316 (1975); Brown v. State, 27 Md. App. 233, 340 A. 2d 409 (1975); Bethea v. State, 26 Md. App. 398, 338 A. 2d 390 (1975); Renshaw v. State, 25 Md. App. 270, 333 A. 2d 363 (1975); Guarnera v. State, 20 Md. App. 562, 318 A. 2d 243 (1974); English v. State, supra; Jennings v. State, 8 Md. App. 321, 259 A. 2d 547 (1969). We have made clear that while an accused is constitutionally entitled to the services of counsel, he has no right, if his counsel is appointed at the expense of the State, to pick and choose his attorney. English v. State, supra. See also Conway v. State, 15 Md. App. 198, 289 A. 2d 862 (1972).

The State argues that appellants had ample opportunity to obtain counsel, and that our decision in Guamera, supra, is dispositive of the matter now before us.

In Guamera, we said at 573:

“. . . [T]hat, ‘The granting or denial of a continuance is within the sound discretion of the trial court’ was modified by § 591 which vested the exclusive power to postpone the trial date of a criminal case in the administrative judge of the court. Even the power of the administrative judge to postpone is not entirely discretionary, but may be exercised only ‘for extraordinary cause shown by the moving party.’ ” (Footnote omitted).

We went on to state:

“When the Legislature has expressed the will of the people by saying that the date established for the trial of a criminal case shall not be postponed except for extraordinary cause and has denied all judges except the administrative head of the court authority to exercise even that curtailed power, the message should be loud and clear to the bench, the bar, parties, witnesses, and to the public, that trials must not and will not be postponed for ordinary reasons.” 20 Md. App. at 573-74.

We noted at 574 that:

“We cannot conceive that extraordinary cause for postponement of a trial can be shown when the reasons advanced for it are not only foreseeable, but are, at best, the fault of the moving party, and may well be the very result sought for by a cunningly devised strategy. Guarnera’s excuses were, as Judge Watts observed, ‘on some ears ludicrous.’ He clearly demonstrated that he did not want, and declined to accept, the judge’s repeated offers to help in assuring the assistance of counsel in his defense, and the opportunity to bring into court a witness Guarnera claimed he wanted.”

We think Guarnera to be inapposite to the instant case. There, Guarnera was on bail, did not cooperate with his court appointed counsel and then claimed his counsel was unprepared. We gleaned from the record in Guarnera that he had set out on a carefully calculated course designed to achieve delay. We do not see such facts in the present record.

Moreover, the significant factor which readily distinguishes the instant case from Guarnera is the letter, purportedly from the Legal Aid Bureau to the appellant, Covington, which apparently offered him the prospect of new counsel. The letter, dated July 23, 1974, reads in pertinent part:

“I have spoken with Mr. [Assistant Public Defender], he said that he does not want to represent you for an appeal and that as soon as your appeal is noted by the Clerk of the Court the Public Defender’s Office will send an investigator to see you. The investigator will also ask you about your trial and you will have your opportunity to tell your story about Mr. [Assistant Public Defender’s] handling of the case.
You will also be asked if you want a different attorney. ” (Emphasis supplied).

Covington represented to the trial judge that sometime after receipt of the letter an investigator came to see him, and that Covington expressed a desire to obtain new counsel.

The quoted letter created, in our view, a situation that justified appellants’ believing that new counsel would have been supplied, and thus appellants need not have sought privately retained attorneys.

Although the record is not clear with respect to Copeland, we glean therefrom, that he, throughout the proceedings, was infected with “me-too-ism”, in that each time Covington spoke, objected, or in any matter articulated within the courtroom, Copeland would simply state that he agreed with Covington. Although the record does not indicate that Copeland also received a letter from Legal Aid, we do think it clear that his displeasure and dismay with his former counsel was nonetheless as intense as Covington’s, and that it would be patently unfair to endeavor, on the facts now before us, to separate the two appellants.

The instant case presents a factual situation that requires us to hold that this is the “extraordinary cause” referred to in § 591 and in Guarniera and Jennings, both swpra. In any case involving a request for postponement in order to obtain new counsel, the problem arises of balancing that request against the orderly administration of criminal justice. Judge Mason in Brown, supra, stated the matter succinctly when he said:

“We are not unmindful of the fact that many defendants, for surface or hidden reasons, use every artifice or stratagem to unduly delay going to trial. Nevertheless, the orderly and efficient administration of the court system, and, the praiseworthy purpose of prompt and expeditious trials of criminal cases, cannot outweigh the constitutional right of the appellant to be represented by counsel. These are not incompatible goals, and both can be accomplished within the framework of the statute [Md. Ann. Code art. 27, § 591 (a)] and Md. Rule 719 which provides for the appointment of counsel.” (Emphasis supplied).

The reasons for the requested postponement in the case now before us, as the trial judge initially recognized, were embraced within the meaning of the extraordinary. Lest there be any doubt, however, we are not to be misconstrued as retreating from Guarnera, supra. We, in fact, specifically reiterate our holding in Guamera, but distinguish it in the light of the “extraordinary cause,” presented by the facts of this case.

Judgments reversed.

Case remanded for a new trial.

      . The trial judge requested, over objection from the appellants, that the two Assistant Public Defenders remain in the courtroom during the trial in order that they might offer such legal assistance as was desired by the appellants.

      . Since appellants were required to represent themselves the propriety of holding the bench conference between the State and the judge, without the appellants, is questionable. See State v. Tumminello, 16 Ma. App. 421, 435-38, 298 A. 2d 202 (1972); Md. Rule 775.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    ROOSEVELT E. MURRAY v. STATE OF MARYLAND
    [No. 1071,
    September Term, 1974.]

      Decided July 1, 1975.

    The cause was submitted on briefs to Moylan, Menchine and Lowe, JJ.

      Submitted by Stephen L. Miles, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Leroy Handwerger, Assistant Attorney General, Charles E. Wehland, State’s Attorney for Howard County, and Lisa Mervis, Assistant State’s Attorney for Howard County, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

While confined at Patuxent Institute Roosevelt E. Murray assaulted a female employee, a fact he later admitted at trial. The information charged that the incident occurred April 28, 1973; however, an information charging assault and battery was not filed until May 3, 1974. Trial was held six months later on November 6, 1974.

His appeal from a conviction by a jury of the Circuit Court for Howard County, presided over by Judge James Macgill, questions nothing of substance in the trial at which he was convicted of assault. His complaints rest upon denial of two preliminary motions and the absence of procedural advice from the judge of his right to testify or to decline to do so. Since we will reverse on the question of limitations we need not discuss the other two questions which were without merit in any event.

Penitentiary Offense

The issue with which we find ourselves in accord is appellant’s contention that the statute of limitations ran out five days before he was charged with assault, whether measured in terms of Md. Code, Art. 57, Sec. 11:

“No prosecution or suit shall be commenced for any fine, penalty or forfeiture, or any misdemeanor, except those punished by confinement in the penitentiary, unless within one year from the time of the offense committed; except that prosecutions for violations of Secs. 110 and 111 of Article 66V2 of the Code, as amended from time to time, may be brought within two years from the time the offense is committed.” [Emphasis added],

or its revised version now in Cts. Art. 5-106:

“(a) One year. — Except as provided by this section, a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed.”

Honed to a fine edge, appellant’s argument is that assault does not fall under the exception because it is a common law crime for which there is no statutory provision for punishment in the penitentiary. He claims that

“because there is no statutory provision explicitly setting the punishment for those convicted of assault and/or battery, they are both non-penitentiary misdemeanors, and as such, are subject to the one (1) year statute ...” citing Archer v. State, 145 Md. 128 and State v. Michael, 2 Md. App. 750.

