text:
    CARLOS B. THOMAS v. IDA M. THOMAS
    [No. 895,
    September Term, 1980.]

      Decided March 11, 1981.

      The cause was argued before Mason, Liss and Wilner, JJ.

      H. Michael Rankin for appellant.

      Theodore L. Mast, with whom were Stephen H. Kiefert, Joseph F. Gaffígan, Bill L. Yoho and Robert S. Hoyert on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

We are presented here, for the first time, with a most interesting aspect of the law of divorce and alimony, one that involves not only the interpretation of a century-old statute but the even more ancient and arcane tenets of English ecclesiastical law as they have filtered down to us through the Maryland common law. What is the effect of a reconciliation and subsequent parting of the ways upon an award of alimony arising from a decree of divorce a mensa et thoro?

Appellant commenced this proceeding on February 10, 1977, with the filing of a Bill in the Circuit Court for Prince George’s County seeking a divorce a mensa et thoro from appellee. That action was docketed as DR 77-463. Acknowledging himself to be a citizen of Trinidad, but a permanent resident of the United States and a legal resident of Prince George’s County, he averred that appellee had, without just cause, deserted him and the marital abode on September 18, 1976. In addition to the divorce, he sought custody of the two adopted minor children of the parties who, at the time, were residing with him.

Appellee answered this Bill on June 23,1977, denying the accusatory allegations and asserting that she then had custody of the children. It appears that, also on June 23, appellant returned to Trinidad, having accepted employment there; and at some point appellee moved back into the marital home. On July 7, 1977, appellee filed, in the same case, a cross-bill for divorce a mensa et thoro, or, in the alternative, for divorce a vinculo matrimonii, claiming desertion, cruelty, and adultery on appellant’s part. The allegation as to desertion was that appellant unjustly abandoned her on February 25, 1977.

According to the certificate of service appended to it, a copy of the cross-bill was delivered to appellant’s counsel, and, when no answer to it was forthcoming within the 15 days allowed by law, appellee, on July 26, 1977, moved for a decree pro confesso. On August 4, 1977, such a decree was entered, and the matter was referred to the Domestic Relations Master to take testimony in support of the cross-bill.

On September 8,1977, the master conducted a hearing on the cross-bill. Appellant, of course, was not present, and indeed claims that he had no knowledge either of the decree pro confesso or the proceeding before the master. Based upon the evidence presented at the hearing, the master recommended, and on September 22, 1977, the court entered, a decree of divorce a mensa et thoro grounded upon appellant’s desertion occurring February 25, 1977. The decree also awarded custody of the children to appellee, ordered appellant to pay to appellee the sum of $600 a month child support and $600 a month alimony, both accounting from September 8, 1977, and ordered him to contribute $1,800 toward appellee’s counsel fees.

Appellant, still in Trinidad, remained blissfully unaware of all this. He returned to the United States on December 4, 1977, and, believing all prior proceedings to have been dismissed, resumed cohabitation with his legally estranged wife and his children at the marital abode. Unfortunately, this was to be but a temporary reunion. On December 30, 1977, appellee, for reasons not appearing in the record, set fire to the marital home, forcing the family to seek other quarters. They remained together, nevertheless, until March 17, 1978, when appellant left, taking the children with him.

Twelve days later — on March 29 — appellant, still unaware of the September decree, filed a new bill for divorce a mensa et thoro (docketed as DR 78-1149), charging appellee with cruelty and constructive desertion as of March 17, 1978. He averred general conduct on her part that was violent, humiliating, and degrading to him, and specifically mentioned her burning of the marital home and her physical abuse of the children, all of which made the marriage intolerable and forced him (and the children) to leave.

Appellee responded with an answer denying the accusatory allegations and claiming, in a plea of res judicata, that all issues in the action had already been decided by the decree rendered on her cross-bill in the earlier action. She responded also with a petition filed in the other case (DR 77-463) to hold appellant in contempt of court for failing to pay the alimony and child support ordered in the September decree. It was these pleadings that first actually apprised appellant of the subsisting divorce and his obligation for spousal and child support.

Appellee’s contempt petition in DR 77-463 came before the master on July 7, 1978. At that hearing, appellant filed a written petition to modify the September, 1977, decree, asserting therein (1) that he was unaware that the decree had been passed, (2) that subsequent to the decree the parties had reconciled, and (3) that he adopted "the statements of fact contained in his Bill of Complaint filed in Equity No. DR 78-1149,” which he prayed be incorporated by reference. He asked in his petition for custody of the children' and a striking of all sums "previously awarded for child support, alimony, and attorney fees....”

We are told that, because appellee had no opportunity to answer this petition, it was not considered at that time by the master. Upon the evidence presented, however, the master concluded that (1) by stipulation of the parties, appellant should have custody of the children, (2) appellant not be adjudicated in contempt of court, and (3) "the arrears in child support and alimony be assessed at zero” as of July 7, 1978. This last recommendation arose from the master’s finding (1) that when appellant went to Trinidad, he left $10,000 in a joint bank account, one-half of which was his, and that appellee spent the full amount for the support of herself and the children, and (2) that "by reconciling, [appellant’s] obligation to pay child support and alimony to [appellee] terminated.”

Appellee excepted to the recommendation as to arrearage, asserting that the master erred in concluding that "the parties’ temporary reconciliation rendered this Courts’ [sic] decree a nullity ...” and in recommending that no arrearage in alimony be assessed. She asked that the court enforce the provision in the decree for alimony and remand the matter back to the master to assess alimony arrearages based upon the validity of the subsisting decree.

On December 7,1978, the court filed an opinion and order agreeing in part and disagreeing in part with what the master had done. It agreed that the obligation for alimony had terminated, or been suspended, during the period of the reconciliation, but not before and not after. There was little dispute as to the accrual of alimony during the three-month period prior to the reconciliation; appellant’s only defense as to that was that the $3,600 accrual for that period was offset by his share of the bank account expended by appellee. As to the reconciliation period itself, the court seemed to draw upon two theories: first, that, as a matter of law, alimony actually ceases during such a period; and, second, that a reconciliation constitutes "a substantial change in circumstances justifying modification.” Neither theory, however, was applied to the period following the second break-up in March, 1978. As to that, the court concluded that a "reconciliation alone is not a sufficient change in circumstance to permit modification of the original decree so that no future alimony was required of [appellant].”

Upon this analysis, the court found an arrearage of alimony and child support for the pre-reconciliation period of $3,600, no arrearage for the period of reconciliation, and an alimony arrearage of $2,200 for the nearly four-month period between the second separation and the master’s hearing. This total of $5,800 exceeded appellant’s $5,000 share of the bank account. The court thereupon remanded the case to the master "for further hearing and assessment of alimony arrearages, in accordance with this opinion.”

On remand, the master held another evidentiary hearing and considered the matters at issue as of then (December 21, 1978). In his second report, he first noted his disagreement with the court’s conclusion that alimony did not terminate by reason of the reconciliation; but he proceeded nevertheless in accordance with that determination. As to the period preceding the reconciliation, he found a gross arrearage of $3,400 ($1,700 alimony and $1,700 child support). Against that he applied appellant’s $5,000 share of the bank account, $2,500 of which he allocated to alimony and $2,500 to child support. That left an $800 credit, as to each, in appellant’s favor.

"Assuming, without finding, that [appellee] is entitled to alimony after the 17th day of March, 1978,” the master found an accrual of alimony in the amount of $5,480 for that period ($600 a month for the nine months, four days to the date of the second hearing). Deducting the $800 credit left over from the bank account, he found a net accrual of $4,680. Finding, however, that appellant was fully justified in leaving the home in March by reason of appellee’s conduct (which he concluded amounted to a constructive desertion), the master recommended that no arrearage be assessed and that the decree be amended to terminate alimony payments from and after March 17, 1978.

Once again appellee filed exceptions, contending, among other things, that the master erred in finding a constructive desertion by appellee and that he erred as well in recommending that no arrearage be assessed. Once again, the court agreed. It concluded that, as the case had been remanded to the master solely to calculate an arrearage, the master exceeded the scope of his authority in concluding that appellee was guilty of a constructive desertion and that he therefore erred in considering such desertion as a basis for recommending no assessment of arrearage. Accordingly, although the court accepted the master’s mathematics, it rejected his recommendation, and, on May 29,1980, decreed an arrearage of $4,680.

In this appeal, appellant claims that the court erred in both its conclusions. He asserts that the issue of appellee’s conduct, as raised in his petition to modify the original decree, was properly before the master, and that as a matter of law the reconciliation served to terminate his obligation for alimony. Because we agree with his latter contention, we shall find it unnecessary to consider the former.

