text:
    LUCIAN T. JONES v. LAWRENCE WRIGHT et ux.
    [No. 656,
    September Term, 1976.]

      Decided March 15, 1977.

    The cause was argued before Gilbert, C. J., and Thompson and Melvin, JJ.

      William H. Pattison, Jr., with whom was Conrad L. McCulley on the brief, for appellant.
    No appearance for appellees.
   Thompson, J.,

delivered the opinion of the Court.

After a determination that the appellant, Lucian T. Jones, had obstructed an easement in violation of an earlier court decree, Judge Charles E. Edmondson, presiding in the Circuit Court for Dorchester County, found the appellant in contempt of court. The appellees were awarded $500.00 in damages and costs. On this appeal Jones contends the trial court erred in finding him in contempt, in awarding damages, and in holding him in continuing contempt.

On August 17, 1970, the late Judge C. Rurnam Mace, presiding in the Circuit Court for Dorchester County, found that a roadway which leads northwestward from the Lucy Fish Road to the Williamsburg Road, in the Hurlock Election District of Dorchester County, and crossing the properties of the appellant, the appellees, and a third party, had been used by the Wrights or their predecessors in title continously, adversely, uninterruptedly and exclusively since 1908. He further determined that a prescriptive easement existed in favor of the Wrights over “a strip which is ten feet in width and runs between the Lucy Fish Road northwest to the Williamsburg Road.” Mr. Jones was “enjoined from closing or in any way obstructing that right of way, easement, or roadway.”

At the hearing on this contempt petition, appellee Lawrence Wright testified that subsequent to Judge Mace’s order, the appellant had planted two wooden posts at different points in the middle of the road. While it was possible to drive around these posts, in order to do so one would have to leave the path of the original road. At another point in the road, the appellant bulldozed dirt over an approach to a ditch, which in effect blocked the road because it created a drop of three feet. At the same time, the appellant erected a new bridge over the ditch on his own property. The effect of this was that the original road became overgrown with brush, but a travelable by-pass was created over the property of the appellant, outside of the easement. When one of the appellees attempted to drive over the ditch, by means of the new by-pass, the appellant blocked his path and told him that the new overpass was private property.

During the course of the proceedings the trial judge recessed, in order to view personally the property in question. After court was reconvened, the appellant agreed to remove the two wooden posts, to level the approach to the crossover within the right-of-way, and restore that portion of the road to the condition it had been prior to the construction of the by-pass. The case was continued in order to allow these repairs to be made.

When the proceedings were reconvened, the appellant testified that he had removed the two wooden posts, leveled the crown off the approach to the ditch, cleared some of the brush, and filled a hole in the road. He stated that the original road had become obstructed as a result of the failure of the appellees to maintain it properly. He admitted that the road was still in poor condition, but asserted that this was a result of a heavy rainstorm which had occurred in the last week. Regardless of the rain, the road was in the same condition as it had been at the time he constructed the by-pass.

The court found that the appellant had obstructed the road. While the situation concerning the posts had been remedied, a vehicle could not cross the ditch without striking its undercarriage. The appellant was, therefore, found in contempt for violating the 1970 decree, and damages in the amount of $500 were awarded to the appellees.

I Sufficiency of the Evidence

We view the appellant’s first contention, that the trial court erred in finding the appellant in contempt, as a challenge of the sufficiency of the evidence. At the outset, we point out that the trial court found that because the posts had been removed they did not form a basis for his finding of contempt. The reason the appellant was found in contempt was that the ditch had been passable before the appellant had taken certain steps which obstructed it, and that this crossover was still unusable. As the testimony of both the appellant and the appellee place the original crossover in the same place, the location of the right-of-way is not in question. Although Mr. Jones testified that he had restored the right-of-way to the same condition that existed when he built the by-pass, there was a showing that this portion of the road was still not usable. Mr. Wright testified that that portion of the road was passable before the appellant obstructed it with his bulldozer. In other words, there was evidence to support the trial judge’s finding that the appellant had obstructed the road in violation of the 1970 order, rendering it unusable, and it has remained unusable. The trial judge was not clearly erroneous in this finding that appellant violated the court order and had not remedied the situation. Md. Rule 1086.

II Damages

Appellant’s second contention is that the trial court had no power to award compensatory damages in a civil contempt proceeding as prayed in the petition for a contempt citation. There is no question that the appellant was found in civil as opposed to criminal contempt. A civil contempt proceeding is intended to preserve and enforce the rights of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties. These proceedings are generally remedial in'nature and are intended to coerce future compliance. In a criminal contempt, on the other hand, penalty is ihiposed for past misconduct which may hot necessarily be capable of remedy. State v. Roll and Scholl, 267 Md. 714, 728, 298 A. 2d 867 (1973). The five basic factors which generally point to civil contempt were delineated in Winter v. Crowley, 245 Md. 313, 226 A. 2d 304 (1967).

“(1) the complainant is usually a private person as opposed to the State; (2) the contempt proceeding is entitled in the original action and filed as a continuation thereof as opposed to a separate and independent action; (3) holding the defendant in contempt affords relief to a private party; (4) the relief requested is primarily for the benefit of the complainant; (5) the acts complained of do not of themselves constitute crimes or conduct by the defendant so wilful or contumelious that the court is impelled to act on its own motion.” Id. at 317.

The case at bar meets each of these factors.

Authorities on the question of whether compensatory damages may be granted in favor of the adverse party in contempt proceedings seem to be in disagreement around the country. In the federal courts compensatory damages may be granted upon a finding of civil contempt. United States v. United Mine Workers, 330 U. S. 258, 304, 67 S. Ct. 677, 701, 91 L. Ed. 884 (1947); Gompers v. Buck’s Stove & Range Company, 221 U. S. 418, 31 S. Ct. 492, 502, 55 L. Ed. 797 (1911); Shakman v. Democratic Organization of Cook County, 533 F. 2d 344, 349 (7th Cir. 1976); Thompson v. Johnson, 410 F. Supp. 633, 642 (E.D. Pa. 1976); Gordon v. SS Vedalin, 346 F. Supp. 1178, 1183 (D. Md. 1972). A majority of the states also allow compensatory fines payable to the injured party. These states are divided into two categories. On the one hand are those states which have statutes which specifically authorize compensatory fines for civil contempt. Getka v. Lader, 71 Wis. 2d 237, 238 N.W.2d 87 (1976). On the other hand are those states whose statutes are silent, but hold that in the absence of a statutory prohibition, the power to assess compensatory fines is inherent in the court whose decree has been violated. City of Wilmington v. General Teamsters Local Union 326, Del. Supr., 321 A. 2d 123 (1974). Hawaii Public Employment Relations Board v. Hawaii State Teachers Association, 520 P. 2d 422 (Haw. 1974); Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 293 A. 2d 343 (1972); Brocker v. Brocker, 429 Pa. 513, 241 A. 2d 336 (1968). See also Lightsey v. Kensington Mortgage and Finance Corp., 315 So. 2d 431 (Ala. 1975) where compensatory fines are permitted but after a finding of contempt by the trial court a jury is impaneled to determine the damages.

In those states whose statutes are silent as to compensatory fines and that silence is interpreted as a prohibition of such power the reasoning is twofold. The first theory is that if damages are sought then the proper forum is a suit at law seeking those damages, not a contempt proceeding. Secondly, it is expressed that the purpose of contempt proceedings is to coerce compliance with the original order, and not to substitute additional relief. Elliott v. Burton, 19 N.C. App. 291, 198 S.E.2d 489 (1973); United Artists Records, Inc. v. Eastern Tape Corp., 18 N.C. App. 183, 196 S.E.2d 598 (1973); Eberle v. Greene, 71 Ill. App. 2d 85, 217 N.E.2d 6 (1966); Kasparek v. May, 174 Neb. 732, 119 N.W.2d 512 (1963); H. J. Heinz Co. v. Superior Court, 42 Cal. 2d 164, 266 P. 2d 5 (1954).

In Maryland the power of a court to compel compliance with its mandates is statutorily expressed. See Md. Rules 636, 685, P 1-5, BB 80 and Courts and Judicial Proceedings Article § 1-202. None of these, however, either affirm or deny the power of the court to impose damages payable to the injured party.

The Maryland Court of Appeals distinguished civil and criminal contempt recently in State v. Roll and Scholl, supra at 727-728:

“At common law what in Maryland is now regarded as civil contempt probably did not exist; but rather, a process which was employed as a procedure for civil execution was used as a sanction against a party who disobeyed a court order issued for the benefit arid advantage of another party in the proceedings.10 Through the years, civil contempt was substituted for civil execution, and now, in most jurisdictions, civil and criminal contempt are the composite parts of the whole law of contempt, although historically they are derived from a different lineage.
“Today, the line between civil and criminal contempt is frequently hazy and indistinct. Often the same acts or omissions may constitute or at least embrace aspects of both. Tyler v. Baltimore County, 256 Md. 64, 259 A. 2d 307 (1969). When this is the case, an alleged contemnor may be answerable in either a civil or criminal contempt proceeding. But, in this State, the' distinction between the two types of contempt has been preserved and is important. A civil contempt proceeding is intended to preserve and enforce the rights of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties. These proceedings are generally remedial in nature and are intended to coerce future compliance. Thus, a penalty in a civil contempt must provide for purging. On the other hand, the penalty imposed in a criminal contempt is punishment for past misconduct which may not necessarily be capable of remedy. Therefore, such a penalty does not require a purging provision but may be purely punitive.” (Emphasis added).
“10. See R. Goldfarb, The Contempt Power, Ch. II (1963).”