The State contends that the exception to the Sec. 11 one year limitations period applies to any misdemeanor the punishment for which may be confinement in the penitentiary. In order to invoke the exception, it is sufficient in the State’s view that confinement in the penitentiary be among the penal alternatives for the offense charged. It reminds us that in Davis v. State, 18 Md. App. 378, 383 we said:

“Code (1957) Art. 57, Sec. 11 provides a statute of limitations of one (1) year for all misdemeanors except those punishable by confinement in the penitentiary.” [Emphasis added].

And in Duvall v. State, 5 Md. App. 484, 488 we wrote:

“More specifically there is authority holding that Section 11 of Article 57 which limits prosecutions for misdemeanors ‘except those punished by confinement in the penitentiary’ to one year is properly interpreted by viewing the word ‘punished’ to mean ‘punishable’ by confinement in the penitentiary. See Schaumloeffel v. State, 102 Md. 470. Accordingly, while the crime of escape need not be punished by confinement in the penitentiary (incarceration in jail or the House of Correction also being authorized), it is in any event punishable by confinement in the penitentiary, and therefore not barred from prosecution after one year under the statute.”

The State has mistakenly extended the language in this Davis dictum beyond its factual context and constructed a semantic strawman thereby. The holding in Duvall was confined to statutory punishments for misdemeanors where the statute prescribed penitentiary confinement as one alternative among others available to the sentencing judge. In l^iat context, we held that it did not matter that, under the terms of the statute, the defendant might not actually be sentenced to confinement in the penitentiary, as long as the statute made some express provision for the penitentiary alternative. If the statute so provided, it made the defendant “punishable” by penitentiary confinement and the statute of limitations did not apply.

The Court of Appeals spoke on the precise question in Archer, 145 Md. at 136-138. It dealt with the effect of a statute upon Art. 57, Sec. 11 and consequently had to pass the threshold question we now face, i.e., whether a common law misdemeanor for which sentence might be directed to be served at the penitentiary falls under the penitentiary exception to Sec. 11. The Court said

“Common law misdemeanors are not ‘punished by confinement in the penitentiary’ in the sense of the above section . ...” Id. at 136.

After deciding that the statute in question (allowing the prison board to transfer persons from house of corrections to penitentiary and vice versa) did not bring all misdemeanors “punished by confinement in the penitentiary” within the exception of Sec. 11, the Court said:

“We are clearly of the opinion that section 11 of article 57 means now just what it meant before the passage of the Acts of 1916 and 1918, and that the prosecution of persons charged with conspiracies or other misdemeanors not ‘placed along with felonies’ by the grades of punishment fixed for them by the common law or by statute, must be begun within one year from the date of the conspiracy.”

While the language of Archer upon which we rely appears as judicial dictum it was so authoritatively stated that we followed it in Michael, 2 Md. App. at 753 stating that Archer

“held that a conspiracy was a common law misdemeanor for there was no prescribed place of confinement and therefore the one year limitation period under Article 57, Section 11 was applicable.” [Emphasis added].

We think it clear that Archer and Michael expressly held that as to common law misdemeanors for which there was no prescribed place of confinement or express statutory classification designating the infamous punishment of a penitentiary offense, Cf. Ex Parte Mills, 135 U. S. 263, the exception in Md. Code, Art. 57, Sec. 11 is not applicable.

In its revision of Art. 57, Sec. 11 now in Cts. Art., 5-106 (a), the Legislature has clarified the issue by expressly limiting the exception to misdemeanors “made punishable by confinement in the penitentiary by statute . . . .” [Emphasis added]. The Revisor’s Note explaining what changes were made states in pertinent part:

“Subsections (a) and (b) are new language derived from Article 57, Sec. 11. This section applies to all misdemeanors including common-law misdemeanors but excluding misdemeanors made punishable by imprisonment in the penitentiary by statute.”

These notes were part of the legislation enacting the revisions explaining to the legislators not only what changes were effected but what their expressed intention was in changing the wording. Here the language of the act as well as the Revisor’s Note makes it clear that the Legislature intended for the future that which we here read Duvall and Archer as having done in the past.

Conclusion

The information appearing to be the first prosecutorial act, having been filed five days beyond the one year statute of limitations the State’s right to proceed was terminated. Appellant’s motion to dismiss the information should have been granted.

Judgment reversed.

Information dismissed.

Costs to be paid by Howard County.

      . Although the trial judge in his opinion was steered off course by the broad terms of Duvall, he sensed a provoking question in the Archer language. He said: %
      “The question, I think, is whether the common law fixed a grade of punishment for those offenses, that is, of assault and battery. Maryland under the common law does permit and authorize punishment for assault and battery by confinement in the penitentiary, and I guess one of the leading cases is Roberts vs. the State, 206 Md. 246.”
      Roberts does not directly authorize confinement to the penitentiary for assault and battery although its general discussion of the absence of a common law time limitation on confinement could be read as supporting the penitentiary argument. We think Duvall and Archer together say what was said in Michael, i.e., that penitentiary confinement must be prescribed (even if alternatively) not merely permitted sub silentio.

      The use of the phrase “placed along with felonies” enclosed in quotes but without attribution, sheds some additional light on the Archer court’s reasoning. An “infamous crime” at common law, whether or not a misdemeanor, was considered to be one which, among other things, “rises at least ‘to the grade of felony’ ” Garitee v. Bond, 102 Md. 379, 384 citing Evans v. Bonner, 2 H. & McH. 377. (E.g., perjury was a common law misdemeanor although it carried the brand of infamy, the penalty for which was “antiently death; afterwards Banishment, or cutting out the tongue; then forfeiture of goods and now [in Blackstone’s time] it is fine and imprisonment and never more to be capable of giving testimony.” Perkins Criminal Law (2nd ed.), 453 citing 4 Bl. Comm. 138). It was thus that common law “ ‘placed [misdemeanors] along with felonies’ by the grades of punishment fixed for them by the common law . . . .”

      . We note that the Attorney General has also cited Archer in 55 Op. Att’y. Gen’l. 377, 378 for the premise that the intent of the exception in Sec. 11, was limited to removing from the one year limitation those misdemeanors “ ‘classified’ as felonies.”


author: Sweeney, J.,

text:
    CHARLES E. GOWL et al. v. ATLANTIC RICHFIELD COMPANY
    [No. 676,
    September Term, 1974.]

      Decided July 3, 1975.

      The cause was argued before Thompson and Lowe, JJ., and Robert F. Sweeney, Chief Judge of the District Court of Maryland, specially assigned.

      Richard D. Payne for appellants.

      Cornelius F. Sybert, Jr. and Louis A. Becker, with whom were Sybert, Sybert & Nippard on the brief, for appellee.
   Sweeney, J.,

delivered the opinion of the Court.

This is an appeal from an order of the Circuit Court for Howard County (Macgill, J.) reversing the decision of the Board of Appeals for Howard County, and permitting the construction of a facility for the storage of bulk petroleum products. The land in question is a tract of 19.27 acres, zoned M-2 heavy industrial, which fronts on Hanover Road in Howard County, within 500 feet of the Howard County-Anne Arundel County division line.

Under M-2 zoning, bulk storage of gasoline, fuel oil, bottled gas, or liquefied petroleum is permitted as a matter of right, provided that the maximum above ground storage does not exceed 30,000 gallons for each 20,000 sq. ft. of lot area. Bulk storage of petroleum products in excess of those limitations requires the granting of a special exception by the County Board of Appeals. That Board, before approving such a special exception, must find that the proposed use “would not menace the public health, safety, morals or general welfare of the community.” Section 30.01 of the Zoning Code of Howard County.