As has been pointed out on a number of occasions, although our law of divorce and alimony was generally derived from the English experience, it did not come to us through the English common law. See Kapneck v. Kapneck, 31 Md. App. 410 (1976), cert. den. 278 Md. 739. The English practice was described by the Court of Appeals in Courson v. Courson, 213 Md. 183, 185 (1957):

"From the time of Foliamb’s case (44 Eliz.), 3 Salk. 138, (about 1602) until the divorce act of 20 and 21 Viet. ch. 85 (about 1857), no absolute divorce could be judicially granted in England. The only legal separation recognized was a divorce from bed and board upon a decree of the Ecclesiastical Court. These Courts, as an incident to the decree, granted alimony, temporary or permanent, but only as a part of the decree a mensa et thoro. Alimony, therefore, under the English law had no independent existence, and no Court, not even the Ecclesiastical, could grant alimony when it was the only relief sought.”

As the Court further pointed out in Courson, the Maryland practice was patterned only partly upon the English. Until 1841, the granting of an absolute divorce remained exclusively a legislative prerogative and was effected by Act of the General Assembly. Because there were no ecclesiastical courts here, however, jurisdiction over actions for divorce a mensa et thoro and attendant claims for alimony was assumed by the High Court of Chancery. See Crane v. Meginnis, 1 G. & J. 463, 473 et seq. (1829). In point of fact, however, the chancery court actually assumed a somewhat broader jurisdiction than that reposed in the English ecclesiastical courts.

As noted in Courson and in Emerson v. Emerson, 120 Md. 584 (1913), the ecclesiastical courts awarded alimony only as part of a decree of divorce a mensa et thoro; there was no separate action permitted just for alimony. See 2 Bishop on Marriage and Divorce, §§ 351, 352 (4th ed. 1864). Yet it appears that from a very early time, the Maryland chancery court presupposed and occasionally exercised the authority to award alimony where no divorce was granted, and indeed where an a mensa divorce was not even sought. See, for example, Lynthecumb’s Case (1738), Scott’s Case (1747), and Govane’s Case (1752) noted in Helms v. Franciscus, 2 Bland. 544, 565 et seq., note (f) (1830); also Hewitt v. Hewitt, 1 Bland. 100 (1826); Jamison v. Jamison, 4 Md. Ch. 289 (1847); Galwith v. Galwith (1689), reported in 4 H. & McH. 477. The precise authority for such a practice, at least in Provincial times, was questionable, as it cannot be said to have emanated from the ecclesiastical law or practice. It appears that the authority was simply assumed as part of inherent chancery jurisdiction. As the Court observed in Stewart v. Stewart, 105 Md. 297, 300 (1907):

"From a period before the Revolution ... the Court of Chancery in this State had full jurisdiction in cases of alimony though no divorce had been decreed or was asked for, and though the case made by the bill and proof, would not, according to the Ecclesiastical Courts in England, entitle her to a divorce a mensa et thoro.”

See also 2 Bishop, §§ 355, 356; Taylor v. Taylor, 108 Md. 129 (1908).

By Acts of 1777, ch. 12, an Act generally regulating marriage, the General Assembly confirmed the authority of the chancery courts over actions for alimony; but it did so in a curious way. Section 14 of that Act empowered the chancellor to hear and determine "all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there.” This law, with but occasional changes in style, remains on the books as Courts article, § 3-603, and governs this case in its present posture. It is arguable, of course, that by describing the chancellor’s jurisdiction over alimony requests in the context of the ecclesiastical practice, the Legislature intended to restrict that jurisdiction to cases where an a mensa decree was awarded; but the statute was not interpreted in that manner. Instead, it has been viewed as merely putting the legislative imprimatur on the practice theretofore followed by the chancery court. See Jamison v. Jamison, supra, 4 Md. Ch. 289; Wallingsford v. Wallingsford, 6 H. & J. 485, 488 (1825); Wright v. Wright, 2 Md. 429, 450 (1852); Dunnock v. Dunnock, 3 Md. Ch. 140, 143 (1852). Cf. Crane v. Meginnis, supra, 1 G. & J. 463.

By Acts of 1841, ch. 262, the General Assembly first conferred statutory jurisdiction over divorce actions on the equity courts. The Act set forth the grounds cognizable for a vinculo and a mensa divorces, confirmed the preexisting authority of equity over the latter, and, for the first time, expanded that authority to include the former. Section 3 provided that "in all cases where a divorce is decreed, the court passing the same shall have full power to award alimony to the wife....”

The effect of that last provision was, for a time, uncertain. In Dunnock v. Dunnock, supra, 3 Md. Ch. 140, Chancellor Johnson concluded that it did not change the ability of the equity court to award alimony independent of a divorce; and in Jamison v. Jamison, supra, 4 Md. Ch. 289, he seemed to conclude that alimony could be granted even if grounds for a divorce were not shown. The Court of Appeals made clear that that was not the case, however, in Outlaw v. Outlaw, 118 Md. 498 (1912). It there adopted the principle laid down by Chancellor Bland in Helms v. Franciscus, supra, 2 Bland. 544, that the court "can not allow itself to receive any matter as a sufficient ground for granting alimony alone, which would not be a sufficient foundation in England for granting a divorce a mensa et thoro together with its incident alimony. ...” See 118 Md. at 503; also Hoodv. Hood, 138 Md. 355 (1921); Walker v. Walker, 125 Md. 649 (1915).

It thus appears that, although after 1841 the jurisdiction of the equity courts over divorce and alimony was a statutory one, it still remained tied in certain material respects to the English ecclesiastical practice. The rule was expressed thusly in Emerson v. Emerson, supra, 120 Md. at 590:

"Our understanding of alimony and its incidents has been borrowed from the decisions of the Ecclesiastical Courts, and this Court has, on several occasions, said that in divorce cases the Courts of Equity of this State do not sit in the exercise of their general equitable jurisdiction, but as a Divorce Court, and are governed by the rules and principles established in the Ecclesiastical Courts of England, so far as they are consistent with the Code.” (Emphasis supplied.)

We turn, then, at least initially, back to the ecclesiastical law which, as we have noted, permitted alimony only as an incident to an a mensa divorce. The nature of an a mensa decree, under ecclesiastical law, was that it merely authorized the parties to live apart from one another; but once they chose not to do so, it had no further effect. A reconciliation, in other words, "of its own force, annulled] the sentence of separation.” Bishop, supra, § 729; also Poynter, Doctrine and Practice of the Ecclesiastical Courts in Doctors’ Commons on Various Points Relative to the Subject of Marriage and Divorce, p. 182 (2nd ed. 1836). This, indeed, was evident from the very form of the a mensa decree issued by the ecclesiastical courts, which expressly provided for a termination upon reconciliation. Thus, at ecclesiastical law, as the alimony emanated solely from the divorce, it too would automatically terminate upon a reconciliation.

The Maryland courts followed that practice. The early alimony decrees issued by the equity courts also expressly provided that the obligation would cease upon a reconciliation, and, more important, in Wallingsford v. Wallingsford, supra, 6 H. & J. 485, the Court of Appeals imposed that condition as part of its very definition of alimony. In an oft-quoted statement, it said, at p. 488:

"Alimony is a maintenance afforded to the wife, where the husband refuses to give it, or where from his improper conduct compels her to separate from him. It is not a portion of his real estate, to be assigned to her in fee simple, subject to her control, or to be sold at her pleasure, but a provision for her support, to continue during their joint lives, or so long as they live separate. Upon the death of either, or upon their mutual consent to live together, it ceases....” (Emphasis supplied.)

This statement from Wallingsford has a significance not entirely and immediately apparent from the mere wording of it. Ecclesiastical alimony terminated upon a reconciliation because it was inextricably tied to the a mensa divorce from which it necessarily emanated, and that divorce terminated upon reconciliation. But that was not the condition in Maryland and never had been; and indeed Wallingsford itself involved a petition for alimony alone. Thus, although at the time an a mensa decree would still itself terminate by virtue of a reconciliation, as it did under ecclesiastical practice, the Wallingsford Court appeared to make that also a condition of alimony, whether or not it arose from a divorce.

That became important when, by Acts of 1872, ch. 272, the General Assembly provided that an a mensa decree "may be revoked at any time thereafter by the court granting the same, upon the joint application of the parties to be discharged from the operation of the decree... .” (Emphasis supplied.) Although not entirely clear from the wording of the statute itself, the history of that Act points rather forcefully to the conclusion that the Legislature meant by it to provide an exclusive means of terminating a subsisting a mensa decree, and thus to preclude an automatic termination by virtue of a reconciliation. Similar Acts have been so interpreted almost uniformly. See, for example, Nelson on Divorce and Annulment (2nd ed. 1945), § 28.26; Annot., Reconciliation —• What Comprises Effect, 35 A.L.R.2d 707, 741, et seq.; also Annot., Court’s Power to Vacate Decree of Divorce or Separation Upon Request of Both Parties, 3 A.L.R.3d 1216. Indeed, the statute would be virtually meaningless if the rule were otherwise.