There is clear indication, however, in one case that Maryland follows the federal and the majority rule and gives courts the power to award a compensatory fine in the nature of damages. In Save-Mor Drugs v. Upjohn Co., 225 Md. 187, 170 A. 2d 223 (1971), the Court of Appeals recognized that a trial judge could award damages for past violations of a temporary injunction if the injunction is ultimately sustained:

“The rule was flatly stated to be well established as applicable in civil as well as in criminal contempt cases in Salvage Process Corp. v. Acme Tank Cleaning Process Corp., supra, 86 F. 2d 727 (C. C. A., 2d, per curiam), but the practical limitation of the rule is also well shown by that case. There the defendant had been fined (or subjected to an award in favor of the plaintiff) in civil contempt proceedings for violation of a temporary injunction, the fine or award being (as in the instant case) for the plaintiffs expenses in the contempt proceedings. In a companion case, decided by the Circuit Court of Appeals the same day as the contempt case, the patents upon which the plaintiffs suit was based were held invalid and the order for the temporary injunction was therefore reversed. It was held in the contempt case that the plaintiffs, right to the fine or award fell with the reversal of the injunction order.
“The result in the Salvage Process case is in accord with the general rule that the right of the complainant to an award for civil contempt in the nature of damages stands or falls with his right to the injunction.” Id. at 191-192.

In the case at bar the right to the injunction became final several years ago and is not now subject to attack.

The reasoning behind the rule which allows a court to impose compensatory damages to remedy contemptuous conduct is sound. It seems to us that the -court which imposes the order should have the right to fully enforce it. To hold that the injured party must resort to a different court to enforce his judicially determined rights, where a respondent has violated an order of court, is to require two trials instead of one. In short, we see no reason in law or justice to require such a duplication of legal proceedings. Of course, the damages must be based on actual loss of the complainant; here there is no challenge as to the amount of the damages.

Ill Continuing Contempt

Appellant’s final contention is that the trial court erred in holding him in continuing contempt until the $500 damages and the costs of court are paid. This question is not properly before us because, although the trial judge’s comments from the bench indicated the order for payment of the money might be enforced by imprisonment, the written order provided only for a money judgment, An equity court acts only by written orders. Kennedy v. Foley, Receiver, 240 Md. 615, 214 A. 2d 815 (1965); Sellman v. Sellman, 238 Md. 615 209 A. 2d 61 (1965).

Decree affirmed.

Appellant to pay costs.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    WILLIAM F. KROL et ux. v. YORK TERRACE BUILDING, INC. et al.
    [No. 661,
    September Term, 1976.]

      Decided March 15, 1977.

    The cause was argued before Morton, Davidson and Lowe, JJ.

      Gerald S. Klein, with whom was Jerome Blum on the brief, for appellants.

      Richard F. Cadigan, with whom were David Downes, William Haugh and Wells, Dúrke & Albert on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

The Case

By an opinion dated July 30, 1975, the Circuit Court for Baltimore County indicated that it would grant appellees’ motion for summary judgment. An appeal was noted on August 15, 1975, and the case was argued before this Court. On May 20, 1976, by per curiam opinion, we dismissed the appeal as premature because no judgment had been entered. Krol v. York Terrace Building, Inc. (No. 856, September Term, 1975). On May 27, 1976, the trial judge ordered judgment to be entered in favor of the appellees pursuant to his prior opinion. On appeal from that judgment the parties were permitted to rely on their original briefs, although we required reargument. We reverse the belated order of the trial court directing the entry of summary judgment.

The Facts

Appellants,, Mr. and Mrs. William F. Krol, agreed to purchase a home to be built by the appellees York Terrace Building, Inc. and Dover Construction Co., Inc. After appellees concluded “building, equipping and completing” it pursuant to contract, the Krols- settled for and moved into the house on June 24, 1972. Less than two weeks later, on July 6, while preparing for a dinner party that evening, Mrs. Krol discovered that there was no water, although prior to that time there had been an adequate supply.

The Krols survived the evening’s dinner party by the grate of friendly neighbors who loaned them water and stoic guests whose self-restraint or early departure avoided taxing the sanitary facilities. But for the remainder of the year the Krols were forced to survive on water supplied by hoses from neighboring homes and promises from the appellees. On one occasion during this period, appellees’ representative offered to dig the well 100 feet deeper in exchange for a release from the Krols, but, presumably once burned, the latter declined the gamble. Finally, in January 1973, appellants contracted with a well digger on their own initiative and at their own expense. The well he dug on the same lot produced an adequate and uninterrupted supply of water.

In May 1973 the Krols sued the appellees for breach of express warranty, breach of implied warranty and fraudulent misrepresentation, all with regard to the inadequate water. The trial judge entered summary judgment against appellants on all three issues.

On appeal appellants contend that there was sufficient evidence or inferences therefrom to provide a real dispute as to the existence of material facts on one or more of the three grounds upon which they sued. Because the evidence clearly shows that this case is subject to statutorily dictated implied warranties and because we find in the record some evidence inferentially indicative of a breach of these implied warranties, we will reverse the judgment entered by the trial court.

The Standard of Review

It is important to bear in mind that we are reviewing the grant of a motion for summary judgment; we are not reviewing the evidence for sufficiency under the clearly erroneous rule, Md. Rule 1086. In short, we are second-guessing the trial judge upon whether the record contains any evidence of a genuine controversy. The test to be applied, not only by the trial court but by this Court upon review, has so oft been stated that it hardly bears repetition; but it has been no more succinctly phrased than by Judge Levine in Broadwater v. Arch, 267 Md. 329, 335,

“We suspect there are few better-settled rules in this, state than that pertaining to the office of a motion for summary judgment. In a line of cases, the citation of which 'would unduly lengthen this opinion, we have repeatedly held that the summary judgment procedure is not designed as a substitute for trial or for the purpose of deciding an issue of fact, but that it merely provides for a hearing to determine whether there is an issue of fact to be tried.”,

nor more clearly articulated than by Judge Powers in Vanhook v. Merchants Mut. Ins. Co., 22 Md. App. 22:

“It is clear that in ruling on a motion for summary judgment the court does not decide disputed facts, but decides whether any real dispute as to material facts exists. Shatzer v. Kenilworth Warehouses, 261 Md. 88, 274 A. 2d 95 (1971); Brown v. Suburban Cadillac, Inc., 260 Md. 251, 272 A. 2d 42 (1971). To grant such a motion the court must determine that ‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 610 d. 1.” Id. at 25.

The Law to Be Applied

As we have indicated in the preliminary recitation of facts, appellants contracted to purchase a house to be built, equipped and completed by appellees. Thus by definition they became entitled to the implied warranties of improved real property sales, as codified at the time of sale in Md. Code, Art. 21, § 10-203. They are “buyers” within the contemplation of § 10-201 (d):

“Definitions.
As used in this subtitle, unless the context otherwise requires:
(d) ‘Buyer’ means the original purchaser of improved realty, and the heirs and personal representatives of the original purchaser.” (emphasis added).

Furthermore, no dispute was brought to our attention by any of the appellees (who are the owner-builders and relevant subcontractors) that they do not fit the definition of “Seller” set forth in § 10-201 (c):

“(c) ‘Seller’ means any person or corporation whose business it is to erect or otherwise create an improvement upon realty, or to whom a completed improvement has been conveyed for resale in the course of his (its) business.”

And certainly the newly constructed house of which the Krols took possession on June 24, 1972, is an “Improvement” within the meaning of § 10-201 (a):

“(a) ‘Improvements’ includes all newly constructed private dwelling units and all fixtures and structures which are made a part of the newly constructed private dwelling units at the time of their construction by building contractors and subcontractors.”

Among the several warranties provided in § 10-203 is the warranty that a newly built house be “fit for habitation” for one year from delivery of the deed or completion of the improvement:

“(a) Unless excluded or modified pursuant to subsection (c) of this section, in every sale warranties are implied that the improvement is
(1) Free from faulty materials,
(2) Constructed according to sound engineering standards,
(3) Constructed in a workmanlike manner, and
(4) Fit for habitation, at the time of the delivery of the deed to a completed improvement, or at the time of the com pletion of an improvement not completed when the deed is delivered, provided, however, that these warranties do not apply to any condition that an inspection of the premises would have revealed to a reasonably diligent buyer at the time the contract was signed.” (emphasis added ).