The Board of Appeals held five public hearings on the petition for the special exception, beginning on January 15, 1973, and concluding on March 20, 1973. On July 9, 1973, the Board issued a Decision and Order denying the petition, and that denial was appealed to the Circuit Court for Howard County. The Appellants in this case were protestants before the Board, who intervened as appellees in the Circuit Court proceeding.

Twenty-three witnesses testified before the Board, seven for Atlantic Richfield and sixteen for the protestants. Additionally, Atlantic Richfield introduced 20 exhibits at the Board of Appeals proceeding and the protestants, in their turn, submitted 15 exhibits.

It is obvious from his Memorandum Opinion and Order that Judge Macgill carefully reviewed the voluminous record made in the Board of Appeals. After his review of the entire record, Judge Macgill concluded therefrom that “the findings of the Board were not supported by substantial probative evidence, [and that] the decision of the Board denying the application must be reversed.”

In denying the petition for the special exception, the Board of Appeals made the following findings:

1. That the proposed use would adversely affect the surrounding and vicinal properties by creating undue traffic congestion on a presently inadequate and hazardous road network and would result in a situation which would menace the public safety and jeopardize the lives of people residing, or traveling, in the area and their property.
2. That the proposed area would be within five hundred feet of a residential district which is prohibited by [Section] 30.01 of the zoning regulations of Howard County.
3. The increased vehicular traffic that would be produced both in volume and type would interfere with the reasonable enjoyment of people in their homes.
4. The support structures for the proposed pipeline from the tanks to the loading area would be within the floodplain and as a result would provide a potential danger to the surrounding properties, as well as menace the general welfare.
5. The water necessary for fire protection and for consumption by the employees is not presently available.

In his Memorandum Opinion, Judge Macgill carefully considered each of these findings, and examined in detail the testimony allegedly supporting each of the findings. Our review of the record leads us to concur in his view that the record is devoid of facts to support the Board’s decision to deny the application for a special exception.

Three of the five findings of the Board may be dealt with summarily. First is the Board’s finding that the application should be denied because the proposed area would be within 500 feet of a residential district, thereby violating the zoning regulations of Howard County. Although it is undisputed from the record that the borders of the property under consideration reach to a point within 500 feet of a residential district, this fact, standing alone, was not sufficient to authorize the denial of the application. Judge Macgill sets out the view, which we share, that the proper test to be applied is whether the portion of the property to be used for the proposed purpose is within 500 feet of a residential area. According to the voluminous plats and other exhibits submitted to the Board, and according to the testimony of Dr. Dorothy A. Munsey, an expert witness for the Appellee, the facilities to be actually utilized on the premises are a minimum of 550 feet from any residential district. Section 30.01 of the zoning regulations of Howard County provides that “no land or building shall be used for any of the following uses within 500 feet of any Residential District.” (Emphasis supplied). Since virtually all of the evidence before the Board was to the effect that none of the land within 500 feet of the nearest residential district would be used for the bulk storage of oil and petroleum products, we believe it immaterial that the perimeter of the property encroaches on the 500 foot line of demarcation. As all structures and tanks constructed on this property will be well buffered from the surrounding property by open unused land, we find no violation of the only obvious intent and purpose of the zoning regulation.

Similarly devoid of a substantial factual basis was the Board’s finding that “[t]he water necessary for fire protection and for consumption by the employees is not presently available.” The record before the Board clearly showed that all necessary water is available within 400 feet of the property, that an extension of the water main to the subject property could be arranged, and that the Appellee has plans to enter into a developer’s agreement to extend that water line. Testimony before the Board indicates that only 19 persons would be employed on these premises, including supervisory personnel. Water sufficient for the needs of such a limited number of persons could probably be provided from private contractors. Whether that is feasible or not, however, we agree with Judge Macgill that it was unreasonable for the Board to ignore the testimony that an eight inch city water main now reaches within 400 feet of the premises. The Appellee, before commencing the use of these premises for its intended purpose, must comply with all State and local building codes and safety standards and we are entitled to assume that the necessary permits will not be granted until the water connection is made and adequate fire protection provided.

In considering the Board’s finding that “[t]he support structures for the proposed pipeline from the tanks to the loading area would be within the floodplain and as a result would provide a potential danger to the surrounding properties, as well as menace the general welfare”, Judge Macgill said:

“The Board’s finding . . . cannot be faulted as an abstract proposition. There was, however, testimony that the likelihood of such a danger was minimal. It should be borne in mind that all uses of this nature present a ‘potential’ danger but if the possibilities rather than the probabilities of danger are good grounds for denying permits for such uses, it is difficult to see how these uses could be permitted anywhere, regardless of what steps might be taken to minimize the potential dangers accompanying them.
“In this connection the following quotation from Deen v. Baltimore Gas and Electric Company, 240 Md. 317, at 330, appears pertinent: ‘Appellants assert that it was error for the Board to fail to consider the future effects which the high tension wires would have on the health, safety and general welfare of the locality “which could be reasonably anticipated in a normal course of its development”. This factor was without relevance in this case, because there was no evidence produced at the hearing which would show that the effect of high tension wires on the future health, safety and welfare of this area would be in any respect different than its effect on any other rural area. Section 502.1 implies that the effect on health, safety or general welfare must be in some sense unique or else a special exception could never be granted in such an area for the above ground location of high tension wires. The only evidence as to future conditions was testimony revealing the possibility of future development of this land. Such a possibility alone does not come close to showing any future deleterious effect upon the public health, safety or general welfare.’ ”

In support of Judge Macgill’s position, we find in the record the testimony of Walter H. Geibel, another expert for Appellee, that the pipelines in question would more than likely be four or five feet above the highest known liquid level in the 100 year floodplain, and that the support of the facility would probably be twice as strong as the waters of any imaginable flood. Appellee, in its brief, points out that bridge abutments are built on floodplains as a matter of course, and we agree with Appellee that it is “beyond reason” to suppose that adequate engineering does not exist to provide for the safe construction of the pipeline across the floodplain area.

More troublesome to Judge Macgill and to us are the findings of the Board concerning the increased vehicular traffic which would occur if the application for a special exception were to be granted. The Board, in its findings one and three, held:

1. That the proposed use would adversely affect the surrounding and vicinal properties by creating undue traffic congestion on a presently inadequate and hazardous road network and would result in a situation which would menace the public safety and jeopardize the lives of people residing, or traveling, in the area of their property.
3. The increased vehicular traffic that would be produced both in volume and type would interfere with the reasonable enjoyment of people in their homes.

Judge Macgill found that the evidence before the Board was “certainly substantial, and more than substantial, that the access roads to the property, in their present state, were inadequate to service the proposed use or, presumably, any substantial industrial use, and that the presence of any number of trailer-trucks on these roads would create a hazard.” Judge Macgill also noted, however, that there was evidence before the Board that the widening and upgrading of the South Hanover Road was reasonably possible of fruition in the foreseeable future, but he “does not suggest that the action of the Board in this case should be reversed simply because the Board could have found that an adequate access road was reasonably probable of fruition in the foreseeable future, or because the Board could have, as a condition precedent to construction, required that South Hanover Road be upgraded to serve the industrial area through which it runs.”

Judge Macgill went on to point out that in rejecting this application because of possible increase in vehicular traffic, the Board was making a comparison between existing traffic patterns around the presently undeveloped property and traffic patterns that could arise if the proposed use were to be permitted, without considering at all that an even greater volume of traffic than that anticipated for the storage facility could arise from any of several uses for which the property is now zoned and for which no special exception would be required. He noted that under the present M-2 zoning, the subject premises could be used for aircraft manufacture or assembly; automobile or truck assembly plants; food manufacturing, packing or processing plants and bituminous road material mixing plants.