The question then arises as to what effect, if any, the 1872 statute has on an award of alimony emanating from an a mensa decree. If (assuming that the statute creates an exclusive means of annulling the decree of divorce) a reconciliation does not, of itself, serve to annul the underlying decree, does it serve, nevertheless, to terminate the alimony awarded as part of the divorce?

As we have noted, the Court of Appeals in Wallingsford made clear that alimony ceases upon reconciliation; and although much water has passed under the bridge since Wallingsford, including the enactment of the 1872 statute, the Court has never departed from that premise. Indeed, it has often reaffirmed it. The clearest expression of this was in McCaddin v. McCaddin, 116 Md. 567 (1911). At issue there, among other things, was the validity of a decree that awarded permanent alimony as of a certain date but contained no limitation on its duration. The Court sustained the decree, reading into it the limitations enunciated in Wallingsford. The Court said, at p. 573:

"When, therefore, this decree provided for the payment of so much a week as permanent alimony, it was subject to the limitations fixed by law, and could only continue during the joint lives of the husband and wife, while they live apart. There has been some diversity of opinion between the Courts of different jurisdictions as to how far a final decree, allowing permanent alimony, can be modified after the decree has become enrolled, but in this case there can be no difficulty. These parties have not been divorced, either a mensa et thoro or a vinculo matrimonii, but, being separated under such circumstances as to require the husband to support the wife, provision for her support is made, but only while they are so separated....” (Emphasis supplied.)

The Court then indicated that the situation would be no different had an a mensa divorce been granted. Quoting in part from 2 Am. & Eng. Ency. of Law, p. 140, the Court held, at p. 574:

" 'In reason, if the wife returns to her husband after a divorce a mensa et thoro, and is reconciled to him, she cannot continue to have alimony.’ That being so when there is a divorce a mensa et thoro, a fortiori it would be so when there is no divorce.
"It seems, therefore, to be well settled that at least when a divorce a mensa et thoro is granted, or when there is an allowance of alimony without divorce, the decree can be modified as circumstances may require, subject, of course, to some well established rules, and in this State alimony ceases upon the death of either party, or upon their living together.” (Emphasis supplied.)

See also Emerson v. Emerson, supra, 120 Md. 584, 590; Bart v. Bart, 182 Md. 477, 479 (1943); Dickey v. Dickey, 154 Md. 675 (1928); Foote v. Foote, 190 Md. 171 (1948); Courson v. Courson, supra, 213 Md. 183; Altman v. Altman, 282 Md. 483, 490 (1978).

These expressions — this uninterrupted adherence to the Wallingsford definition — make clear at least two things: (1) that the alimony award, even if emanating from or included as part of a decree of divorce a mensa et thoro, is not inextricably tied to that decree for its continuing validity, and (2) that although a reconciliation does not serve to terminate the a mensa decree, as that can be done only by court order upon joint application of the parties, it does serve to terminate the alimony, without regard to whether it arises from the divorce decree. The ultimate question, of course, is whether the alimony automatically revives upon a subsequent separation: does the alimony actually cease upon the reconciliation or is it placed in some form of suspended animation?

Other States (and one Canadian province), in the few instances where the question has arisen, have taken differing views. See, for example, Hester v. Hester, 79 S.E.2d 248 (N.C. 1953), O’Hara v. O’Hara, 266 S.E.2d 59 (N.C. App. 1980), Lund v. Lund, 315 P.2d 856 (Utah 1957), and Patterson v. Patterson, 4 DLR 793 (Ontario S.C. 1928), suggesting that the support order is not revived, and Justice v. Justice, 108 N.E.2d 874 (Ohio Comm. Pl. 1952), Atkinson v. Atkinson, 170 So. 198 (Ala. 1936), and McIlroy v. McIlroy, 94 N.E. 696 (Mass. 1911), expressing the view that it does revive. See also Hawn v. Hawn, 505 S.W.2d 459 (Mo. App. 1974); Nelson, supra, § 32.45; Bishop, supra, § 428.

Different reasons and theories have been advanced. The New York courts, for example, which have never followed the ecclesiastical law, appear to treat the alimony as an inextricable part of the a mensa decree, and have concluded that, since the underlying decree remains in effect until terminated by the court, the alimony does likewise. See Jones v. Jones, 35 N.Y.S. 877 (Sup. Ct. 1895); Schatzberg v. Schatzberg, 241 N.Y.S. 684 (App. Div. 1930); Rozycki v. Rozycki, 102 N.Y.S.2d 217 (Sup. Ct. 1951). The North Carolina Court reached an opposite conclusion, but for the same reason. In that State, the underlying divorce terminates Upon reconciliation and with it the alimony. Hester v. Hester, supra, 79 S.E.2d 248. "[I]f there is a subsequent separation and need for subsistence for the wife,” said the Court at p. 251, "the courts are open for whatever relief may be justified by the situation then existing.”

The Ohio nisi prius court in Justice v. Justice, supra, propounded the theory that the policy of the law is to encourage .reconciliation, and that a rule which would automatically terminate an a mensa decree, or alimony awarded by it, upon a reconciliation would tend to discourage such reunions. "Foolish indeed,” it said, "would be the woman with minor children who would take such a gamble with her declared rights under a decree. Should such a reconciliation fail, through no serious fault of either party, that woman would then be forced to commence new proceedings for alimony and support and incur additional expense that goes with such proceeding. A rule of law which would discourage reconciliation or encourage a scheming party to attempt reconciliation solely to escape the decree of the Court, would be unwise indeed.. . .” 108 N.E.2d at 876.

By way of contrast, the Utah court suggested in Lund v. Lund, supra, that once the parties decided to reconcile, they would have more of an incentive to remain together if one could not hold a decree "over the head of the other and demand that the line be toed.” 315 P.2d at 858.

None of those cases, of course, are binding precedent on us, and each has a distinguishing feature of one kind or another in any event. We cite them only to consider their rationale.

The fact is that, in contrast to the New York and North Carolina law, alimony in Maryland is not inextricably tied to the a mensa divorce. It has been separately defined and has a life of its own. Neither is it controlled by the 1872 statute, which makes no mention of alimony, for it has long been established, beyond cavil, that alimony may be modified (or even terminated) upon the petition of either party alone. Moreover, the considerations involved in deciding upon a modification are not necessarily those which may warrant dissolution of the divorce decree.

There may be some merit to the concern expressed by the Ohio court in Justice — that the potential loss of alimony may cause its recipient to think twice and hard about entering into a reconciliation. But perhaps that is not entirely inappropriate. What the law seeks to encourage is a true reconciliation based upon a genuine commitment on the part of both parties, not a resumed cohabitation prompted by the thought that one has nothing to lose by it. A reunion prompted by fraud, or the absence of good faith, solely in order to evade the payment of alimony is not a true reconciliation and would not be regarded as having any legal significance. See Beale v. Avery, 178 N.E. 543 (Mass. 1931). The scheming payor, therefore, would have little to gain by his scheme.

Our concern, however, is somewhat more technical. We think that it would be artificial, at best, to resume alimony following the failure of a legitimate reconciliation, automatically and at the decretal rate established perhaps under wholly different circumstances, without regard to the current circumstances of either party, without regard to the length of the reconciliation or the cause of its failure, and as though the reconciliation had never occurred.

The Court of Appeals has said that alimony "ceases” upon a reconciliation. Only it can tell us what it meant by that, but we think that, in its ordinary signification, "cease” means "to end; to stop; to discontinue” (Webster’s New Twentieth Century Dictionary, Unabridged), and not to "suspend.”

Accordingly, we conclude that once alimony ceases upon a bona Fide reconciliation, it does not automatically revive upon a subsequent separation, and that the chancellor erred in his finding to the contrary.

We therefore shall reverse his order assessing an arrearage, which, as he calculated it, was attributable solely to the period following the reconciliation. Under the facts evident in this record, the only valid accrual was for the prereconciliation period and that was fully offset by appellant’s share of the bank account. We adopt the aforequoted statement of the North Carolina Court in Hester v. Hester, supra: "[I]f there is a subsequent separation and need for subsistence . . . the courts are open for whatever relief may be justified by the situation then existing.” In doing so, however, we express no opinion as to this appellee’s right (if any) to a restoration of alimony based upon the separation of March, 1978, and the current financial circumstances of the parties.

Judgment reversed; appellee to pay the costs.

      . Appellee was subsequently convicted of arson as a result of that incident and placed on probation.

      . The master arrived at the $3,400 figure, in contrast'to the court’s calculation of $3,600 by using a period of two months, twenty-five days rather than a full three months.

      . The Legislature retained a concurrent power to grant an a vinculo divorce until the power was withdrawn by our present Constitution, adopted in 1867. See art. Ill, § 33.