That the life of such warranties is limited to one year is made clear in the next section, § 10-204, although two additional years are permitted for the filing of suit:

“(a) In the event of the breach of any of the several warranties provided for in this subtitle, the court may award such legal or equitable relief, or both, as justice may require.
(b) Except in the case of an express warranty where a longer period of time is specified, the several warranties provided for in this subtitle shall expire:
(1) In the case of a dwelling completed at the time of the delivery of the deed to the buyer, one year after the delivery or after the taking of possession by the buyer, whichever occurs first, and
(2) In the case of a dwelling not completed at the time of delivery of the deed to the buyer, one year after the date of completion or the taking of possession by the buyer, whichever occurs first.
Any action arising under this subtitle shall be commenced within two years after defect was discovered or should have been discovered or within two year-s after the expiration of the warranty, whichever occurs first.” (emphasis added).

In short, the warranty guarantees that the Krols’ new home be

“Fit for habitation at the time ... of the delivery of the deed ....,

for a period of

“ . . . one year after the taking of possession by the buyer.”

We were unable to understand why the parties did not argue the applicability of the warranty of fitness for habitation or why that particular warranty was not addressed in the opinion of the trial judge. When discussing the applicability of the “Implied Warranties” the trial judge did not mention the “fit for habitation” warranty in § 10-203 (a) (4), but addressed only the first three warranties in § 10-203 (a) dealing with (1) materials, (2) engineering standards and (3) workmanship. After citing the Real Property Article he stated simply:

“In the case at Bar, there is no complaint of faulty materials, improper engineering in the construction, or unworkmanlike construction.”

A closer scrutiny of his opinion indicated that the trial judge must have relied upon the current version of the warranties statute (as revised by the Code Revision Commission) presently set forth in Md. Code, Real Prop.' Art., §§ 10-202 — 10-205. Presumably, the failure of the trial judge to address the “fit for habitation” warranty arose from the misleading form in which the warranty statute was printed upon revision:

“(a) Warranties which are implied. — Except as provided in subsection (b) or unless excluded or modified pursuant to subsection (d), in every sale, warranties are implied that the improvement is:
(1) Free from faulty materials,
(2) Constructed according to sound engineering standards,
(3) Constructed in a workmanlike manner, and
(4) Fit for habitation; at the time of the delivery of the deed to a completed improvement, or at the time of completion of an improvement not completed when the deed is delivered.” (emphasis added). Real Prop. Art., § 10-203 (a).

The Opinion

Had the judge addressed the statute in Md. Code, Art. 21, § 10-203, and in the form of its original enactment in Laws, 1970, Ch. 151, § 1, that oversight might have been avoided by gleaning the meaning made more obvious from the style in which it was set out on the page and which we again set forth here for comparative analysis:

“(a) Unless excluded or modified pursuant to subsection (c) of this section, in every sale warranties are implied that the improvement is
(1) Free from faulty materials,
(2) Constructed according to sound engineering standards,
(3) Constructed in a workmanlike manner, and
(4) Fit for habitation,
at the time of the delivery of the deed to a completed improvement, or at the time of the completion of an improvement not completed when the deed is delivered, provided, however, that these warranties do not apply to any condition that an inspection of the premises would have revealed to a reasonably diligent buyer at the time the contract was signed.” (emphasis added). Md. Code, Art. 21, § 10-203 (a).

The trial judge appears to have concluded that the warranty of habitability could not apply because adequate water was flowing at the time the deed was delivered, presumably at settlement. However, it is clear that the extended phrase beginning with “at the time” applies to all four warranties set forth in § 10-203 (a) and not, as the form of the revision might suggest, only to the warrant of habitability. When that is established, it is apparent that the Legislature would hardly have intended these implied warranties, all of which were expressly intended to apply to hidden and latent defects, to be applicable only “at the time of the delivery of the deed .. ..” Such an interpretation would lead to an absurd consequence and we are admonished whenever possible to avoid absurd statutory consequences. See Fairchild v. Maritime Air Serv., 274 Md. 181, 186. Even considering appellees’ contention that no one can guarantee a continuation of a natural resource such as water, for us to hold that an implied warranty pertaining to a well expires after the first flush would deprecate the very purpose of that consumer oriented statute.

Section 10-204 (b), which sets forth the life of the warranty, is part of the statutory scheme and must be read together with § 10-203. See Blumenthal v. Clerk of Cir. Ct., 278 Md. 398, 403; Thomas v. State, 277 Md. 314, 317. In applying this rule, the obvious intention of the Legislature was to have the effective life of the implied warranties commence “at the time of the delivery of the deed .. .” and to expire “one year after the delivery or after the taking of possession by the buyer . . ..” With this reasonable interpretation, no word, phrase or sentence is rendered surplusage or meaningless, see Prince George’s Co. v. White, 275 Md. 314, 319; and we will have carried out the real intention of the Legislature in enacting the statute, which is the cardinal rule of statutory interpretation. But see State v. Fabritz, 276 Md. 416.

With that understanding of the law, we have next to determine whether a newly constructed house without an adequate supply of useable water may be “fit for habitation”. In contemporary life, such a postulate is almost itself an absurdity. Furthermore, a water well provided with a contemporary, newly constructed home is clearly a fixture or structure which is made a part of a newly constructed private dwelling unit by the building contractor or subcontractor sufficient to fit the definition of “Improvements” intended to be included under the warranties. See § 10-201 (ai, op. cit. Although no case has directly addressed that issue in regard to the implied warranty of fitness of habitation, the Court of Appeals had before it on a sufficiency of the evidence question under their clearly erroneous rule, (Md. Rule 886/, a case factually apposite to the case at bar.

In Bosse v. Koehler, 262 Md. 593, the Court of Appeals held that the evidence was sufficient for a trial judge to have decided in favor of a buyer on surprisingly similar facts to those at bar:

“Appellant, Hammond E. Bosse (Bosse i, a builder, contracted to sell to appellees, Melvin C. Koehler and Jeanette D. Koehler, -his wife, (the Koehlers/ a home in Anne Arundel County ‘to be constructed with workmanship and materials comparable to’ a specified home in the same development. Although the contract did not mention water supply, it is conceded that it was intended, as Bosse puts it in his brief, that the Koehlers were to receive ‘useable water’.
The Koehlers made settlement for the property on May 21, 1968, the same day on which the well was drilled. They moved in the first week of June, at which time they found that ‘the water was muddy and sandy.’ Upon the advice of Bosse, they let it keep running, but it did not clear up. The well driller returned. Problems continued.
At some times the water was reported as ‘bacteriologically safe for drinking purposes’, while at other times it was reported as contaminated. The color of the water seems to have differed substantially from what one normally expects for drinking water.” Id. at 594-595.

While the Koehlers’ problems with the well continued for approximately a year, the water was then found free from contamination, but the Court of Appeals did not disagree with the trial judge that the house owner was justified in having dug a new well and was entitled to recover its reasonable costs:

“A subsequent report relative to a sample taken on April 14, 1969, showed that as of that date the water was free of contamination. That report was forwarded on April 16. By that time the die appears to have been cast, however, because on May 8 a well driller other than the driller employed by Bosse applied to the Department of Water Resources for a permit to drill a well which was completed on May 29, 1969. It ultimately produced a clear, potable water.” Id. at 596.

Even without direct reference to the implied warranties in Bosse, the trial judge’s opinion, affirmed and quoted at length by the Court of Appeals, carried the underlying theme

“ ‘that the best part of a year is a sufficient allowance for a drilled well to work.’ ” Id. at 599.

We concur with that principle and interpret the implied warranty statute as making it mandatory.

Although we do not know whether the trial court in Bosse v. Koehler decided the case on an express or implied warranty basis or on some other theory, two messages are implicit. First, even the parties conceded that an adequate water supply was intended, although the contract did not mention it. Even without reference to the statutory implied warranties, the Court of Appeals appears to take for granted as an issue beyond dispute, that a newly constructed house should be supplied with useable water. We agree with that underlying philosophy and espouse it here more clearly as the law.

The second Bosse message is even clearer. A well providing water for a newly constructed house must provide it in an acceptable quality and the failure to do so is actionable. By analogy there can be little question today that a new home which does not contain an adequate supply of useable water is not “fit for habitation”, but even if we assume that issue is open to question, it is certainly one to be decided by a jury, not foreclosed to the factfinder. We accept that teaching from Bosse as well.

paving found from the evidence available in the record that the parties and the transaction were subject to coverage by the implied real property warranty, and that an adequate supply of potable water is one prerequisite of fitness for habitation, we have but to note that there was substantial evidence in the record that the well intended to provide the water did not work, except intermittently, after the twelfth day of possession by the Krols. They endured half a year of water hoses from their neighbors’ houses during this period of unfulfilled promises from the appellees, before resorting to self-help by having a new well dug. The very failure of an adequate water supply less than two weeks after possession is sufficient evidence that the house was not fit for habitation to create a genuine dispute of fact for trial. However, we hasten to point out that our application of an implied warranty here does not undertake to quantitatively guarantee anything more than an amount of water sufficient to sustain a household for the prescribed period. But see 90 A.L.R.2d 1351, 1353-1355. What amounts to an adequate supply is also a problem of persuading the factfinder.