We believe it obvious that any one of these permissible uses of these premises could result in increased vehicular traffic of greater volume and density than that which is considered probable for the bulk storage facility, and we do not believe it arguable that it is any more desirable to have a concrete or bituminous mixing vehicle drive past one’s home than a gasoline or fuel oil tank truck.

We think it fully appropriate that Judge Macgill found the proper test to be a comparison between the traffic problems that might arise under the proposed use and traffic problems that could arise from the usage of the premises now permitted by law. We recognize that traffic impact is a sufficient basis to deny a zoning application, including an application for a special exception. Templeton v. County Council, 21 Md. App. 636, 321 A. 2d 778 (1974); Temmink v. Board of Zoning Appeals, 212 Md. 6, 128 A. 2d 256 (1956); Hardesty v. Zoning Board, 211 Md. 172, 126 A. 2d 621 (1956). But traffic impact on an application for a special exception ought to be measured against that which could arise under permissible use, and not merely on existing traffic loads around the undeveloped premises. Where, as here, the potential volume of traffic under the requested use would appear to be no greater than that which would arise from permitted uses, we believe it arbitrary, capricious and illegal to deny the application for special exception on vehicular traffic grounds.

The duty of the trial court and the duty of this Court in reviewing a decision of a board of appeals in a zoning case is the same. The courts are not permitted to substitute their judgment as to the wisdom or soundness of the action taken by the administrative body, but must confine themselves to a consideration as to whether the action was illegal, arbitrary or discriminatory. If the decision of the Board was based on fairly debatable evidence, that decision must be upheld, and only where there is no room for reasonable debate or where the record is devoid of supporting facts are the courts authorized to declare an administrative act invalid.

In Turner v. Hammond, 270 Md. 41, 310 A. 2d 543 (1973), the Court said, at 54:

“Occasionally the bar and less often the bench lose sight of the concept that the conditional use or special exception, as it is generally called, is a part of the comprehensive zoning plan sharing the presumption that as such it is in the interest of the general welfare and, therefore, valid.
“While the applicant has the burden of adducing testimony which will show that his use meets the prescribed standards and requirements he does not have the burden of showing affirmatively that his proposed use accords with the general welfare. If he shows to the satisfaction of the Board that the proposed use would be conducted without real detriment to the neighborhood and would not actually adversely affect the public interest, he has met his burden. The extent of any harm or disturbance to the neighboring area and uses is, of course, material but if there is no probative evidence of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the functioning of the comprehensive plan, a denial of an application for a special exception is arbitrary, capricious and illegal.”

Prince George’s Co. v. Meininger, 264 Md. 148, 285 A. 2d 649 (1972); Gerachis v. Mont. Co. Board of Appeals, 261 Md. 153, 274 A. 2d 379 (1971); Kirkman v. Montgomery Co. Council, 251 Md. 273, 247 A. 2d 255 (1968).

The Court has also stated that a special exception is a valid zoning mechanism that delegates to an administrative board a limited authority to permit enumerated uses which the legislature has determined can, prima facie, properly be allowed in a specified use district, absent any fact or circumstance in a particular case which would change its presumptive finding; and that the duties given the board are to judge whether the neighboring properties would be adversely affected, and whether the use in the particular case is in harmony with the general purpose and intent of the zoning plan. Rockville Fuel v. Board of Appeals, 257 Md. 183, 262 A. 2d 499 (1970); Oursler v. Board of Zoning Appeals, 204 Md. 397, 104 A. 2d 568 (1954); Montgomery County v. Merlands Club, 202 Md. 279, 96 A. 2d 261 (1953).

We concur in Judge Macgill’s view in this case that the evidence before the Board simply does not support the conclusions it reached. The findings of the Board regarding the proximity of the site to a residential district, dangers arising because a portion of the property is within a floodplain, and the nonavailability of water necessary for fire protection or consumption by the employees simply cannot be supported by the evidence presented to the Board. Although, as Judge Macgill noted, the Board could correctly conclude that the requested use would considerably increase the volume of traffic on the premises over existing traffic patterns and thereby menace the public safety or interfere with the reasonable enjoyment of people in their homes, we also agree with him that this reason would be insufficient to deny the application because similar or even more disadvantageous traffic conditions could easily arise if the premises in question were utilized for any of the lawful purposes now permitted under the heavy industrial zoning affecting this property. We believe the Board’s refusal, therefore, to permit this special exception was arbitrary, illegal and capricious.

Judgment affirmed, costs to be paid by appellants.


author: Menchine, J.,

text:
    EQUITABLE TRUST COMPANY et al. v. THE TOWSON MANOR ASSOCIATION, INC. et al., etc.
    [No. 702,
    September Term, 1974.]

      Decided July 3, 1975.

      The cause was argued before Moylan, Menchine and Moore, JJ.

      W. Lee Harrison, with whom were Weinberg & Green on the brief, for appellants.

      Gordon G. Power and RussellD. Karpook for appellees.
   Menchine, J.,

delivered the opinion of the Court.

The Towson Manor Association, Inc. and the Wiltondale Improvement Association, Inc., incorporated community associations serving two residential communities adjoining the subject tract of land, and the individual owners of certain residential properties within those communities (hereafter collectively called “Towson”) filed a bill for injunction seeking to restrain transfer of title to certain property unless alleged binding restrictions upon use of that land were incorporated in the deed. The bill of complaint was directed against Equitable Trust Company, Equitable Bancorporation and Maryland Title Guarantee Company (hereafter collectively called “Equitable”). The joint answer of the defendants denied that valid restrictions had been impressed upon the land.

The tract in question, long known as The Towson Nursery, consists of approximately five acres of land lying on the east side of York Road in Towson, Maryland, bounded on the south by Terrace Dale, on the north by Hillside Avenue and on the east by Cedar Avenue. A somewhat extended recitation of the zoning history of the tract is necessary to an understanding of the circumstances giving rise to the litigation between Towson and Equitable.

In 1970 the subject tract was classified DR-16 (16 density unit per acre). In that classification, construction of an office building was permissible only by special exception. A petition was filed seeking a special exception for an elevator office building with a right to use a temporary, removable structure on the land pending its completion. Towson opposed the petition. The petition was denied by the Zoning Commissioner. Equitable appealed to the County Board of Appeals for Baltimore County. That appeal having become moot by reason of the passage of a county wide comprehensive rezoning ordinance, it was, on motion, formally dismissed on August 24,1972.

In early 1971 the Baltimore County Council was engaged in giving consideration to that comprehensive rezoning ordinance. Equitable had requested the County Council to grant a BL (business local) classification. Under BL classification, use of the property for an elevator office building would have been permissible without special exception. Towson opposed the request. The Planning Commission recommended continuance of the DR-16 classification.

Webster C. Dove was a member of the Baltimore County Council for the district that included the subject land. As the result of actions taken by Mr. Dove, the ultimate zoning classification to be assigned to the subject property had been left open, to be fixed on the date of the final passage vote of the Council, scheduled for March 24,1971.

Such was the status of the subject property on March 10, 1971 when F. E. Chippendale, a Vice President of Equitable Trust Company, addressed a letter to the officers and members of Towson Manor Association proposing resolution of “the zoning problems associated with the parcel of land * * The letter offered to bind Equitable to numerous restrictions upon use of the property by deed.