      . The statute formerly was codified as Md. Ann. Code (1957) art. 16, § 2. With the enactment of the Courts article by Acts of 1973 (1st Spec. Sess.), ch. 2, as part of the code revision process, art. 16, § 2 was repealed and its provisions transferred, without substantial change, to the new article as § 3-603. Section 2 of art. 16 thereafter remained repealed and vacant, not replaced with any new enactment. By Acts of 1980, ch. 575, the General Assembly enacted a comprehensive new alimony law. Section 1 of that Act purported to repeal § 2 of art. 16, which, as noted, had already been transferred to the Courts article; but it made no mention, in the repealer, of Courts article, § 3-603. It is not clear to us, from this, what the legislative intent was in terms of those provisions formerly codified as § 2 of art. 16 and now codified as § 3-603, Courts article.

      . Actually, in subsequent language, the Court made clear that alimony could be awarded if the petitioner proved any ground for an a mensa divorce under the Maryland statute. She was not, in other words, restricted to grounds cognizable under the ecclesiastical law.

      . "In omni sententia lata inseritur haec clausula, Dictos N. et M. ratione saevitiae allegatae et probatae, a thoro, mensa, et mutua cohabitatione, absque obsequiorum conjugalium impensione, donee et quosque duxerint invicem reconciliandos, et non aliter, ñeque alio modo, separamus.” Oughton’s Ordo Judiciorum, tit. 215, s. 3, quoted in Barrere v. Barrere, 4 John. Ch. 187 (N.Y. 1819) (Opinion by Chancellor Kent). See also Poynter, p. 182, note (1).

      . See, for example, the orders accompanying the decisions digested in Helms v. Franciscus, supra, 2 Bland, at 565-574, notes (e) and (f), e.g., Scott’s Case (1747): "Decreed, that the defendant pay unto the complainant thirty pounds current money yearly and every year, from the 20th day of August, 1746, during the joint lives of both parties, unless they shall be reconciled, and mutually agree to cohabit together; and in case of such reconciliation and cohabitation, the said payment to cease....” (Emphasis supplied.) This form of decree was still being used at least as late as 1839. See Mincher v. Mincher, Chancery Papers #9642 (petition 1837, decree 1839).

      . The ultimate origin of statutes such as ch. 272 may have been the decision (or, more directly, the reasoning) of Chancellor Kent in Barreré v. Barrere, supra, 4 John. Ch. 187. In contrast to the ecclesiastical practice, a New York statute permitted the court "to decree a separation from bed and board, forever thereafter, or for a limited time, as shall seem just and reasonable, or to make such other decree in the premises as the nature and circumstances of the case require.” Kent thus had a great deal of flexibility in fashioning a decree.
      He concluded that an a mensa decree ought not to be forever, for it should be left open to the parties to reconcile should they choose to do so. But he rejected as well the notion of automatic termination upon reconciliation, observing that such an event (and thus the continuing vitality of the decree itself) was open to dispute. Kent stated his preference for a decree that remained in effect "until the parties shall have applied to the Court, and received, upon just grounds, a judicial recognition of the certainty and sincerity of their reconciliation.” This reasoning led Kent, and apparently the chancellors who succeeded him, to fashion their a mensa decrees accordingly and thus to preclude a reconciliation from automatically nullifying the decree. In 1828, the New York legislature adopted Kent’s rationale and made the practice a matter of statutory law. See 2 N.Y. Rev. Stat., p. 147, § 56, now CLS, Domestic Relations Law, § 203; also see Hobby v. Hobby, 39 N.Y.S. 36, 38 (App. Div. 1896), and Jones v. Jones, 35 N.Y.S. 877 (Sup. Ct. 1895), indicating that the statute merely adopted the rule laid down by Kent.
      Kent’s reasoning, embodied in the New York statute, eventually spread to other States, which began to adopt similar statutes. See, for example, 1846 Mich. (ch. 84, § 43); 1849 W. Va. (prior to Statehood), ch. 169; 1854 Ky. (see Dunn v. Dunn, 257 S.W.2d 283, 285, n. 2 (Ark. 1953); also Meyar v. Meyar, 60 Ky. (3 Mete.) 298 (Ky. 1860)); 1861 Va. (ch. 18, pp. 41, 42; Va. Code (1873) Title 31, ch. 105, § 15, p. 853); 1869 Ark. (Dunn, supra, 257 S.W.2d 283). In 1872, Maryland joined the ranks, the statute now appearing as part of Md. Ann. Code art. 16, § 25.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    JOSEPH H. MUNSON COMPANY, INC. v. SECRETARY OF STATE FOR THE STATE OF MARYLAND
    [No. 925,
    September Term, 1980.]

      Decided March 11, 1981.

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

      Mark A. Winkler, with whom was YaleL. Goldberg on the brief, for appellant.

      James G. Klair, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Sometimes a government, in its zeal to protect the governed, enacts laws that trespass unnecessarily upon the constitutional rights of some of the governed. It is extremely difficult in regulating any practice, custom, business, or industry not to trample, to a degree, upon the constitutional rights of someone. Governmental intrusion upon the constitutional rights of one group for the protection of a larger group, while looked upon with disfavor, is not, however, ipso facto invalid. The test is not whether there has been an infringement upon the rights of those regulated, but rather, whether the regulation unnecessarily encroaches on the rights of the regulated.

In this appeal, we must examine a State statute in order to determine whether it is unconstitutional.

The Preamble to Laws 1976, ch. 679 provides in part:

"The Governor on August 16, 1974, created a Commission on Charitable Organizations to examine the existing statutes and to make recommendations. The Commission concluded its work and found that the present laws [] were inadequate and recommended the original bills (S.B. 287, H.B. 487) in their unamended form. These bills as introduced by the Administration were nearly identical to the 'Model for State Legislation Regulating Charitable Organizations’ and endorsed by the numerous National Voluntary Health Agencies.”

The Preamble also stated that bills had been "introduced in the 1975 Session as a result of impetus coming” from publications in which it was alleged that "various organizations soliciting funds from the public had excessively high administrative and other expenses, which resulted in a relatively small portion of the contributions . .. being used for their intended purpose.”

Obviously, chapter 679 was enacted with the intent of protecting the public by assuring that the organization that solicited the funds was regulated as to the amount of monies that went toward "expenses in connection with .. . [the] fund-raising activity.” Section 3 of that chapter created what is now also known as Md. Ann. Code art. 41, § 103D. That section provides:

"(a) A charitable organization other than a charitable salvage organization may not pay or agree to pay as expenses in connection with any fund-raising activity a total amount in excess of 25 percent of the total gross income raised or received by reason of the fund-raising activity. The Secretary of State shall, by rule or regulation in accordance with the 'standard of accounting and fiscal reporting for voluntary health and welfare organizations’ provide for the reporting of actual cost, and of allocation of expenses, of a charitable organization into those which are in connection with a fund-raising activity and those which are not. The Secretary of State shall issue rules and regulations to permit a charitable organization to pay or agree to pay for expenses in connection with a fund-raising activity more than 25% of its total gross income in those instances where the 25% limitation would effectively prevent the charitable organization from raising contributions.
The 25% limitation in this subsection shall not apply to compensation or expenses paid by a charitable organization to a professional fund-raiser counsel for conducting feasibility studies for the purpose of determining whether or not the charitable organization should undertake a fund-raising activity, such compensation or expenses paid for feasibility studies or preliminary planning not being considered to be expenses paid in connection with a fund-raising activity.
(b) For purposes of this section, the total gross income raised or received shall be adjusted so as not . to include contributions received equal to the actual cost to the charitable organization of (1) goods, food, entertainment, or drink sold or provided to the public, nor should these costs be included as fund-raising costs; (2) the actual postage paid to the United States Postal Service and printing expense in connection with the soliciting of contributions, nor should these costs be included as fund-raising costs.
(c) Every contract or agreement between a professional fund-raiser counsel or a professional solicitor and a charitable organization shall be in writing, and a copy of it shall be filed with the Secretary of State within ten days after it is entered into and prior to any solicitations.”

Joseph H. Munson Company, Inc., an Indiana corporation (Munson), and a "promotion business,” was desirous of entering into a contract with the Fraternal Order of Police, Montgomery County Chapter (F.O.P.). Munson was to raise funds for F.O.P., an organization, described in the stipulation of facts, which was engaged in the dissemination of information and the promotion of causes on behalf of police officers. Because of the fee limitations prescribed in the statute referred to above, no contractual relationship developed between Munson and F.O.P.

Apparently believing itself unlawfully barred from doing business in Maryland because of section 103D, Munson filed, in the Circuit Court for Anne Arundel County, a bill of complaint in which it sought a declaratory decree that would hold section 103D unconstitutional. The Secretary of State for the State of Maryland (Secretary) was named as defendant. The court was asked to enjoin permanently the enforcement of the registration provisions and the civil or criminal sanctions permitted by that statute.