The Conclusion

We do not hold that the implied warranty was breached. We hold only that there was sufficient evidence or inferences therefrom, from which a factfinder could so find, and that is the test to be applied on summary judgment questions. In Vanhook, supra, Judge Powers also pointed out that:

“In ruling on a motion for summary judgment, as we said in Knisley v. Keller, 11 Md. App. 269, 273 A. 2d 624 (1971) at 272-273:
‘The function of the judge is much the same as that he performs at the close of all the evidence in a jury trial when motions for 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 matter of law.’ ”
Id. at 25-26.

In Mass Transit Adm. v. Miller, 271 Md. 256, 259, the Court of Appeals said:

“ ‘Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury’; that the rule requires submission of the case to the jury if there be any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of such evidence being left to the jury;....”’

It follows that, if such meager evidence is sufficient to carry a case to a jury over a motion for directed verdict, Knisley v. Keller, supra, it should take no more to overcome a motion for summary judgment.

Judgment reversed.

Costs to be paid by appellees.

      . The other appellees are Leroy A. Brandt, John Wm. Armaeost, Water, Incorporated, John D. Wells and Austin R. Kéyser, Inc.

      . The trial judge interpreted the' original declaration as alleging breaches of express and implied warranties of adequate water supply, although he observed that the language was equivocal.

      . The balance of $ 10-208 relates to reliance upon a builder’s skill and judgment by virtue of improvements required for a particular purpose and the procedure necessary to exclude or modify the implied warranties,

      . The revision, accomplished by Laws 1974, Ch. 12, § 2, was not effective until July 1,1974. All the events giving rise to this case occurred in 1972 and 1973. Consequently, Art. 21, not the Real Prop. Art., is applicable here. However, we note that we do not deem the change in form of the § 10-203 (a) in the Real Prop. Art. a substantive change, and the result of this appeal would not be altered if the Real Prop. Art. did apply.

      . By Laws 1976, Ch. 572, effective July 1, 1976, the Legislature revised the form of § 10-203 (a) to reflect this intent more clearly:
      “(a) Warranties which are implied. — Except as provided in subsection (b) or unless excluded or modified pursuant to subsection (d), in every sale, warranties are implied that, at the time of the delivery of the deed to a completed improvement or at the time of completion of an improvement not completed when the deed is delivered, the improvement is:
      (1) Free from faulty materials;
      (2) Constructed according to sound engineering standards;
      (3) Constructed in a workmanlike manner; and
      (41 Fit for habitation.”

      . § 10-203
      “(b) Exception. — The warranties of subsection (a) do not apply to any condition that an inspection of the premises would reveal to a reasonably diligent purchaser at the time the contract is signed.” (emphasis added).

      . It is possible that the original suit was instituted before the implied warranties upon real property statutes were enacted by the Legislature. The effective date of the original enactment was July 1,1970 and the Court of Appeals' opinion was not filed until June 25, 1971. In any case, the warranties would not have been in force at the time of purchase.

      . But we do not agree with that part of the trial judge’s opinion quoted by the Court of Appeals which states that it is a very difficult thing to
      “ ‘... stay in the building business and satisfy a bunch of women [one] is building houses for. There is nothing in this world more obnoxious or picayunish than a woman who has ordered a custom-built house and is close enough to watch it built.’ ” 262 Md. at 598.


author:
Gilbert, C. J.,
      Lowe, J.,

text:
    MORRIS E. NELSON v. REAL ESTATE COMMISSION FOR THE STATE OF MARYLAND
    [No. 693,
    September Term, 1976.]

      Decided March 15, 1977.

      The cause was argued before Gilbert, C. J., and Morton and Lowe, JJ.

      Carlton M. Green and Henry A. Babcock for appellant.

      Robert J. Aumiller, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court. Lowe, J., filed a concurring opinion at page 345 infra.

Having been unsuccessful in defending himself on charges brought before the Real Estate Commission for the State of Maryland and in the subsequent appeal to the Circuit Court for Prince George’s County (Mathias, J..), Morris E. Nelson now by way of motion challenges for the first time the jurisdiction of the Commission and the court. Of course, the question of jurisdiction over the subject matter may be raised at any time. Resh v. Resh, 271 Md. 133, 314 A. 2d 109 (1974); Carroll v. State, 19 Md. App. 179, 310 A. 2d 161 (1973); Wheeler v. State, 10 Md. App. 624, 272 A. 2d 96 (1971).

As “back-ups” to the jurisdictional issue, Nelson asserts that the complaint upon which the Commission acted and the circuit court affirmed was barred by the statute of limitations and that the evidence does not support the findings of the Commission. If we agree with Nelson on the jurisdictional issue, we need not journey through the statute of limitations nor the sufficiency of the evidence. We are, however, compelled to complete the sojourn because we are not d’accord with Nelson’s view of the jurisdictional scope of the Commission, and thus, of the circuit court.

We shall now set the scene from which this controversy arose.

John Meredith Tayler, an English and Canadian lawyer, on June 6, 1971, read an advertisement in the Washington Post. The ad read as follows:

“Apt. — 4 units in heart of Riverdale. Older type. Excel, potential. Assume $21,000 loan. Asking $29,500. Owner leaving area. Prin. call 772-0033.”

Mr. Tayler responded to the ad by telephoning the listed number and spoke with the appellant, Nelson, who identified himself as a real estate broker. Nelson provided Tayler with particulars concerning the property. Tayler met with Nelson and inspected the apartments which were located at 4409 Queensbury Road, Riverdale, Maryland. Tayler testified before the Commission that Nelson, in reply to a question by Tayler, stated that the property was licensed for apartment usage. Nelson produced a temporary certificate from the Prince George’s County Department of Inspections and Permits. Nelson informed Tayler that a permanent certificate would be forthcoming when certain necessary repairs to the property were completed. Tayler verified the information received from Nelson with an unnamed individual employee of the Department of Inspections and Permits. Tayler then entered into a contract to purchase the property. At the time Nelson signed the contract as “contract owner,” title to the property was in one Rogers, who apparently was a straw party.

Immediately prior to settlement, which occurred within a few days of the execution of the contract of sale, Tayler requested Nelson to give written assurance that a license would be issued when the necessary repairs to the property were completed. Nelson penned upon the reverse side of the contract of sale, “Notwithstanding anything in the contract, subject property described herein is sold as a bona fide apartment house.” Both Nelson and Tayler subscribed their respective names under the sentence that Nelson had written. Tayler proceeded to settlement and executed a deed of trust note in the amount of $8,750 in favor of Nelson. The record is not clear as to whether Tayler assumed the outstanding $21,000 obligation then existing upon the property.

Sometime later, Tayler received a letter from the appropriate authorities requesting that he apply for an apartment house license. The letter was prompted by a complaint filed by a neighbor or tenant. In investigating the complaint, the Department learned of the transfer of the ownership of 4409 Queensbury Road. Tayler applied for the license, but it was denied on the ground that the property was in a single family residential zoning area. Efforts by Tayler to show a non-conforming use or to obtain rezoning failed. We do observe that Tayler, in his application for a use permit, sought five (5) apartments. Being unable to utilize the property for four apartments, Tayler lost the property at foreclosure. He filed a complaint with the Real Estate Commission against Nelson. For reasons that are unclear in the record, the complaint was dismissed, seemingly without a hearing, in 1974 but reopened in 1975. No reason is stated in the record as to why the Commission subsequently turned 180 degrees and proceeded on the matter. In any event, Nelson did not appear at the hearing but confined his defense to a letter to the Commission in which he denied any wrongdoing. Nelson opined that he would not “subject” himself “. . . to further harassment in this case, which has continued for many months.” After setting out his view that Tayler lost the property because of his own mismanagement and was endeavoring to use Nelson “as an escape,” Nelson concluded by stating, “With that, I am perfectly willing to stand on the facts as determined by the commission based upon your investigation and whatever other information is available to you from any source.”

The Commission found that Nelson had wilfully misrepresented the property that he sold to Tayler, and it, on December 26, 1975, revoked Nelson’s license, ordered his salesmen’s licenses surrendered, canceled his real estate listings, and directed Nelson to “.. . cease and desist from the practice of real estate. ...”

As we have indicated, Nelson now challenges the jurisdiction of the Commission in the first instance. Nelson contends that the Commission records, as introduced into evidence at the hearing, disclose that Nelson was not a licensed broker during the period “November 1, 1970 to November 1, 1971,” the time frame “within which the alleged misconduct occurred.” Ergo, Nelson reasons, inasmuch as he was not licensed at that time, he and any acts committed by him with respect to Tayler were outside the ambit of the Commission’s jurisdiction.