Upon receipt of the Chippendale letter of March 10,1971, a general meeting of Towson Manor Association was called and held, with a resolution passed that the course suggested by Chippendale was acceptable if the proposal would be “strengthened” by clarifying language. Thomas F. Mullen, a member of a committee of Towson Manor Association, thereafter notified Equitable of Towson Manor Association’s counter-proposal. Mullen carried the letter of March 10, 1971 back to Chippendale with the clarifying language noted on the original of that letter. This occurred on the morning of March 11, 1971. Chippendale at that time verbally agreed to incorporate the clarifying language in a later letter (subsequently accomplished in the letter of March 17, 1971, infra). With such verbal assurance, Mullen telephoned Councilman Dove, advising him that Towson Manor Association now supported Equitable's request for BL zoning. Chippendale for Equitable then on March 17, 1971 addressed to the officers and members of the Towson Manor Association the following letter:

“The purpose of this letter is to set forth the things that The Equitable Trust Company, including any wholly-owned subsidiary or any alternate designee-purchaser, of The Equitable Trust Company, is willing to do and covenant in deed accordingly, in order to resolve the zoning problems associated with the parcel of land containing approximately five (5) acres at the southeast corner of York Road and Hillside Avenue together with the proposed improvements to be placed thereon.
“It is our understanding that because of various constraints contained in the proposed revisions to the zoning regulations, as they apply to the proposed zoning of the subject property, the most compatible zoning for the purposes involved seems to be Business Local (BL). However, the residents living in the neighborhood are gravely concerned by the fact that the zoning permits many retail and commercial uses which they feel are very objectionable in the interest of maintaining a desirable residential community. You have, therefore, asked us if we are willing to impose certain restrictions and requirements to be observed in the development of the land in the event the land is zoned BL, said restrictions and requirements to be recorded and run with the land for a twenty-year period after which they will be null and void. It must be understood, of course, that in the event the County, State or Federal Government should have requirements that would conflict with any of the following items, then the County, State or Federal requirements would take precedence.
“We must also stipulate that The Equitable Trust Company is not prepared to start construction of the proposed office building immediately, and may delay doing so for some time in view of the tremendous amount of office space that will soon be available in the various buildings now under construction in the Towson area. However, in order to retain the existing State and Federal approvals to operate a branch bank at this location (and to comply with the banking regulations as to ownership of this property), The Equitable Trust Company must promptly erect a suitable building to house a branch bank and open same for business. It is our intent to install a demountable type building similar to that used by the Maryland National Bank on Painters Mill Road at Music Fair Road in Owings Mills.
“The proposed deed restrictions are as follows (subject to the interim use set forth above):
“(1) This parcel to be improved only with an office building together with parking facilities for the use of the occupants and visitors in the office building. Said building not to exceed eight floors plus a ground floor, or a total of nine floors in all. Said building to be so situated and designed so as to provide for ingress and egress from and to Terrace Dale Road (as proposed to be widened) and from and to Hillside Avenue (as proposed to be widened) as illustrated on the ‘Plat to Accompany Petition for Special Exception With Yard & Height Variances and a Parking Permit in a Residential Zone, Vicinity York Road and Hillside Avenue,’ dated November 30, 1970, and prepared by Matz, Childs & Associates, and on the preliminary plans entitled ‘Proposed Office Building 7800 York Road, Towson, Maryland, for Equitable Trust Company,’ prepared by Bonnett and Brandt, Architects and Engineers, dated 12/10/69 and 2/16/70, and further identified as Drawing No. P-1, P-2 and P-3.
“(2) The building is to be occupied by business offices which shall be construed to include such activities as an insurance agency, stockbrokers’ offices, etc. All retail businesses (other than banking facilities and services conducive to the convenience of the tenants in the building, such as a cafeteria, duplicating and mimeographing, for the exclusive me of the tenants and their invitees) shall be excluded. Specifically, it is the express intent of this agreement to exclude all of the uses enumerated in Section 230 of the present zoning regulations except those relating to parking and the uses mentioned above.
“(3) Signs shall be limited to the following:
“(a) One sign indicating the presence and location of the banking facility. To be on the west wall of the building, visible only from York Road. If illuminated, it is to be the non-flashing type.
“(b) One sign indicating the name of the building. In this connection it should be noted that it is quite possible the building may be named after the principal tenant as an inducement to become a tenant in the building. To be located on the west wall of the building, visible only from York Road. If illuminated, it is to be of the non-flashing type.
“(c) One sign indicating the street address of the building, i.e., 7800 York Road.
“(d) Service signs giving directions to the bank’s drive-in facilities and building delivery facilities. If lighted, to be non-flashing and to be lighted only during those periods when bank and/or building delivery facilities are open for use.
“(e) Entrance, exit and traffic direction signs as needed to direct and control the movement of motor vehicles into and out of the driveways and parking areas.
“(4) Lighting: The parking area and driveways are to be properly lighted to promote the safety and convenience of tenants, employees and invitees of the building. However, only low level shielded lights (not exceeding 12 feet in height) shall be used, and shall be shielded so as not to shine into neighboring houses.
“(5) Screening: At the time the office building is built, (a) a six-foot high stockade type wooden fence shall be installed along the eastern boundary of the property where it abuts the residential properties facing on Cedar Avenue. Existing trees within three feet of this boundary line shall not be removed, (b) Dense hedging and trees shall be planted along the boundaries formed by Hillside and Cedar Avenues.
“It is our further understanding that if you find the contents of this letter acceptable, you will promptly notify the appropriate County officials that you support our request for BL zoning, [provided this letter is] and the foregoing mil be complied with by The Equitable Trust Company accordingly”

(Except for the deletion of the words shown in brackets and the addition of the words shown in italics, the Chippendale letters of March 10 and March 17 were identical.)

On March 22, 1971, J. C. Bradley, President of The Towson Manor Association addressed a letter to the Baltimore County Council reading as follows:

“Enclosed is a copy of a letter sent to The Towson Manor Association. The letter contains a list of restrictions and limitations to be imposed on the improvement of the lot located on the southeast corner of York Road and Hillside Avenue in Towson by the Equitable Trust Company. Further, it has been stated by Equitable Trust pending their purchase of the lot that they are willing to record these restrictions in a covenant to the deed for a period of twenty (20) years.
“Under these conditions The Towson Manor Association is willing to support The Equitable Trust Company’s request for Business Local (BL) zoning for the said tract of land.”

Bradley testified that he had hand delivered that letter to the wife of Councilman Webster Dove at their home, receiving her assurance that it would be given to the Councilman. Councilman Dove acknowledged that he had received the letter. On March 24,1971 the County Council of Baltimore County applied a BL classification to the subject tract.

The trial court granted the injunction as prayed. On appeal, Equitable contends:

1. That Towson Manor Association did not accept Equitable’s offer.
2. That there was a failure of consideration for Equitable’s promise to Towson Manor Association and, alternatively,
3. That under the doctrine of “commercial frustration” Equitable is entitled to release from its commitment because performance became impossible “as a result of action of the Federal Reserve Board.”

We find merit in none of these contentions.

Offer and Acceptance

The trial judge found that there was an offer and acceptance. The evidence previously delineated herein fully supports that finding. The contention that there was no acceptance is without merit.

Consideration

Equitable suggests that forbearance to assert a groundless claim is not a good consideration for the promise, citing Strohecker v. Schumacher & Seiler, Inc., 185 Md. 144, 43 A. 2d 208, and Fiege v. Boehm, 210 Md. 352, 123 A. 2d 316. Although Equitable’s suggestion overstates the rule of the cited cases, it is plain that the forbearance of Towson Manor Association in the subject case was not such as would fall within the proscription of those cases. This becomes instantly apparent from the statement of the Court in Fiege, supra, at 361 [322]:

“On the other hand, forbearance to sue for a lawful claim or demand is sufficient consideration for a promise to pay for the forbearance if the party forbearing had an honest intention to prosecute litigation which is not frivolous, vexatious, or unlawful, and which he believed to be well founded.”