The case was heard in the circuit court by Judge Eugene M. Lerner on a stipulation of facts. The judge held that Munson was not entitled to declaratory relief "since ... [Munson] has not exhausted its administrative remedies.” Furthermore, the trial judge stated that there was no improper delegation of authority to the Secretary of State, and that the statute is constitutional.

On appeal to this Court, Munson poses three questions which we believe may be stated fairly in but one. scilicet:

Is Md. Ann. Code art. 41, § 103D unconstitutional on the basis that it infringes on the First Amendment right of freedom of speech, and is it an impermissible delegation of legislative authority to the Secretary?

PRELIMINARY ISSUE OF STANDING —

Before we undertake to discuss the constitutionality vel non of section 103D, we must first consider the Secretary’s contention that Munson lacks standing to challenge the statute and, therefore, is not a proper party to have brought the suit in the first instance.

Our review of the record discloses that in response to the original bill of complaint the Secretary, in a motion to dismiss, averred inter alia that Munson was not an "interested . . . [party] asserting adverse claims . . . .” The motion was heard by Judge H. Chester Goudy, Jr., who granted the dismissal in part and denied it in part. Significantly, he did not rule upon Munson’s standing as an "interested party.”

Subsequently, Munson filed an amended bill. The Secretary answered it without posing any question as to Munson’s being an "interested party.” Nevertheless, the Secretary did raise the question minimally in a Memorandum of Law that it submitted to Judge Lerner. We characterize the standing issue as minimally posited because in eleven pages of typing the only reference to standing is the single sentence, "The ... [Secretary] seriously questions ... [Munson’s] standing to seek a declaratory judgment.”

Apparently the Assistant Attorney General, representing the Secretary, had misgivings about the inattention given to standing in his Memorandum of Law because approximately two weeks later he submitted to Judge Lerner a "Supplemental Memorandum of Law.” In the supplement, he dispelled any doubt as to the Secretary’s position with respect to Munson’s standing inasmuch as the entire supplemental memorandum is devoted exclusively to that question.

Judge Lerner, in his "Memorandum Opinion and Order,” did not, however, address the issue of standing but denied relief strictly on the questions of constitutionality.

Md. Rule 1085 provides in part that "[t]his Court will not ordinarily decide any point or question which does not plainly appear ... to have been tried and decided by the lower court....”

We decline to consider the issue of standing because it was not decided by Judge Lerner inasmuch as he made his decision on other grounds. Md. Rule 1085. But see, Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S. Ct. 826, 834-35, 63 L. Ed. 2d 73 (1980); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22 (1964); United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 522, 4 L. Ed. 2d 524 (1960); Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S. Ct. 736, 742, 84 L. Ed. 2d 1093 (1939).

—CONSTITUTIONALITY VEL NON OF MD. ANN. CODE ART. 41, § 103D—

The Supreme Court has held that the regulation of charitable solicitation is a function of the State’s police power and a fulfillment of its duty to protect its citizens from fraudulent charitable organizations. Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S. Ct. 1755, 48 L. Ed. 2d 243 (1976). The Court has also recognized that First Amendment freedoms are intertwined with any type of solicitation and should be protected. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976) (commercial solicitation); Hynes v. Mayor of Oradell, supra (charitable and political solicitation); Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 2d 1213 (1940) (religious solicitation). At first blush it would seem that Hynes is in conflict with the free speech solicitation right. The conflict, however, may be reconciled by the State’s imposing reasonable regulations on charitable solicitations.

Recently, in Village of Schaumburg v. Citizens for a Better Environment, supra, the Court, speaking through Justice White, addressed the balancing of police power vis-a-vis solicitations. The Village ordinance prevented a charitable organization from obtaining a solicitation permit unless " '[satisfactory proof that at least seventy-five percent of the proceeds of such solicitations ... [would] be used directly for the charitable purpose of the organization.’ ” (Footnote omitted.) 444 U.S. at 624, 100 S. Ct. at 829. Citizens for a Better Environment (Citizens), an organization that promoted the protection of the environment, was denied a permit by the Village inasmuch as Citizens "could not demonstrate that 75 percent of its receipts would be used for 'charitable purposes’....” Id. at 625, 100 S. Ct. at 830. Citizens’ excessive expenditures were attributed to its employment of door-to-door "canvassers” who, in addition to collecting contributions, distributed "'literature on environmental topics and answerfed] questions of an environmental nature when posed’ ” and accepted complaints about the state of the environment. Id. As a result of the Village’s refusal to grant a permit to Citizens, it challenged the ordinance on the ground that it violated its First and Fourteenth Amendment rights to freedom of speech.

The Court held the particular ordinance to be an unconstitutional infringement on freedom of speech. Charitable solicitations are a form of speech entitled to First Amendment protection, the majority said. To pass constitutional muster, any State regulation of charitable solicitation must "serve a sufficiently strong, subordinating interest... that the ... [State] is entitled to protect.” Id. at 636, 100 S. Ct. at 836. Consequently, the regulation must be drawn in such a narrow manner as to serve the State’s interest "without unnecessarily interfering with First Amendment freedoms.” Id. at 637, 100 S. Ct. at 836. See Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 100 S. Ct. 2326, 65 L.Ed.2d 319 (1980). Earlier, in NAACP v. Button, 371 U.S. 415, 438, 83 S. Ct. 328, 340, 9 L. Ed. 2d 405 (1963), the Court had opined that "[b]road prophylactic rules in the area of free expression are suspect. ... Precision of regulation must be the touchstone. .. (Citations omitted.)

Although the Court believed the Village’s interest in protecting its citizens from "fraud, crime and undue annoyance,” was substantial, the inflexible 25% solicitation limitation was not narrowly drawn and interfered "unnecessarily” with the freedom of speech. The Court rejected Village’s rationale that "any organization using more than 25 percent of its receipts on fundraising, salaries, and overhead is not a charitable, but a commercial, for profit enterprise and that to permit it to represent itself as a charity is fraudulent.” 444 U.S. at 636, 100 S. Ct. at 836. The Supreme Court agreed with the United States Court of Appeals (7th Cir.) that "this cannot be true of those organizations that are primarily engaged in research, advocacy, or public education and that use their own paid staff to carry out these functions as well as solicit fínancial support.” (Emphasis supplied.) Id. Such organizations may need to spend more than 25% of the solicitation on non-charitable purposes. Village’s ordinance .failed to take into consideration the research, advocacy or public education type of organizations and summarily prevented them from soliciting funds for their charitable purpose.

The Court noted that "Village’s legitimate interest in preventing fraud can be better served by measures less intrusive than a direct prohibition on solicitation.” Id. at 637, 100 S. Ct. at 836. Among other things, Village may prohibit "fraudulent misrepresentations” and enact penal laws to punish violations.

The flaw in the ordinance that Village enacted was the ban on solicitation by any charitable organization that expended more than 25% of its funds for charitable purposes. The prior restraint imposed on all charitable organizations without exception was an unnecessary intrusion on the freedom of speech. The ordinance either ignored or arbitrarily classified all charitable organizations as one and the same. By so doing, they failed to recognize that the research, advocacy, or educational organization fits a different mold. Moreover, the ordinance also failed to acknowledge that there might be a valid reason why more than 25% of the proceeds was needed at a given time for other than strictly charitable purposes. Even if a charitable solicitor could show clearly that a sum greater than 25% was necessary to its particular needs, the demonstration would have been to no avail because the ordinance permitted no flexibility.

Statutes or ordinances regulating the solicitation of funds by charitable organizations have, however, been judicially sanctioned. See e.g., National Foundation v. City of Fort Worth, 415 F.2d 41 (CA5 1969), cert. denied, 396 U.S. 1040 (1970). We must then look to the holdings of such cases in order to find the reason or reasons why those ordinances or statutes were free of constitutional defect.

The National Foundation v. Fort Worth ordinance required each charitable organization to obtain a license before solicitation of funds. The license would be denied if it. was determined that an applicant was expending, or was expected to spend for solicitation costs, more than 20% of the gross amount raised. The 20% limitation was not, however, an inflexible barrier. An applicant with an expenditure or expected expenditure of more than the specified 20% could, nevertheless, obtain a license if it demonstrated special facts or circumstances that reasonably justified such an expenditure. The Fifth Circuit Court of Appeals said that the pliant feature in the 20% limitation buttressed the ordinance’s constitutionality by recognizing that a fixed percentage' "might be undesirable and inapplicable if applied to all types of charitable organizations.” Id. at 46. Furthermore, the suppleness of the limitation made it "a valid and constitutional means of achieving the city’s purpose of protecting its citizens.”