Nelson also contends that he was selling his own property and not acting as a broker. The Supreme Court of South Carolina in South Carolina Real Estate Comm’n v. Boineau, 230 S.E.2d 440 (1976) considered and rejected a similar argument. The Court said:

“The prinicpal issue in the appellant’s contention that in all of these four transactions he was acting not as a real estate broker, but on his own behalf. He argues that the grounds set forth for revocation of a real estate license, .. . apply solely to activities of a broker while acting in his broker capacity. We disagree. Even as members of the bar are subject to disciplinary procedures for conduct not strictly related to the practice of law, realtors may have their licenses revoked for conduct not strictly related to a transaction in which they are acting as broker.” 230 S.E.2d at 441-42.

We think Nelson’s argument must fail because Md. Ann. Code art. 56, § 224 (a) provides in pertinent part that the Commission may investigate “. .. the actions of any real estate broker or real estate salesman, or any person who shall assume to act in either such capacity within this State. . . .” (Emphasis supplied.) The statute specifically confers jurisdiction upon the Commission to investigate not only real estate brokers and salesmen but also those who “assume to act” as brokers or salesmen. In the case sub judice, the uncontradicted testimony was that Nelson held himself out to Tayler as a real estate broker, thus thrusting himself clearly within the Commission’s jurisdiction.

We think it would be seriocomic to construe § 224 (a) so as to allow the Real Estate Commission to call to task those brokers who violated the Commission’s precepts while acting as brokers and at the same time carve from the Commission’s jurisdiction the very same violations, committed by the identical broker, in a non-broker capacity. In the former instance, the broker might be branded as unethical but in the latter, even though the broker committed the same violation, he would retain, officially, his good character. McKnight v. Florida Real Estate Commission, 202 So. 2d 199 (Fla. App. 1967).

Nelson next asserts that the proceedings against him should have been barred by the statute of limitations, Md. Cts. & Jud. Proc. Code Ann. § 5-107. That section provides:

“A prosecution or suit for a fine, penalty, or forfeiture shall be instituted within one year after the offense was committed.”

Nelson contends that on its face the proceedings brought against him are violative of the statute. Without attempting to discuss ad nauseam all the reasons why Nelson’s argument is founded on shifting sand, we shall point out but three.

I.

The proceedings before the Commission had as its objective the protection of the public from “sharp” practices of real estate brokers. Just as members of the bar are subject to disciplinary proceedings for professional misconduct, even though not strictly related to the practice of law, so are real estate brokers.

The Court of Appeals has not, so far as we are aware, considered Courts Art. § 5-107 or its predecessor, Md. Ann. Code art. 57, § 11, with respect to real estate brokers. It has, however, on a number of occasions ruled that limitations do not apply in attorney grievance matters. Recently, in Bar Ass’n of Baltimore City v. Posner, 275 Md. 250, 339 A. 2d 657 (1975), the Court summarily rejected Posner’s theory that laches or limitations was a defense to the Bar Association’s disbarment proceeding against him, pointing out that the purpose of the proceeding was the protection of the public.

In Anne Arundel Bar Ass’n v. Collins, 272 Md. 578, 582-83, 325 A. 2d 724, 727 (1974), Judge Levine, writing for the Court said:

“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 disbar or suspend an attorney is judicial in character, but the inquiry is in the nature 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.” (Emphasis supplied.)

We are unable to perceive any difference between protecting the public from unscrupulous practices by an attorney and the same type of practice by a real estate broker.

II.

As with matters before the Attorney Grievance Commission or the Judicial Disabilities Commission, the regulatory action by the Real Estate Commission is “neither civil nor criminal in nature.” In re Diener, 268 Md. 659, 670, 304 A. 2d 587, 594 (1973). A hearing before such an administrative body is not a “prosecution” nor is it a “suit.” We construe the words “prosecution” and “suit” as used in Courts Art. § 5-107 as follows:

“Prosecution” means a criminal action brought by the State, in a court of competent jurisdiction, by way of indictment, information, or other charging document, against an accused for violation of the common or statutory criminal laws of this State.

“Suit” means an action at law or equity brought in a court having jurisdiction over the subject matter.

The key word in both definitions is “court.” Patently, an administrative agency is not a “court” and thus the proscription contained in § 5-107 is not applicable thereto.

The principal purpose of a hearing before the Real Estate Commission is to determine the fitness of a licensee. We subscribe to the view expressed by then Attorney General Hall Hammond (later Chief Judge of the Court of Appeals') that:

“[A] hearing before an administrative board to determine whether a license shall be revoked or suspended is neither a prosecution nor a suit within the meaning of the statute of limitations.” 36 Op. Att’y Gen. 97,98 (1951).

The Legislature, which is presumed to know of the interpretations made of statutes by the Attorney General, Jackson Marine Sales v. St. Dept., 32 Md. App. 213, 359 A. 2d 228 (1976); Demory Brothers v. Bd. of Pub. Works, 20 Md. App. 467, 316 A. 2d 529 (1974), aff'd, 273 Md. 320, 329 A. 2d 674 (1974). See also Crest Investment Trust, Inc. v. Cohen, 245 Md. 639, 648, 227 A. 2d 8, 13 (1967); Read Drug & Chemical Co. v. Claypoole, 165 Md. 250, 257-58, 166 A. 742, 745 (1933), has met at least annually since Attorney General Hammond handed down his opinion in 1951, but that body has not changed the statute. Thus, the General Assembly has sub silentio tacitly approved the Attorney General’s interpretation.

We hold that the statute of limitations is not applicable and may not be pleaded as a bar to a proceeding before the Real Estate Commission when the subject before the Commission is a determination of whether a license will be suspended or revoked.

III.

The record shows that Nelson, by letter, submitted to the jurisdiction of the Commission. At that time, he did not interpose any question of limitations. In fact, the issue of limitations appeared for the first time in the appeal from the Commission to the circuit court. The failure on Nelson’s part to raise limitations as a bar to the proceeding before the Commission, even if it could have been properly raised, is, in any event, tantamount to a waiver of that defense.

Finally, Nelson asseverates that the evidence before the Commission did not support a finding of “willful misrepresentation.” Based on the evidence submitted to it, the Commission held the following, which we quote with minor editing:

“In order to sustain a charge under Section 224(b), the State must prove two facts:
1. Any statements the licensee made to the complainant were false, and
2. At the time the licensee made such statements, he knew them to be false.
. .. [As to the] first fact, the State produced a newspaper advertisement for the property in question. The ad was listed under ‘Investment Property’ and stated ‘APTS. — 4 units’. The State also produced the contract of sale, on the back of which . .. [Nelson] wrote that the property was a ‘bona fide apartment house.’ From the testimony of .. . Mr. Taylor [sic], the Commission finds that... [Nelson] never mentioned to him that there was any type of zoning problem. In fact, ... [Nelson] told Mr. Taylor [sic] that he — Taylor [sic] — could have obtained the requisite license by making certain repairs.
No where, however, does it appear that . .. [Nelson] made any flat statement to the effect that there were no zoning problems.
.. . [T]he question the Commission must first determine is whether these statements and writings of .. . [Nelson] are false representations. The Commission finds that the ad, the statement on the back of the contract, and ... [Nelson’s] statement about the availability of a license clearly implied that there were no zoning problems affecting the usage of the structure as a four-unit apartment building. Because of this implication which the Commission finds so clear, in the absence of any disclaimer by ... [Nelson], the Commission concludes that ... [Nelson’s] ad, writing on the contract, and statement about the license are false by implying the existance [sic] of no problem when in fact there was clearly a substantial problem.
... As to the second fact — knowledge of ... [Nelson] at the time — the State presented an affidavit of ... [Nelson], which affidavit was dated March 4, 1975. Paragraphs 5 and 8 thereof indicate that, at the time the contract was signed, ... [Nelson] knew that there was a problem with the zoning of the property and that, in 1970, a license had been denied because of it.. .. This is confirmed by ... [Nelson’s] letter of October 8, 1975. ... The affidavit of Doug M. Smiley dated March 29, 1975 also confirms that. .. [Nelson] knew at the time of contract that the property did not have the requisite zoning for a four-unit apartment house.
... [Nelson] claims that the 1970 zoning decision was erroneous or a clerical error and that the apartments were a legal, non-conforming use. . .. [Nelson] bases this upon his allegation that a Use and Occupancy permit #5160U was issued in 1961. The County’s records are ... unclear, but fail to substantiate that a permit was indeed issued in 1961. The obvious zoning violation and the fact that there is no record of a previous application for a non-conforming use indicate that the permit was never issued.”

Judge Powers, for this Court, in Comm’r v. Cason, 34 Md. App. 487, 368 A. 2d 1067 (1977), discussed in depth the role of the courts when reviewing an appeal from an administrative agency. Comm’r makes transpicuous that irrespective of the test employed by the courts — substantial evidence, fairly debatable, clearly erroneous, or against the preponderance or weight of -the evidence — the court is limited in a review of the agency's finding and is not free to substitute its own finding for that of the agency. Even though we might disagree with the conclusions drawn by the agency from the evidence, we are not at liberty to disregard those conclusions and substitute our own. State Insurance Commissioner v. National Bureau of Casualty Underwriters, 248 Md. 292, 236 A. 2d 282 (1967).