In the subject case we find it unnecessary to say more than that the zoning history of the subject property, in the light of continuing opposition by the Planning Staff, demonstrates that the BL classification may not have been applied to the subject tract had not Towson’s opposition to it been withdrawn. There was a valid consideration for Equitable’s promise.

Commercial Frustration

Equitable suggests that it is entitled to relief from its undertaking because, “* * * under Article 11, § 71, of the Annotated Code of Maryland (1957 Edition), a bank may only hold real estate under certain circumstances enumerated therein. As a result of the decision of the Federal Reserve Board on or about December 4, 1972, appellant Equitable can no longer meet the requirements set forth in Article 11, § 71, for holding real estate and must therefore dispose of its interest in the subject property.”

Although supporting evidence for the contention in the subject record is sparse indeed, we shall assume that the factual premise suggested by Equitable has been shown. We hold that under the controlling Maryland decisions, Equitable is not aided by such factual assumption.

In the leading case of State, Use of Lane v. Dashiell, 195 Md. 677, 75 A. 2d 348, it was said at 689 [353-54]:

“* * * It is a general rule of the common law that when the impossibility of performance arises after the formation of the contract, the failure of the promisor to perform is not excused. This rule was founded on the theory that if the promisor makes his promise unconditionally, he takes the risk of being held liable even though performance should become impossible by circumstances beyond his control. The unjust consequences of this general rule gave rise to certain exceptions. One of these is that a contractual duty is discharged where performance is subsequently prevented or prohibited by a judicial, executive, or administrative order, in the absence of circumstances showing either a contrary intention or contributing fault on the part of the person subject to the duty. Wischhusen v. American Medicinal Spirits Co., 163 Md. 565, 572, 163 A. 685; Fast Bearing Co. v. Precision Development Co., 185 Md. 288, 44 A. 2d 735; 2 Restatement, Contracts, sec. 458. But an order which interferes with the performance of the contract is not an excuse if the circumstances surrounding the formation of the contract are such as to indicate that the possibility of such interference was recognized and the risk of it was assumed by the promisor.
“Thus, in those cases where a regulation of an administrative agency is already in force at the time of the formation of the contract, the decisive question is whether or not the promisor assumed the risk of interference by the regulation.”

See also Acme Moving and Storage Corp. v. Bower, 269 Md. 478, 483, et seq., 306 A. 2d 545, 548.

In Montauk Corporation v. Seeds, 215 Md. 491, 138 A. 2d 907, it was said at 499-500 [911]:

“The general principle underlying commercial frustration is that where the purpose of a contract is completely frustrated and rendered impossible of performance by a supervening event or circumstance, the contract will be discharged. The courts in determining whether frustration will apply usually look to three factors. The first and probably most important is whether the intervening act was reasonably foreseeable so that the parties could and should have protected themselves by the terms of their contract. The courts then must consider the questions of whether the act was an exercise of sovereign power or vis major, and whether the parties were instrumental in bringing about the intervening event. The courts have generally held that if the supervening event was reasonably foreseeable the parties may not set up the defense of frustration as an excuse for nonperformance. The majority of the courts stress this principle in deciding cases on frustration, and hold that if the parties could have reasonably anticipated the event, they are obliged to make provisions in their contract protecting themselves against it. 18 University of Cincinnati L.Rev. 536; Cf. State, to Use of Lane v. Dashiell, 195 Md. 677, 689, 75 A. 2d 348.”

In Acme Markets, Inc. v. Dawson Enterprises, Inc., 253 Md. 76, 251 A. 2d 839, the Court of Appeals at 91 [848] adopted the language of the case of Perry v. Champlain Oil Co., 101 N. H. 97, 98, 134 A. 2d 65, 67 (1957):

“ ‘Generally speaking, the courts have been careful not to find commercial frustration if it would only result in allowing a party to withdraw from a poor bargain.’ ”

It is plain that Equitable made an unconditional promise. The assumed fact that Equitable was prevented by an order of the Federal Reserve Board to proceed in accordance with its plan for the use of the subject property, does not qualify as an exception to the application of the general rule binding it to that unconditional promise. This is so because: (1) there is not a scintilla of evidence that the subject tract may not be fully and profitably utilized within the restrictions agreed to by Equitable; (2) none of the restrictions are violative of County, State or Federal requirements; (3) the possibility that Federal approval for Equitable Trust Company itself to operate a branch bank at the location might be withdrawn could have been foreseen at the time of the unconditional promise and contract provisions guarding against such a contingency could have been made; and (4) return to the status quo at the time of the agreement is impossible — Towson necessarily would sustain an irretrievable loss — Equitable would acquire benefits it had forsworn.

Additional Contention

Chippendale for Equitable, subsequent to passage of the comprehensive rezoning ordinance, had directed a letter to the President of Wiltondale Improvement Association (Wiltondale), declaring, inter alia, “We have previously agreed with the Towson Manor Association, and we are willing to include you in said agreement, in consideration of your not entering an appeal against the BL zoning, to the effect that we are willing to impose certain restrictions and requirements to be observed in the development of the land in the event the BL zoning is not appealed (or if appealed by others the BL zoning is maintained by the courts) said restrictions and requirements to be recorded and run with the land for a twenty-year period after which they would be null and void.” That letter recited the same deed restrictions as did the letter of March 17,1971, supra.

As to Wiltondale, Equitable makes all of the previously discussed contentions that we have held to be without merit. Equitable additionally contends as to Wiltondale that its promise was without consideration, because:

(1) the BL classification on the property was a fait accompli when its letter to Wiltondale was written; or
(2) the comprehensive rezoning ordinance was not susceptible to appeal and thus there was neither benefit to the promisor nor detriment to the promisee.

Even if the additional contention as to Wiltondale were meritorious, the injunction against Equitable by the chancellor was properly granted as to Towson Manor for the reasons heretofore stated. We find, however, that the additional contention also is without merit. While it is true that the letter to Wiltondale was written subsequent to the passage of the rezoning ordinance, this fact did not mean that the ordinance was immune to attack upon classifications applied by it upon individual properties. Ford v. Baltimore County, 268 Md. 172, 300 A. 2d 204. It is true that the form of the action required to test the validity of that ordinance as applied to a particular property would not be an “appeal” in the generally accepted sense. Nonetheless, there was an avenue of attack upon the zoning available to Wiltondale to pursue. The Equitable letter to Wiltondale manifestly was intended to dissuade the latter from such an attack. The record shows that Wiltondale was thereby dissuaded. Equitable’s unconditional promise to Wilton-dale was supported by a valid consideration unaffected by commercial frustration.

Judgment affirmed.

Appellants to pay costs.

      . Robert J. Laird and Lillian Laird, his wife; Burton E. Greenwood and Dorothy Greenwood, his wife; Claude W. Todd, Jr. and Margaret Todd, his wife; Carl E. Bruff and Mary Carol Bruff, his wife; Joe Carroll Bradley and Nelle B. Bradley, his wife, and Thomas F. Mullen and Anita C. Mullen, his wife.

      . An earlier special exception for office building use, authorized in 1965 under the zoning code would expire on December 5,1970.

      . For a discussion of the procedural course followed by the County Council in connection with the ultimate comprehensive rezoning ordinance, see: Nottingham Village v. Baltimore County, 266 Md. 339, 349-53, 292 A. 2d 680, 685-87.