Another case in which a charitable solicitation regulation ordinance was held to be constitutionally valid is Holloway v. Brown, 62 Ohio St. 2d 65, 403 N.E.2d 191 (1980). There, a solicitation permit would not be issued if the cost of solicitation was more than 15% of the gross total raised through the solicitation. Excessive expenditures were, however, only prima facie evidence of unreasonableness, and the permit would be issued if the applicant could show that spending more than 15% of the gross solicitation was reasonable. The court concluded that the ordinance was sufficiently narrow to comply with Schaumburg’s standards. Manifestly, the saving feature of the ordinance was the elasticity allowed in the percentage limitation. The limitation, coupled with the authority to increase it for good cause, enabled the local government to "screen out only those solicitations which indeed posted] a substantial risk of invoking fraud or misrepresentation.” Id. at 73-74, 191 N.E.2d at 197.

A similar regulation was addressed in National Black United Fund, Inc. v. Campbell, 494 F. Supp. 748 (D.C.D.C. 1980), wherein a federal program allowed charitable organizations "the luxury” of soliciting federal employees while the employees were at work. In order to be eligible for participation in the program, an organization had to meet certain requirements, one of which was a fixed percentage limitation on the cost of administrative expenses. If those expenses exceeded 25% of the organization’s annual income, the organization had to demonstrate that the excess expenditures were reasonable.

The district court struck down the regulation on the basis that it was unconstitutionally applied. The court, however, concluded that the regulation was valid on its face. In so doing, the court recognized that the "flexible percentage limitation” distinguished the valid federal regulation from that of the Schaumburg ordinance.

With the holdings of Schaumburg, National Foundation, Holloway and National Black United Fund, supra, firmly in mind, we shall begin our analysis of the above-quoted § 103D of Article 41.

We observe that the Maryland statute is similar to those found in National Fund, Holloway and National Black United Fund. In all three of those cases, the laws limiting solicitations were held to permit enough flexibility to survive an attack built upon First Amendment freedom of speech. While it is true that section 103D proscribes the expenditure for non-charitable purposes of more than 25% of the gross total income raised through a fund-raising activity, any charity may be exempted from the strictures of that prohibition if the charity demonstrates that "the 25% limitation would effectively prevent ... [it] from raising contributions.” An organization which legitimately needs to expend more than 25% of its total gross income for administrative costs is not summarily characterized as "fraudulent” and, thereby, subjected to prosecution, as were the charitable organizations in Schaumburg, supra.

Additionally, the spending limitation of section 103D does not place a prior restraint on the First Amendment freedom of speech associated with charitable solicitation. As we see it, section 103D regulates charitable solicitation through the means suggested by the Schaumburg court, namely, penal laws and financial disclosure requirements. While registration is mandated in order for a charitable organization to solicit contributions, Md. Ann. Code art. 41, § 103B, the organization is not denied registration, ipso facto,- if it expends more than 25% of its funds for non-charitable purposes. Irrespective of the amount spent or to be spent on solicitation, a license is issued upon completion of the registration. Should a registered charity then decide to expend more than the sanctioned 25% on non-charitable costs, without being exempted by the Secretary, it violates section 103D and is, thereby, exposed to the criminal penalties spelled out in section 103L. The threat of criminal prosecution, not prior restraint, deters fraudulent activity.

The registration statements, dictated by Md. Ann. Code art. 41, § 103B, contain an "income and expense statement, and a financial report (including the kind and amount of its gross income raised, costs and expenses incidental to the fund-raising activities Pursuant to Md. Ann. Code art. 41, § 103G, the statement becomes a public record and, of course, is open to public scrutiny. Furthermore, the actual contracts between a charity and a professional solicitor are also filed as public records, Id., after having been filed with the Secretary. Md. Ann. Code art. 41, § 103D (c).

We think section 103D regulates First Amendment freedom of speech in such a way as to minimize encroachment upon individual rights while simultaneously protecting the citizenry of this State from sham and fraud. In sum, section 103D is drawn in a manner calculated to protect the public interest "without unnecessarily interfering with First Amendment freedoms.” The statute is constitutional.

—THE DELEGATION OF LEGISLATIVE AUTHORITY—

Munson’s lawyers, as careful tacticians, did not "put all their eggs in one basket.” They had a fail-back position. In the instant case, it took the form of an assault upon what Munson avers to be an unconstitutional delegation of legislative authority to the Secretary.

Munson asserts that section 103D vests too much discretion in the Secretary in that there are insufficient standards because reasonable guidelines are not present. We have an entirely different view.

Rarely has a statute been held unconstitutional because of an impermissible delegation of legislative power. The rule used in measuring whether the Legislature has properly delegated authority is:

The Legislature has the power to grant to an administrative agency the discretion to implement statutory provisions, through rules and regulations, provided that the agency is furnished reasonable guidelines or standards to follow in fulfilling the legislative command.

Governor of Maryland v. Exxon Corp., 279 Md. 410, 370 A.2d 1102 (1977); Gino’s of Maryland, Inc. v. City of Baltimore, 250 Md. 621, 244 A.2d 218 (1968); Mason v. State, 12 Md. App. 655, 280 A.2d 753 (1971).

As we see it the Legislature has delineated clearly the guidelines to be followed by the Secretary in implementing the charitable organization’s 25% "overhead” limitation whenever funds are solicited from the public. The guidelines are:

1) Section 103D (a) instructs the Secretary to use the "standard of accounting and fiscal reporting for voluntary health and welfare organizations” when allocating costs of an organization between those expended in connection with a fund-raising activity and those which are not.
2) Section 103D (b) sets out the expenditures which are not to be included in the total gross income when computing the 25% limitation, nor are they to be considered as fund-raising costs. The exclusions are the costs of "goods, food, entertainment, or drink sold or provided to the public” and "the actual postage paid ... and printing expense in connection with the soliciting of contributions.”
3) After the authorized deductions are made from the total gross income generated by the fund-raising solicitation, the 25% limitation on non-charitable expenses is computed.
4) If the expenditure for non-charitable purposes exceeds 25% of the total gross, less allowable deductions, a charity can avoid violating section 103D if the Secretary of State determines that "the 25% limitation would effectively prevent the charitable organization from raising contributions.”

The Secretary, in accordance with the legislative directive relative to the adoption of rules and regulations, has promulgated regulations that provide a mechanism through which a charitable organization can demonstrate to the Secretary that the 25% limitation would amount to prohibition of the charity’s fund-raising activity. See COMAR .01.02.04.05-.13.

We hold that Md. Ann. Code art. 41, § 103D is not constitutionally ailing. The Legislature did not impermissibly delegate authority to the Secretary. Judge Lerner did not err in upholding the validity of the statute.

Judgment affirmed.

Costs to be paid by appellant.

      . Introduced in the General Assembly as House Bill No. 777.

      . Md. Ann. Code art. 41, §§ 103A-103E (1971 Repl. Vol.).

      . The Secretary of State is charged with investigating any alleged violations of the Charitable Organizations Subtitle of Article 41, §§ 103A — 103L. Upon finding a violation, subsection 103L (b) confers upon the Secretary several enforcement alternatives, namely:
      "(1) Cancel and annul the registration of the violator;
      (2) Refer the matter to the Attorney General for civil enforcement ...; and
      (3) Refer the matter to the appropriate State’s attorney for prosecution.”
      Additionally, section 103L (a) declares the criminal penalties for violating the Charitable Organizations Act to be:
      "A charitable organization, professional fund-raiser counsel, or professional solicitor which wilfully fails to file a registration statement, report, or other information with the Secretary of State or wilfully files such a statement, report, or other information which is materially false, or otherwise wilfully violates the requirements of this subtitle, is guilty of a misdemeanor, and, upon conviction, shall be fined not more than $5,000 or sentenced to imprisonment for not more than one year, or be both fined and imprisoned.”

      . The three questions raised by Munson were:
      "1. Should not the decision below be reversed for reason that Article 41, Section 103D of the Annotated Code of Maryland is unconstitutional and in violation of the Appellant’s rights under the First and Fourteenth Amendments of the United States Constitution in light of the facts that the said statute is overbroad in its regulation of protected speech activities, in that it bears an insignificant relation to asserted State interests, fails to utilize the least drastic means available to serve such interests and fails to provide any Constitutionally sufficient exception to the 25% expense limitation?
      2. Did not the lower court err in holding that the proper construction of the exception in Section 103D is sufficiently broad to include a 'flexible’ percentage scheme and the statute is therefore Constitutional, in light of the facts that the plain language and obvious intent of the exception power is insufficient to create such a flexible scheme; and further, even if such a flexible scheme is included, such a scheme is no less intrusive on First Amendment interests than is a fixed percentage scheme?
      3. Did not the lower court err in holding that the proper construction of the exception in Section 103D is sufficiently broad to protect First Amendment interests, in light of the fact that under such a broad construction, the discretion vested in enforcement officials as a result of the lack of standards is itself an unconstitutional infringement on First Amendment interests?”

      . Justice Rehnquist dissented. 444 U.S. at 639-45, 100 S. Ct. at 837-40.