We believe there was ample evidence for the Commission to find, as it did, that Nelson wilfully misrepresented the zoning situation to Tayler and knew at the time that he was so doing. Judge Mathias, in our view, properly upheld the findings of the Commission.

Motion for order as to jurisdiction denied.

Order affirmed.

Costs to be paid by appellant.

Lowe, J.,

concurring'.

Although I concur in the result reached by the majority, I cannot agree with reasons I and II why they believe that the statute of limitations does not apply. Because I think that waiver by nonassertion at the administrative and nisi prius levels is dispositive of the issue of limitations on this appeal, Md. Rule 1085, my opinion may well be an exercise in semantics. I am concerned, however, that we analogize a businessman’s license procedure to the responsibilities of the Court of Appeals in disciplining an officer of the Court in reason I.. Furthermore, it disturbs me when I see an appellate court perpetuating guidelines without support of reason, as appear in reason II.

I

The majority equates the disciplinary proceeding of a real estate salesman with the disciplinary proceeding of an attorney. But the very cases relied upon for that analogy rest on reasoning totally inapplicable to the lay world. The case quoted at length by the majority rejects any such analogy. Judge Levine, writing for the Court in Anne Arundel Co. Bar Ass’n v. Collins, 272 Md. 578, 582-583, stated:

“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 Braverman [v. Bar Assn. of Balto., 209 Md. 328], supra, we said:
‘The action of a court in exercising its power to disbar or suspend an attorney is judicial in character, but the inquiry is in the nature 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.” (emphasis added).

It is therefore clear that the sole basis for circumventing the limitations statute was the special relationship between an attorney and the court he serves. I see no basis for concluding that a realtor has a comparable relationship with the Real Estate Commission.

II

The second reason assigned by the majority is bifurcated. It first states that there is no “prosecution” or “suit” because prosecutions and suits must take place in a “court” and

“Patently, an administrative agency is not a ‘court’ ....” Majority Opinion p. 341.

The negatively restricted interpretation of the word “court” implicit in that statement does not appear to be supported by any dictionary definition. The twelve alternate definitions in The American Heritage Dictionary of the English Language do not restrict “court” to a particular room set aside for judicial trials and presided over by a constitutionally designated judge. To the contrary, the breadth of definition and variety of interpretation gives an entirely different picture:

“court ... 1. An extent of open ground partially or completely enclosed by walls or buildings; courtyard. 2. A short street; especially, an alley walled by buildings on three sides. 3. A large, open section of a building, often with a glass roof or skylight. 4. Formerly, a mansion or other large building standing in a courtyard. Now used only in proper names. 5. The place of residence of a sovereign or dignitary; a royal mansion or palace. 6. The retinue of a sovereign, including the royal family and his personal servants, advisers, ministers, and the like. 7. A sovereign’s governing body, including the council of ministers and state advisers. 8. A formal meeting called for and presided over by a sovereign. 9.a. A person or body of persons appointed to hear and submit a decision on civil cases, b. The building, hall or room in which cases are heard and determined, c. The regular session of a judicial assembly. 10. Any similar authorized tribunal having military or ecclesiastical jurisdiction. 11. An open, level area, marked with appropriate lines, upon which tennis, handball, basketball, or another game is played. 12. The body of directors of a corporation, a company, or other organization.”

The Oxford English Dictionary has 19 major listings and numerous sublistings for the word “court”. Black’s Law Dictionary, in an effort to be thorough, provides pages of alternatives which cannot be resorted to restrictively. Perhaps the most restrictive is the tenth definition of “court” in Webster’s New International Dictionary (2d ed.):

“10. Law. a The hall, chamber, or place where justice is administered, b The persons duly assembled under authority of law for the administration of justice, whether specifically appointed to exercise only judicial powers, as most modern courts, or combining judicial with legislative powers, as often formerly, and still in some cases, as that of the British Parliament, the legislature of Massachusetts, etc.; an official assembly legally met together for the transaction of judicial business; a judge or judges sitting for the hearing or trial of causes, c A tribunal established for the administration of justice, d The judge or judges, as distinguished from the counsel or jury, e The session of a judicial assembly.”

Even that does not fulfill the hopes of the majority since the administrative proceeding before the Real Estate Commission is judicial in nature. See Md. Code, Art. 56, §§ 224-225.

The second prong of the majority’s reasoning relies upon a statutory interpretation device resorted to by courts only when they have no other crutch upon which to lean in their search for Legislative intent:

“The Legislature, which is presumed to know of the interpretations made of statutes by the Attorney General, Jackson Marine Sales v. St. Dept., 32 Md. App. 213, 359 A. 2d 228 (1976) [cert. den. 278 Md. 725 (9/24/76)]; Demory Brothers v. Bd. of Pub. Works, 20 Md. App. 467, 316 A. 2d 529 (1974), aff'd, 273 Md. 320, 329 A. 2d 674 (1974); see also Crest Investment Trust, Inc. v. Cohen, 245 Md. 639, 648, 227 A. 2d 8, 13 (1967); Read Drug & Chemical Co. v. Claypoole, 165 Md. 250, 257-58, 166 A. 742, 745 (1933), has met at least annually since then Attorney General Hammond handed down his opinion in 1951, but that body has not changed the statute. Thus, the General Assembly has sub silentio tacitly approved the Attorney General’s interpretation.” Majority Opinion p. 342.

As so often happens in the law, the original sound reasoning of one case is used synergistically to reach one decision, then another, over the years. When a more distinctive factual premise arises, one of the synergistic elements is isolated and used to support a cause wherein the other elements, including those necessary to the original reasoning, are inapposite. That is what has occurred here.

In seeking Legislative intent, courts since the inception of our judicial system have held that they should refrain from interpreting a statute differently from the prevailing administrative interpretation except for the most potent and urgent reasons. See Hays v. Richardson, 1 G & J 366; Salisbury Beauty School v. St. Bd., 268 Md. 32, 65-66. Administrative construction and enforcement remains an important interpretive guide, see Public Serv. Comm’n v. Howard Res., 271 Md. 141, 150-152, and our reports are replete with the variety of its application.

That rule was at the base of the 1933 opinion in Read Drug & Chem. Co. v. Claypoole, 165 Md. 250, but there an Attorney General’s opinion was relied upon to show, first, what the administrative interpretation was, and second, as a makeweight by saying that the legal opinion as well as the administrative construction should be given great weight:

“ . .. such legal interpretation and administrative construction should be given great consideration in determining the legislative intent.” Id. at 257. (emphasis added).

What had once been a helpful interpretative guide soon became a substantial source for determining Legislative intent. By 1966, in Crest Investment v. Cohen, 245 Md. 639, the Court kept the makeweight and discarded the scale. There the Court relied upon the existence of a 9 year old Attorney General’s opinion to an agency to infer Legislative acquiescence by silence, but failed to mention the 9 years of administrative application of the Attorney General’s construction. It would appear that the Court charged the Legislature with knowledge of the opinion because it had been expressly recognized in a study commission report submitted to the Legislature. 245 Md. at 648, n. 7.

Crest would seem to stand on its peculiar facts had we not fallen into its trap by reciting it as a rule of statutory construction rather than a mere makeweight, Demory Brothers v. Bd. of Pub. Works, 20 Md. App. 467, 473, aff'd 273 Md. 320, although we later preserved the distinction of limiting the Attorney General’s opinion to its peculiar role as added support to the administrative-construction-and-enforcement principle. See Jackson Marine Sales v. St. Dep’t, 32 Md. App. 213, 217, cert. den. 278 Md. 725 (9/24/76).

It is time we placed this interpretative guide in proper perspective, instead of perpetuating its unwarranted growth. An Attorney General’s opinion is simply the considered opinion of another lawyer. If that opinion is solicited and received by the General Assembly, or was before it as of record, the Legislature can honestly. be charged with its knowledge and an inference can be drawn from subsequent inaction. But for a court to charge the Legislature with the knowledge of every opinion rendered to every agency, department, board or other State institution demands too much credulity for even an appellate court. Perhaps contrary to our own sense of self-esteem, common sense tells us that those overburdened public servants probably do not even have time to read our opinions, let alone the myriad rendered by the Attorney General upon every official request. I would restrict this presumed knowledge — silent acquiescence — to its limited role, or discard it altogether in reaching for the Legislative intent when interpreting an unclear statute.

On the other hand, the Legislature can be charged with knowledge of the administration of its laws and their consequent administrative interpretation. It annually appropriates funds to effect that administration and has standing committees statutorily created to review administrative procedure and conduct. Md. Code, Art. 40, § 40A. There is also some logic in pointing out an Attorney General’s interpretation submitted to the administrative agency, to indicate with precision what construction had been placed upon the statute by the agency.