      . There had been numerous prior conferences and meetings between representatives of Towson and Equitable in attempts by all parties to achieve agreement respecting a zoning classification to be applied to the subject tract that would be mutually satisfactory.

      . It was stipulated that the letter was within the scope of Chippendale’s authority.

      .] More than fifty uses under BL zoning are authorized by the general provisions of Section 230.

      . Testimony by the witness Mullen, uncontradicted in the record, was to the effect that those changes reflected the conditional acceptance by Towson’s membership at its general meeting following receipt of the letter of March 10,1971.

      . It has not even been shown that Equitable made a “poor bargain.” Acme Markets, Inc. v. Dawson Enterprises, Inc., supra.


author: Orth, C. J.,

text:
    STATE OF MARYLAND v. MARCIANNA WOOTEN
    [No. 1080,
    September Term, 1974.]

      Decided July 3, 1975.

    The cause was argued before Orth, C. J., and Davidson and Lowe, JJ.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, A ttomey General, Gary Melick, Assistant Attorney General, William E. Brannan, State’s Attorney for Baltimore County, and Michael B. Sauer, Assistant State’s Attorney for Baltimore County, on the brief, for appellant.

      Robert N. Dugan, with whom was Russell J. White on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

THE ISSUES

The preliminary issue in this case is whether the appeal by the State from the denial of its motion to correct an allegedly illegal sentence is properly before us. We hold that it is. The primary issue — whether the sentence was illegal — will therefore be determined. In making that determination we must demarcate the punishment a trial judge is authorized to impose on a person convicted of murder in the first degree.

STATEMENT OF THE CASE

At a bench trial in the Circuit Court for Baltimore County Marcianna Wooten was convicted of the first degree murder of William Eugene Wooten, her husband. She was sentenced to life imprisonment, but the court ordered that not more than eight years be served, the balance of the sentence to be suspended. The State filed a motion claiming that the sentence as imposed was “improper, illegal, and in derogation of Statutory law” because “the only sentence that can be imposed for conviction of murder in the first degree is life imprisonment” and “under Statutory law and the cases construing same, no discretion is lodged in the sentencing Judge to impose any sentence other than life imprisonment for a conviction of murder in the first degree.” It prayed that the court correct the illegal sentence and impose a life sentence in accordance with Code, Art. 27, § 413. The motion was denied upon hearing. The State appealed from the denial. Mrs. Wooten included a motion to dismiss the appeal in her brief filed in this Court. Maryland Rule 1036, § d.

THE PROPRIETY OF THE APPEAL

Mrs. Wooten claims that the appeal by the State is not allowed by law. Pointing out that the State entered its motion under Rule 764, § a which provides: “The court may correct an illegal sentence at any time”, she urges under the authority of Harris v. State, 241 Md. 596, 597-598 and Dawson v. State, 17 Md. App. 316, 319-320, that relief under the Rule is “a statutory remedy and, as such, not appealable.” Both those cases were decided prior to the decision in State ex rel. Sonner v. Shearin, 272 Md. 502, which we think is dispositive of the question of the appeal here. In Shearin the Court of Appeals held that the trial judge’s refusal to correct an illegal sentence was properly appealed by the State. There, as here, the State appealed to this Court from the trial court’s denial of the State’s motion to correct a sentence alleged to be illegal. Before we considered the appeal, the Court of Appeals granted the State’s petition for a writ of certiorari. The Court of Appeals found, at 526, that the holding in State v. Fisher, 204 Md. 307, considered in light of the language used in Liquor Board v. Handelman, 212 Md. 152, and the subsequent holding in State v. Jacob, 234 Md. 452, “is authority for an appeal from the imposition of an illegal sentence, since the issue of the trial court’s jurisdiction is involved in the sense whether it exceeded the powers vested in it by prescribing a penalty contrary to law. A lower court which thus exceeds its powers must be bridled by a court of last resort. Were it otherwise, mandates of the General Assembly could be defied with impunity and the only protection of the public would be the torturous process of judicial removal which would not have the effect of correcting the specific error.” Because the appeal was before the Court of Appeals only by way of certiorari to this Court, it necessarily follows that the Court of Appeals found that the appeal, for the reasons it expressed, was properly before the Court of Special Appeals. It is true that the Court of Appeals noted that it was not obliged to interpret Courts Art. §§ 12-301 and 12-302 as those sections might apply to the case before it, 272 Md. at 526, footnote 6. This was so because the law which was in effect at the time Jacob was decided was to all intents and purposes the law in effect at the beginning of the prosecution involved in Shearin, which was before the effective date of the revisions codified as Courts Art. §§ 12-301 and 12-302. We believe, however, that the revisions made no change in the law material to the question here. The Revisor’s Note to § 12-301 explains that, with one exception not here relevant, no change was intended in the general rules as to appealability. With reference to § 12-302 (c) concerning appeals in criminal cases by the State, the Revisor points out that the subsection is essentially the language of the former Art. 5, § 14. Thus, the enactment of § § 12-301 and 12-302 did not so change the law under which Shearin was decided as to affect the Shearin holding. Under that holding the appeal here is properly before us and we so find.

THE SENTENCE AUTHORIZED UPON CONVICTION OF MURDER IN THE FIRST DEGREE

At common law the penalty for murder was death. F. Wharton, The Law of Homicide, § 659 (3rd ed. 1907). In 1809 Maryland for the first time made statutory provisions for the punishment of unlawful homicide. Acts 1809, ch. 138, § IV (1) prescribed: “Every person convicted of murder of the first degree, his or her aiders, abettors and counsellors, shall suffer death by hanging by the neck.” This statutory affirmation as to murder in the first degree of the common law penalty for murder obtained until 1908 when a lesser sentence in the discretion of the trial court was authorized by the General Assembly. It provided in ch. 115, Acts 1908:

“Every person convicted of murder in the first degree, his or her aiders, abettors and counsellors shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their natural life, in the discretion of the court before whom such person may be tried.”

Eight years later, ch. 214, Acts 1916, enabled a jury to proscribe the death penalty if it desired:

“Every person convicted of murder in the first degree, his or her aiders, abettors and counsellors, shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their natural life, in the discretion of the Court before whom such person may be tried; provided, however, that the jury in a murder case who render a verdict of murder in the first degree, may add thereto the words ‘without capital punishment,’ in which case the sentence of the court shall be imprisonment for life, and in no case where a jury shall have rendered a verdict in manner and form as hereinbefore prescribed, ‘without capital punishment,’ shall the court in imposing the sentence, sentence the convicted party to pay the death penalty.”

This statute remained viable until 29 June 1972 when the Supreme Court of the United States decided the consolidated cases of Furman v. Georgia, Jackson v. Georgia and Branch v. Texas, sub nom. Furman v. Georgia, 408 U. S. 238, reh. den. 409 U. S. 902. Our Court of Appeals construed Furman in Bartholomey v. State, 267 Md. 175, 184:

“We entertain not the slightest doubt that the imposition of the death sentence under any of the presently existing discretionary statutes of Maryland which authorize, but do not require, that penalty is unconstitutional under Furman as violative of the Eighth and Fourteenth Amendments to the federal constitution. In other words, we think the net result of the holding in Furman is that the death penalty is unconstitutional when its imposition is not mandatory.”