      . It is interesting to note that the Schaumburg Court distinguished the Fort Worth ordinance from the Schaumburg ordinance and impliedly endorsed the 20% flexible limitation as a constitutional means of regulating charitable solicitation, 444 U.S. at 635, n. 9, 100 S. Ct. at 835. Unlike the Fort Worth ordinance, the regulation in Schaumburg failed to provide means whereby an organization, which legitimately needed to expend more than 25% on non-charitable costs, could show that the excessive cost was reasonable.

      . Davis, 3 Administrative Law Treatise §§ 2.03.-.3.6 (1958).


author: Lowe, J.,

text:
    IN RE: MICHAEL E.
    [No. 1203,
    September Term, 1980.]

      Decided March 11, 1981.

    The cause was submitted on briefs to Gilbert, C. J., and Lowe and MacDaniel, JJ.
    Submitted by Michael L. Pullen, Assistant Public Defender, for appellant.
    Submitted by Alexander L. Cummings, Assistant Attorney General, Stephen H. Sachs, Attorney General, Sidney S.

      Campen, Jr., State’s Attorney for Talbot County, and Jane T. O’Connor, Assistant State’s Attorney for Talbot County, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Michael E. was charged in the Circuit Court for Talbot County, sitting as a juvenile court, with being a delinquent, having committed an arson of a dwelling house.

"That MICHAEL E. on or about the 5th day of April, 1980, in Talbot County, Maryland, did maliciously set fire to and burn the dwelling house of William Henry Cecil, Jr. in violation of Article 27, Section 6 — Arson.”

Although Md. Ann. Code art. 27, § 6 addresses primarily arson to a "dwelling house,” it also alternatively proscribes burning certain outbuildings:

"... dwelling house, or any kitchen, shop, barn, stable or other outhouse that is a parcel thereof or belonging to or adjoining thereto.. . .” (Emphasis added).

At trial the State’s evidence established that which was burned was a "well house” or "pump house.” After the first witness, a police officer, had concluded his testimony of the charring on the door of the pump house, etc., the assistant state’s attorney addressed the court saying:

"the State confesses not guilty to the crime.”

Her concern was that appellant had not been charged with violation of the proper section because:

"The evidence would show that the pump house is three feet from the dwelling house.”

Perhaps because the State had confessed not guilty only to the underlying crime charged, rather than having confessed that Michael E. was not delinquent, the judge simply "discharged” appellant and the case was entered on the docket as "dismissed.”

Presumably the prosecutor’s spontaneous confession occurred because of her belief that the burning of any outbuilding should be charged under § 7 of Article 27, which proscribes among other objects the burning of

"any barn, stable, garage or other building ... not a parcel of a dwelling house....”

The following month, appellant was so charged:

"That MICHAEL E. on or abou [sic] the 5th day of April, 1980, in Talbot County, Maryland, did willfully and maliciously set fire to and burn a building, to wit: a pump house, not a parcel of a dwelling house, being the property of Pinkey Lee Murphy, in violation of Article 27, section 7 (Arson).”

Appellant filed a Motion to Dismiss the subsequent petition, claiming it violated the guarantee against double jeopardy. The motion was denied after argument, and this appeal was taken from the court’s ruling.

Sensing the inherent injustice of his plight in light of the Fifth Amendment’s Double Jeopardy Clause,

"nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,”

appellant cautiously seeks the path to freedom through the interpretative maze adorning that sacred ground by venturing first upon one path, then the other. He argues first that:

"ARTICLE 27 §§ 6 AND 7 EACH DO NOT REQUIRE PROOF OF AN ADDITIONAL FACT WHICH THE OTHER DOES NOT AND THEREFORE BOTH STATUTORY OFFENSES ARE THE SAME FOR PURPOSES OF DOUBLE JEOPARDY.”

Seeing but little light ahead he then contends that:

"WHERE THERE HAS BEEN BUT A SINGLE DELINQUENT ACT COMMITTED MULTIPLE PROSECUTIONS BASED ON THAT ACT ARE BARRED BY DOUBLE JEOPARDY.”

Hoping that if err he must, he will do so on the side of prudence, appellant even ventures upon two divergent paths that wander a bit but arrive at the same destination: res judicata,

"LITIGATION OF ISSUES THAT COULD HAVE BEEN DECIDED IN A FORMER PROCEEDING BETWEEN THE SAME PARTIES CONCERNING THE IDENTICAL SUBJECT MATTER IS BARRED BY RES JUDICATA;”

and collateral estoppel,

"COLLATERAL ESTOPPEL BARS THE STATE FROM ATTEMPTING TO PROVE THE OPPOSITE OF A FACT WHICH IT HAS ADMITTED IN A FORMER PROCEEDING BETWEEN THE SAME PARTIES.”

We agree with appellant that the Fifth Amendment precludes his retrial, and may even have reached that result upon the routes he points out to us. But there is within most of us (according to Poe) a degree of perversity, which we note to be most apparent among the judiciary. Our route through the maze is one not suggested by appellant, perhaps because we are more concerned with that which the judge permitted, rather than being preoccupied with that which the prosecutor sought to do. It was ironically the State’s brief which brought the key to the case to our attention.

"In the instant case, although the prosecutor confessed not guilty at the hearing on the petition alleging a violation of Article 27 Section 6, that admission did not technically constitute a judgment of acquittal because it was not done by the trier of fact [either the judge or a jury]. Pugh v. State, 271 Md. 701 (1974).”

After proper analysis, acquittal appears to have been exactly what the judge was compelled to do, whatever his desire may have been. Precisely what the court did was to "discharge” the appellant by "dismissing” the case, which action under the circumstances was functionally indistinguishable from declaring a mistrial. Lee v. United States, 432 U.S. 23, 31 (1977).

The policy underlying the Double Jeopardy Clause is that

"the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-88 (1957).

These considerations have led to the conclusion that a defendant is placed in jeopardy in a criminal proceeding once he is put to trial before the trier of fact — that being either when the judge receives the first piece of evidence in a non-jury trial or when the jury is selected and sworn in a jury trial, Blondes v. State, 273 Md. 435, 444-45 (1975), whether the proceeding involves an adult or a juvenile. Swisher v. Brady, 438 U.S. 204 (1978). If that trial is aborted without the consent of the defendant, the doctrine of "manifest necessity” expressed in United States v. Perez, 9 Wheat 579, 580 (1820), stands as a command to trial judges not to foreclose "the defendant’s valued right to have his trial completed by a particular tribunal” unless the ends of justice would be defeated by continuing the proceedings. United States v. Dinitz, 424 U.S. 600, 607 (1976); United States v. Jorn, 400 U.S. 470, 485 (1971); see also Wade v. Hunter, 336 U.S. 684, 689 (1949).

The case before us seems first to fall under the admonition of the Supreme Court espoused in Downum v. United States, 372 U.S. 734 (1963), reiterated in Dinitz, supra at 611, and quoted with approval by the Court of Appeals in Bell v. State, 286 Md. 193, 204 (1979), i.e., that a trial may not be terminated so as to afford the prosecution a more favorable opportunity to convict.

In Downum, the situation presented was simply one where the district attorney had entered upon the trial of the case without sufficient evidence to convict. Id. at 737. In the case at bar the situation presented was simply one where the assistant state’s attorney’s evidence caused her prematurely to believe that it would be insufficient to convict the defendant as he was charged. Whether appellant had been charged under the wrong statute is neither decided nor material. What is important is that the abortion was permitted because the state prosecutrix believed appellant had been wrongly charged, yet it is apparent from the record that no consideration was given either to the possibility of an amendment or a continuance. See United States v. Jorn, supra at 487. Whether the prosecutrix was right or wrong, the trial judge should have recognized that lack of preparedness by the State to continue the trial implicated the policies underpinning not only the double jeopardy provision but the speedy trial guarantee as well. Id. at 486.

Whichever path we follow through the maze, we arrive at the same destination. United States v. Jorn noted that Gori v. United States, 367 U.S. 364 (1961), while adhering to the Perez theme of requiring "manifest necessity” as the appellate standard of review of precipitous terminations subsequently to be retried, "suggested] the possibility of a variation on that theme according to a determination by the appellate court as to which party to the case was the beneficiary of the mistrial ruling.” 400 U.S. at 482. In Gori it was found to have been "in the sole interest of the defendant.” 367 U.S. at 369. In Jorn the judge was motivated by a desire to protect the witnesses rather than the defendant. But in the present case, the only beneficiary was the State, and the expressed reason for seeking the ruling was the prosecutorial advantage of conforming the allegations of the petition to the evidence that had been elicited, before a decision on the merits when the change would be too late.