It is, of course, only when the words of a statute are not definite and free of ambiguity that we need seek Legislative intent. But when the meaning is ambiguous, the verbal significance may be divined by examining the evil the Legislature sought to inhibit, Stoll v. Baltimore, 163 Md. 282, 292, and it is the language of the statute itself that provides the primary source for determining Legislative intent. State v. Fabritz, 276 Md. 416, 421.

It is my opinion that the statute of limitations now found in Md. Code, Cts. Art., § 5-107, was intended from its inception to relate only to monetary “fines”, monetary “penalties” and monetary “forfeitures”. If that be so the license revocation hearing would not be subject to the one year limitation. This view can be justified by Black's Law Dictionary definitions of the words used in the statute. “Fine” is defined as meaning:

“To impose a pecuniary punishment or mulct.
To sentence a person convicted of an offense to pay a penalty in money.”

“Penalty” and “forfeiture” carry a variety of meanings. However, under the rule of ejusdem generis, we do not construe those terms in their broadest sense but apply them only to things of the same general kind or class as that specifically mentioned, i.e., “fine”. Therefore, an alternative definition in Black’s for the term “penalty” is most ■appropriate here:

“The term also denotes money recoverable by virtue of a statute imposing a payment by way of punishment.” (authorities deleted).

The same rule of interpretation applies to “forfeiture”. The ninth definition in Black’s is the most appropriate in context:

“9. A thing or sum of money forfeited. Something imposed as a punishment for an offense or delinquency. The word in this sense is frequently associated with the word ‘penalty.’ ” (authorities deleted).

Applying the rule of ejusdem generis is not only a reasonable application but a most appropriate one in light of the Legislative history. While we should construe limitations statutes in furtherance of their objectives, Green v. Johnson, 3 G & J 389, their objectives must often be found in light of the purposes and objects sought to be attained by their enactment. See McMahan v. Dorchester Fert. Co., 184 Md. 155, 159-160. The time and circumstances under which a statute was originally passed should be taken into consideration in ascertaining the true intention of the Legislature. Maurice v. Worden, 52 Md. 283, 294.

The original enactment of § 5-107 was as a last clause after-thought, applied to a lengthy procedural law entitled:

“An Act to direct in which manner all fines, forfeitures and penalties, shall be recovered, and in what manner fines, forfeitures, penalties and amerciaments, shall be applied.” Dorsey's Laws of Maryland. — 1777, Ch. 6.

The entire statute dealt with money payments for wrongful acts, by whatever name called. Even when it was first changed, Laws 1801, Ch. 74, § 32, it still dealt with monetary penalties. Nowhere is there apparent in its history any indication that the Legislature ever intended to deviate from applying a one year limitation upon the institution of a suit or prosecution for any “fine, penalty, or forfeiture” other than in a pecuniary sense.

Therefore, if reasons need to be assigned for our interpretation of that statute, I would have felt more comfortable in seeking Legislative intent through statutory history than by relying on a presumed tacit acquiescence in a lawyer’s opinion rendered to someone else, and an analogy between a licensed business and a learned profession.

      . The complainant is shown in the record as residing at 4409 Glenbury Road. At times, the Queensbury property is referred to in the record as the Glenbury.

      . Under date of September 23, 1974, the Real Estate Commission wrote to Tayler with respect to Nelson, “Please be advised that a complete investigation and review of the above captioned case by the Real Estate Commission of Maryland has determined that there has been no violation of the Real Estate Law.” The Commission concluded by stating that it was “dismissing this case and closing our file.”

      . A similar opinion was rendered in 54 Op. Att’y Gen. 220 (1969).


text:
    SUBSEQUENT INJURY FUND v. STATE ROADS COMMISSION et al.
    [No. 695,
    September Term, 1976.]

      Decided March 15, 1977.

    The cause was argued before Gilbert, C. J., and Morton and Lowe, JJ.

      H. George Meredith, Jr., Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellant.

      Charles R. Goldsborough, Jr., Special Attorney, with whom were Francis B. Burch, Attorney General, and J. Howard Holzer, Special Attorney, on the brief, for appellees State Roads Commission and State Accident Fund.

      Herbert J. Arnold and Robert Earl Wilson, with whom were Arnold, Beauchemin & Huber, P.A. on the brief, for other appellee.
   Lowe, J.,

delivered the opinion of the Court.

The sole question to be answered in this case is whether the Subsequent Injury Fund’s liability under Md. Code, Art. 101, § 66, may be satisfied and discharged pro tanto or in full when the employer furnishes a pension benefit to the claimant under the provisions of Md. Code, Art. 101, § 33. Factually, it will suffice to relate that the claimant, Edward F. Jarzynski, was an employee of the State of Maryland through the State Roads Commission and was injured in that capacity. Because of physical impairments from a prior disability, he was entitled to and received an award from the Subsequent Injury Fund pursuant to § 66, as well as from his employer, the State Roads Commission, through its insurer the State Accident Fund.

The Workmen’s Compensation Commission denied the State Accident Fund and the Subsequent Injury Fund the setoff to which the employers set forth in Md. Code, Art. .101, § 21 (a) (2) are entitled pursuant to § 33. An appeal was taken to the Baltimore City Court which reversed that holding as to the State Accident Fund by granting summary judgment in favor of the employer and insurer against the claimant, relying on Nooe v. City of Baltimore, 28 Md. App. 348 and Mazor v. Dep’t of Correction, 30 Md. App. 394. As to the Subsequent Injury Fund, however, the court denied its motion for summary judgment and granted claimant’s motion against the Fund. The court held that it was not the intention of the Legislature to include the Subsequent. Injury Fund “within the parameters [sic] of Article 101 § 33.”

We do not agree.

On February 8, 1977 the Court of Appeals affirmed the opinion written for us by Judge Menchine in Mazor, supra. Mazor v. Dep’t of Correction, 279 Md. 355 (1977). The Court, through Judge Levine, said, inter alia, that § 33 was constitutional and that the insurer, as distinguished from the employer, was also entitled to a discharge under that section. Although in footnote 8 of its opinion the Court expressly declined to decide the question of § 33’s applicability to the Subsequent Injury Fund because that issue was not properly before it, we find the reasoning of that case most persuasive that the Subsequent Injury Fund is entitled to the benefits of § 33.

Citing abundant authority which we shall omit, the Court set forth six principal guidelines of statutory interpretation:

“[T]he cardinal rule of construction of a statute is to ascertain and carry out the real intention of the Legislature. . . .
The primary source from which we glean this intention is the language of the statute itself. . . .
And in construing a statute we accord the words their ordinary and natural signification. . . .
If reasonably possible, a statute is to be read so that no word, phrase, clause or sentence is rendered surplusage or meaningless. . . .
Similarly, wherever possible an interpretation should be given to statutory language which will not lead to absurd consequences. . . .
Moreover, if the statute is part of a general statutory scheme or system, the sections must be read together to ascertain the true intention of the Legislature.” Id., slip op. at 5.

We will therefore look first at the words of the statute to glean the Legislature’s intention.

The key words indicative of intent all appear in the same sentence. First we look for what it is that will satisfy the obligation. Section 33 tells us:

“the . . . benefits . . . furnished by the employer shall satisfy and discharge . . .”

the obligation. We know from § 66 (2) that the Subsequent Injury Fund is financed by payments from the employer or the employer’s insurer of 5% on all awards rendered against the employer for permanent disability and death. We will judicially notice (if common sense does not suffice to tell us) that any such payments by an insurer will be reflected in the premiums paid by the employer. Thus the Fund is a benefit “furnished by the employer”. The Legislature’s use of that phrase in connection with the term “benefit” was obviously designed to avoid attempting to anticipate and list each benefit which is directly or indirectly derived from the employer and chance a restrictive interpretation by a court resorting to the rule of ejusdem generis.

That conclusion is reemphasized by what we find the Legislature expressly stated is to be satisfied in the latter part of the relevant sentence in § 33 (c). We are told that the pension payments shall satisfy and discharge:

“the liability or obligation of the employer for any benefit under this article.” (emphasis added).

Such broad terms were obviously intended to avoid the restrictive interpretation and just as obviously to include the Subsequent Injury Fund as one of the “any” benefits under the article.

By according “the words of the Act their ordinary and natural signification” without rendering any of them “surplusage or meaningless”, it is apparent that the Fund was intended to be included within the context of § 33.