Thus, at the present time in Maryland, and until 1 July 1975, the punishment upon conviction of murder in the first degree is life imprisonment, the death penalty having been read out of § 413 by judicial fiat. In 1975 the General Assembly attempted to restore the death penalty within constitutional limitations. Acts 1975, ch. 252, effective 1 July 1975, repealed present § 413, other sections authorizing the death penalty, and related sections, and re-enacted them with amendments. The statutory scheme as to conviction of murder in the first degree or upon conviction of aiding, abetting or counselling the commission of any murder in the first degree was that the punishment be life imprisonment unless otherwise provided, § 413(A) and (C). Subsection (B) spelled out the circumstances under which a person convicted of murder in the first degree “shall be sentenced to death.” Subsection (D) assured that the death penalty where provided was mandatory:

“A death sentence may not be suspended, and no other penalty in lieu of the death penalty may be imposed upon conviction of murder in the first degree specified in subsection (B).”

In Bartholomew, at 185, the Court of Appeals said:

“The only lawful sentence that can be imposed for murder in the first degree under the controlling statute (§ 413) [as then in effect] is life imprisonment; no discretion is lodged in the sentencing judge and the imposition of any other sentence would plainly be illegal.”

The sentencing judge here made plain that he was well aware of this. He also observed that Code, Art. 27, § 643, permitting the imposition of a penalty less than the statutory minimum under certain circumstances had no application to a sentence imposed under § 413. Therefore, he imposed a sentence of life imprisonment, stating that it was as required by the law to which he referred. He then, however, ordered that Mrs. Wooten serve only 8 years, and suspended the balance of the sentence. It is manifest that the practical effect was as if a sentence of 8 years had been imposed flat out. The question is whether the judge could properly do indirectly what he could not do directly.

The judge below found authority for his action in Code, Art. 27, § 641A. As enacted by ch. 480, Acts 1970, effective 1 July 1970, it reads:

“Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years.
Probation may be granted whether the offense is punishable by fine or imprisonment or both. If the offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to the imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment. The court may revoke or modify any condition of probation or may reduce the period of probation.”

We are constrained to agree that § 641A applies to § 413 because we see no indicia of a legislative intent that it should not apply. When the General Assembly said: “The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, [and] suspend the remainder of the sentence . ..” it left nothing to be clarified, nothing to be construed, nothing to be interpreted. We are unable to read into the statutes any intent to except § 413 from the discretion bestowed upon the sentencing judge by § 641A. Our view is buttressed by the care with which the Legislature on two occasions spelled out that no discretion was left to the sentencing judge. As we have indicated, in the re-enactment of § 413 it provided explicitly, “A death sentence may not be suspended, and no other penalty may be imposed upon conviction of a murder in the first degree specified in subsection (B).” We note that, in view of this specific prohibition with regard to the death penalty, the silence of the Legislature in the new Act as to the suspension of a life sentence clearly indicates an intent not to exclude a life sentence from the operation of § 641A. In enacting the law relating to handguns the Legislature made its intent equally clear. It declared that no court shall enter a judgment for less than the mandatory minimum sentence specified, that no court shall suspend a mandatory minimum sentence, that no court shall grant probation before verdict, and that no court shall grant probation after verdict which would have the effect of reducing the actual period of confinement prescribed as a mandatory minimum sentence. The exceptions to those provisions are expressly set out. Code, Art. 27, § 36B (e).

In sentencing Mrs. Wooten, the court did not place her on probation upon any terms and conditions in suspending a part of the time to be spent in confinement. The State suggests, and argued below, that § 641A requires that a defendant be placed on probation when a sentence is imposed for a specified period but a lesser period to be served in confinement is provided by the court. We cannot construe § 641A that way. The application of all of its provisions is clearly within the discretion of the court; it “may” do the things spelled out. Furthermore, the court “may revoke or modify any condition of probation or may reduce the period of probation.” We think that in suspending a part of the sentence imposed, the placing upon probation upon terms and conditions is not mandatory on the court.

The short of it is that in the face of the statutory law, if the General Assembly desires that a life sentence imposed upon conviction of murder in the first degree shall not be suspended in whole or in part in the discretion of the sentencing judge, it must so declare by the enactment of legislation to that end.

Judgment affirmed; costs to be paid by Baltimore County.

      . Marcianna Wooten was jointly indicted and jointly tried with Norman Charles Abrams. He was found not guilty.

      . Prior to the motion filed by the State, Mrs. Wooten moved the court below to modify its judgment or to reduce the length of the sentence imposed. The answer filed by the State claimed that the sentence was improper and illegal and suggested a life sentence be imposed with no suspension of any part of the term. No express disposition of this motion is reflected in the record before us.

      . It is indicated that an express declaration that the State had the right to appeal from the imposition of an illegal sentence was considered and rejected with respect to §§ 12-301 and 12-302. We observe that it may well be that such a provision was not included for the same reasons such a provision was not inserted when Art. 5, § 14 was enacted by ch. 399, Acts 1957 — it was simply not required because there the right of such appeal existed in any event. See Shearin at 522-523.

      . 4 W. Blackstone, Commentaries, as adapted by R. M. Kerr, Haar Edition, 1962, referring at 224 to 201 of the original Blackstone reads:
      “The punishment of murder, and that of manslaughter, were formerly one and the same; both having the benefit of clergy; so that none but unlearned persons, who least knew the guilt of it, were put to death for this enormous crime. But by several early statutes, the benefit of clergy was early taken away from murderers through malice prepense, their abettors, procurers and counsellors: and the punishment of the principal criminal, or of an accessory before the fact, is now, in all cases, death; while accessories after the fact are liable to transportation for life, or imprisonment not exceeding two years.”
      For a discussion of punishments at the common law see Done v. People, 5 Park. Crim. Rep. 364 (N. Y. 1865), noting that the method of execution for murder was by hanging by the neck.

      . Acts 1922, ch. 465, later revised and now codified as Art. 27, §§ 71-79, dealt with the carrying out of the death penalty. By ch. 625, Acts 1955, hanging was replaced by the administration of a lethal gas.

      . The judge below said:
      “Article 27, Section 413, provides that every person convicted of murder in the first degree shall undergo a confinement in the penitentiary of the State for the period of their natural life.
      It has been ruled that no other sentence is legal and that there is no discretion lodged in the sentencing judge.”

      . Art. 27, § 643, enacted by Acts 1906, ch. 536 and amended by Acts 1972, ch. 181, § 28 to include the District Court of Maryland, provides:
      “In all cases where the law prescribing a punishment for crime fixes a maximum and a minimum penalty therefor, the judge of the Criminal Court of Baltimore and the serveral judges of the circuit courts of the counties and of the District Court of Maryland may, in lieu of the minimum penalty so prescribed, impose a less penalty of the same character; provided, however, that nothing herein contained shall be construed as affecting any maximum penalty fixed by law, or the punishment for any crime where the law provides one and only one penalty.”
      Bartholomey v. State, supra, at 185-186, held that in view of Furman v. Georgia, supra, the provisions of § 643 have no application to a sentence imposed under § 413.

      . The Court in Shearin found that those provisions were a valid exercise of the power of the General Assembly. 272 Md. at 519.

      . In so concluding we are aware that as originally drafted, the title of ch. 480, Acts 1970, stated that it was to provide for “alternatives in sentencing whereby a part of the sentence may be served in confinement and the remainder as a period of probation upon terms and conditions as the courts may deem proper.” As enacted, this was stricken from the title and the purpose of the Act was said to be “to provide for periods of probation under certain conditions and generally relating to probation.”
      Of course, we are not concerned in this opinion with the matter of parole. Code, Art. 41, § 122 (b) provides that no person who has been sentenced to life imprisonment shall be eligible for parole consideration until he has served 15 years or its equal considering statutory allowances for diminution of the period of confinement. It further provides that prisoners serving terms of life imprisonment shall only be paroled with approval of the Governor. See Dennis v. Warden, 12 Md. App. 512. We express no opinion as to the applicability of § 122 (b) with respect to the sentence here imposed.