This literal interpretation also fits the “general statutory scheme or system” of the Workmen’s Compensation article. For us to read into that statutory scheme an intent to award an injured person with a preexisting condition substantially more than would be provided an injured person with equal disability but without previous impairment would certainly lead to an absurd consequence. No rational reason is apparent why the Legislature would deny a duplication of benefits on the one hand and permit it on the other. That rationale is cogently explicated by Larson’s Workmen’s Compensation Law, §§ 59.41 and 97.10, which reasoning we adopted in our Mazor, 30 Md. App. at 399-400:

“§59.41. . .
There is a practical reason for the holding that awards for successive or concurrent permanent injuries should not take the form of weekly payments higher than the weekly maxima for total disability. At a given moment in time, a man can be no more than totally disabled, and if he is allowed to draw weekly benefits simultaneously from a permanent total and a permanent partial award, it may be argued that it will be more profitable for him to be disabled than to be well — a situation which compensation law always studiously avoids in order to prevent inducement to malingering.” (footnotes omitted).
“§97.10 Impropriety of duplicate benefits
Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a workman undergoes a period of wage loss due to all three conditions, it does not follow that he should receive three sets of benefits simultaneously and thereby recover more than his actual wage. He is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable, once it is recognized that workmen’s compensation, unemployment compensation, non-occupational sickness and disability insurance, and old age and survivors’ insurance are all parts of a system based upon a common principle. If this is denied then all coordination becomes impossible and social legislation becomes a grab-bag of assorted unrelated benefits. For example, if workmen’s compensation is thought of as a quasi-tort recovery, there will be a temptation to say that the injured workman should be entitled to keep the entire recovery without reference to any other legislative benefits he may receive for the same wage loss. Again, if non-occupational disability insurance is viewed, as it was for a time in Rhode Island, as essentially equivalent to private health and accident insurance, the argument will be heard that a worker had just as much right to keep both occupational and non-occupational disability benefits as he would have to collect both workmen’s compensation and the proceeds of a private accident policy.”

See also Nooe, supra, 28 Md. App. at 352.

We therefore reverse the judgment of the Baltimore City Court as it was granted by order of June 11, 1976 upon claimant Jarzynski’s Motion for Summary Judgment against the Subsequent Injury Fund, and we enter judgment on behalf of the Subsequent Injury Fund against Jarzynski, notwithstanding .that it did not file a cross-motion for summary judgment. See Md. Rule 610 d.l. We affirm that part of the order granting Summary Judgment for the employer State Roads Commission and the insurer, State Accident Fund, against Jarzynski.

Judgment reversed in part and affirmed in part.

Costs to be paid by appellee Jarzynski.

      . Jarzynski had been awarded non-contributory pension benefits by his employer which exceeded the total monthly workmen’s compensation benefits which his employer, its insurer, and the Subsequent Injury Fund has been ordered to pay him. This pension triggered the setoff attempts.


author: Thompson, J.,

text:
    HAROLD H. DORSEY v. PAUL M. WROTEN et ux.
    [No. 703,
    September Term, 1976.]

      Decided March 16, 1977.

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

      William J. Pittler, P.A. for appellant.

      Raymond E. Back and Charles D. Hollman, with whom were Cable, McDaniel, Bowie & Bond on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

Harold H. Dorsey, the appellant, appeals from an order refusing to set aside an unenrolled consent decree and the granting of a petition to enforce the decree by the Circuit Court for Carroll County. We find that the trial court abused its discretion by denying appellant’s petition to set aside the decree; we reverse.

On February 7, 1975, the appellant entered into a contract with the appellees, Paul M. and Patricia L. Wroten, for the sale of a parcel of land, owned by the appellant, in Carroll County, Maryland. As a part of the contract, the appellant further agreed to construct a house. Due to a dispute between the appellant and the developers of the subdivision, which contained the subject property, over a restrictive covenant, a conflict arose between the appellant and appellees concerning completion and possession of the house under construction. As a result of this, a Bill of Complaint for Specific Performance was filed in the Circuit Court for Carroll County by the appellees. Appellant answered this bill of complaint and filed a Motion for Summary Judgment, which was denied. The case was set for trial on February 23, 1976.

When the case was called, the attorneys for each side approached the bench and requested a “settlement type conference” in the judge’s chambers. After it was explained to him that the attorneys were attempting to work out a settlement, the trial judge stated that there were no other cases scheduled for the remainder of the day so the lawyers could confer with their clients and attempt to work out a settlement; if one could not be reached, then they could return to the courtroom and try the case. Each attorney conferred with his client individually. After the discussion with his attorney, the appellant maintained reservations about the settlement. Appellant and his attorney met with the attorney for the appellees. There is a discrepancy in the testimony as to whether the appellant actually agreed to the final settlement, but the trial judge found that he did, which we accept. At approximately 12:00 p.m., the lawyers met a second time with the trial judge and informed him that a final settlement had been reached. The trial judge requested that a consent decree be prepared and presented to him. At 3:15 p.m. the appellant informed his attorney that he would not agree to a consent decree. Counsel for the appellant met a third time with the trial judge and informed him that the appellant no longer agreed to a settlement. The trial judge stated that he considered the matter settled and that he would sign the “consent” decree when it was presented. On February 26,1976, the “consent” decree was signed.

It is well established that courts will look with favor on compromise or settlement of lawsuits in the interest of efficient and economical administration of justice and the lessening of friction and acrimony. Chertkof v. Harry C. Weiskittel Co., 251 Md. 544, 550, 248 A. 2d 373 (1968). While a settlement agreement is subject to the general rules of contract such as the adequacy of consideration, a consent decree adds a critical element to the contractual act — judicial conclusiveness. Kirsner v. Fleischmann, 261 Md. 164, 170, 274 A. 2d 339 (1971). A consent decree is entered under the eye and with the sanction of the court and should be considered a judicial act not open to question or controversy in a collateral proceeding. State, ex. rel. Cox v. Maryland Electric Railways Co., 126 Md. 300, 304, 95 A. 43 (1915). The only question that can be raised concerning a consent decree is whether in fact the decree was entered by consent. Prince George’s County v. Barron, 19 Md. App. 348, 349, 311 A. 2d 453 (1973).

In Mercantile Trust Co. v. Schloss, 165 Md. 18, 24, 166 A. 599 (1933), the Court of Appeals refused to grant a motion to dismiss an appeal on the ground that the decree was a consent decree from which no appeal would lie. The Court, after examining correspondence between the parties, was unwilling to say that the decree, as signed, was agreed to by all the parties. It stated that the proper practice would be for the chancellor to state in the decree that it is being passed by consent or have the consent of the parties endorsed therein. Id. at 25. Of course, it would be an abuse of discretion for the chancellor to state in the decree that it was being consented to when it was not.

In the case at bar, even though the appellant orally agreed to a settlement agreement, it is obvious that he withdrew that consent before the final meeting with the trial judge. It is also apparent that both the trial judge and the appellees had full knowledge that the appellant was not consenting to the decree two days before it was signed. We find that the trial judge abused his discretion under Maryland Rule 625 a by denying the motion to set aside the unenrolled consent decree, where the court at the time of the entry of the decree knew that the appellant did not so consent.

Some cases hold that even a written stipulation or a stipulation made in open court is not binding until judgment is actually entered. Norton Shores v. Carr, 59 Mich. App. 561, 229 N.W.2d 848 (1975); Van Donselaar v. Van Donselaar, 249 Iowa 504, 87 N.W.2d 311 (1958); Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951); Williamson v. Williamson, 224 N. C. 474, 31 S.E.2d 367 (1944); Jacobs v. Steinbrink, 242 App. Div. 197, 273 N.Y.S. 498 (1934).

In Re Cartmell's Estate, 120 Vt. 234, 138 A. 2d 592 (1958), relying on Garretson v. Altomari, 190 Iowa 1194, 181 N. W. 400 (1921), held that to allow consent to a judgment to be withdrawn prior to actual entry of the judgment is a matter within the discretion of the court. Garretson v. Altomari, supra, was expressly overruled by Van Donselaar v. Van Donselaar, supra at 314. The Vermont Court also based its reasoning on the idea that Vermont’s official pretrial proceedings have the same legal effect as proceedings in open court.

In Bohlman v. Big River Oil Company, 124 N.W.2d 835 (N.D. 1963), the Court recognized the rule that the power of the court to enter judgment by consent is dependent on the existence of actual consent of the parties at the time the judgment is entered but declined to follow the rule where the parties had dictated, an agreement into the record and the judge, in open court, had approved the agreement, even though actual judgment had not been entered at the time one of the parties sought to disavow the agreement.

Although the precise question here decided was not discussed in any detail, it seems that Maryland follows the rule of the latter case. See Chertkof v. Weiskittel, supra, which held an agreement dictated into the record binding.

We hold the entry of a judgment by consent implies that the terms and conditions have been agreed upon and consent thereto given in open court or by filed stipulation. In the instant case, the chancellor found that the parties had agreed to the terms, but it is obvious there was no consent thereto in open court nor was there a written stipulation filed in court.

Order reversed.

Case remanded for further proceedings.

Appellant to pay the costs.

      . Under Maryland Rule 601, in the absence of a judge, the clerk may enter the consent judgment by the consent of the parties in the same manner as if the judge were present. When he receives an order from the parties to enter a consent judgment, the clerk has no discretion or initiative in the matter and no right to make a judicial determination whether or not to make such an entry. Corey v. Carback, 201 Md. 389, 402, 94 A. 2d 629 (1953). By its nature, therefore, a consent decree cannot be entered unless both parties agree to the order which is presented to the clerk.

      . See Ryan v. Johnson, 220 Md. 70, 150 A. 2d 906 (1959) as to abuse of discretion.