The interruption of a proceeding once jeopardy had attached for reasons factually similar to those before us has been at' least twice addressed by the Supreme Court of the United States. In Lee, supra, the defendant moved for dismissal after the prosecutor’s opening statement because of a defective charge of theft. The trial judge deferred his ruling and proceeded with the case. Instead of ruling on the merits, the judge then granted the motion to dismiss the information, expressing his view that the evidence clearly showed culpability although the charge was technically in error. In permitting a retrial on the new charges using the same evidence, the Supreme Court relied heavily upon the fact that a motion to dismiss (which the Court equated to a motion for mistrial)- had been granted at the behest of appellant.

In Illinois v. Somerville, 410 U.S. 458 (1973), a state prosecutor made a similar mistake in drafting an indictment for theft. Discovery of the defect in the course of trial led the court to grant the State’s motion for mistrial over the defendant’s objection. The Supreme Court held that termination of the trial was dictated by "manifest necessity” under the Perez standard. Id. at 469. Parenthetically, the distinction between mistrial and dismissal would have made no difference there in the Perez analysis. See Lee, supra, at 31 n.9.

This factually apposite case seems to set the tone and establish some guidelines for situations such as we have before us. The Court pointed out that such "formula” as may be applied under the term "manifest necessity” was not an inflexible one, but rather one in which the court should take " 'all circumstances into account.’ ” Id. at 462, citing Wade v. Hunter, supra at 691.

"While virtually all of the cases turn on the particular facts and thus escape meaningful categorization, see Gori v. United States, supra, Wade v. Hunter, supra, it is possible to distill from them a general approach, premised on the 'public justice’ policy enunciated in United States v. Perez, to situations such as that presented by this case. A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve 'the ends of public justice’ to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court. This was substantially the situation in both Thompson v. United States, supra, and Lovato v. New Mexico, supra. While the declaration of a mistrial on the basis of a rule or a defective procedure that would lend itself to prosecutorial manipulation would involve an entirely different question, cf. Downum v. United States, supra, such was not the situation in the above cases or in the instant case.” Illinois v. Somerville, supra at 464. (Emphasis added.)

Noting that Downum, supra, also pointed out that "[e]ach case must turn on its facts,” 372 U.S. at 737, the Court drew from the Downum holding, a significance in the fact of the absent witness and reason therefore, i.e., the prosecutor’s prior knowledge of that fact and lack of trial preparation in addressing it. Illinois v. Somerville, supra at 465. The Court noted similar significant circumstances in Jorn. There it was apparent from the record that no consideration had been given to the possibility of a trial continuance. Jorn, supra at 487. The Court then pointed out that:

"In the instant case, the trial judge terminated the proceeding because a defect was found to exist in the indictment that was as a matter of Illinois law, not curable by amendment. [Emphasis added.]
This situation is thus unlike Downum, where the mistrial entailed not only a delay for the defendant, but also operated as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case. Here, the delay was minimal, and the mistrial was, under Illinois law, the only way in which a defect in the indictment could be corrected.” Illinois v. Somerville, supra at 468-69.

When we analyze the circumstances of the case at bar it is of more than passing interest that the prosecutrix’s chosen language to abort the proceeding, which was in her opinion liable to be lost because of a defect in the information, left the trial judge but very little option. She confessed "not guilty” in open court to the crime of arson to a dwelling house. Although we recognize that in most instances when a judge grants a mistrial over a defendant’s objection, he all but invariably contemplates that the prosecutor will be permitted to proceed anew, Bell v. State, 41 Md. App. 89, 91 (1979), aff'd, Bell v. State, supra, a dismissal from a confession by the State of "not guilty” does not lead to the same conclusion.

The reason given by the prosecution — i.e., that the burned pump house was "three feet” from the dwelling — may or may not have indicated that appellant had been charged under the wrong section. That which is the significant circumstance here is that she believed her case to be in trouble and aborted the proceeding to avoid losing the conviction.

Assuming without deciding that her precipitous concern was correct, she gave the judge no opportunity to consider permitting her to amend, nor even to weigh a continuance or mistrial. See Downum, supra. Whether the amendment or other alternatives would have been permitted has no more bearing on the present considerations than whether her initial concern was an accurate judgment. What is important for this analysis is that she did not seek nor permit the court to seek a means of overcoming the technical deficiency as she perceived it. She took it upon herself to compel an abortion by confessing not guilty, rather than reflecting upon her seeming dilemma or permitting the judge to consider the other alternatives, including whether there was a "manifest necessity” to interrupt the proceedings. As pointed out in Illinois v. Somerville:

"The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined ... is itself a weighty one. United States v. Jorn, supra. Nor will the lack of demonstrable additional prejudice preclude the defendant’s invocation of the double jeopardy bar in the absence of some important countervailing interest of proper judicial administration.” Id. at 471.

We conclude by pointing out that although whether the label of "dismissal” or "mistrial” is used to terminate a proceeding is not significant, that which is critical is whether the order contemplates an end to all prosecution of the defendant for the offense charged. Lee v. United States, supra at 30. In light of the State’s confession of "not guilty,” the dismissal hard on its heels without exploring alternatives clearly indicates that the court intended that the proceeding be terminated in the defendant’s favor. See United States v. Jenkins, 420 U.S. 358, 365 n. 7 (1975). In Lee, supra at 30, the court explained that

"A mistrial ruling invariably rests on grounds consistent with reprosecution [citation omitted] while a dismissal may or may not do so. Where a mistrial dismissal is granted on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged, Jenkins establishes that further prosecution is barred by the Double Jeopardy Clause. ”

Despite his expressed uncertainty whether double jeopardy would bar subsequent prosecution, we can hardly interpret Judge North’s dismissal following a confession of not guilty by the State other than as having concluded that the defendant simply could not be convicted of the offense charged. At the time, the Assistant State’s Attorney even expressed her own doubt about later prosecution. The judge, however, was left no alternative.

Judgment reversed.

Costs are not reallocated as part of the judgment of this court pursuant to Md. Rule 1082 f.

      . Although the two petitions alleged ownership in different individuals, it is conceded by the State that they both refer to the same building, which is owned by William Henry Cecil, Jr. and occupied by Pinkey Lee Murphy.

      . The obvious common-sense approach that when the judge acted on the not guilty confession "the fat lady had sung” is too simple a process for our complex legal thinking.

      . It appears at first blush, however, that the original charge was the correct one.

      . And she did so while fully cognizant of a double jeopardy problem.
      "MS. O’CONNOR: The State confesses not guilty to the crime. The evidence would show that the pump house is three feet from the dwelling house. He’s not charged with the proper section.
      THE COURT: Very well. Do you [wish] to file an amended petition?

        MS. O’CONNOR: Well, I’m not sure that we can with the jeopardy problem.
      THE COURT: Well, that’s one that you will have to research and resolve in your own mind.
      MS. O’CONNOR: Yes.
      THE COURT: In any event, since you have offered a confession of not guilty to the instant charge, your client is discharged, Mr. Pullen.”


text:
    WILMER MECHLIN v. STRONGHOLD, INC.
    [No. 1204,
    September Term, 1980.]

      Decided March 12, 1981.

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

      Clater W. Smith, Jr., with whom were Shoemaker & Smith on the brief, for appellant.

      Walter C. Martz, II, with whom were Martz & Hayward on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Until his death in 1932 George W. Stewart was the owner of a 26 Vi-acre tract of land on Sugarloaf Mountain prophetically named "Foul Play.” In 1947 the property was sold at a tax sale to Edward D. Storm, redemption foreclosed in 1948, and through mesne conveyances record title ultimately vested in appellee. In 1961 the heirs of Stewart collected the excess funds from the tax sale.

On April 16, 1964 appellant contracted Foul Play’s purchase from the heirs of George Stewart for $1,500.00, acknowledging it to be subject to "a purported conveyance to Ed. D. Storm ... pursuant to a tax sale April 14, 1947....” The deed therefore was not executed until October 16, 1972 following a decree obtained by the heirs of Stewart on February 24, 1970 from the Circuit Court for Frederick County, which declared the 1947 tax sale and subsequent foreclosure decree "null and void.”

Following appellant’s contract with the Stewart heirs but before their successful nullification of the tax sale upon which appellee’s claim to Foul Play’s ownership rested, appellee purchased several other pieces of land which lay between Foul Play and "the most convenient public road, a County road known as Stewart Hill Road.” Chagrined at such foul play in denying convenient access, appellant returned to the forum which made his ownership possible and sought further relief to enhance its further enjoyment. He demanded a "way of necessity” over appellee’s after-acquired property.

Ironically, after having defeased appellee from its claim of title, appellant now contends that appellee owned it all along. He first contends that

"The Decree of February 24,1970 holding null and void the tax sale and decree of foreclosure did not bar the tax sale purchaser from acquiring legal title to the Foul Play tract on ratification of the tax sale.”

The obvious purpose of this belated concession of prior ownership in appellee is to meld the Foul Play tract and the properties purchased by appellee between Foul Play and the road into one single tract owned by appellee. Then appellant points to

"The Decree of February 24,1970, as a judicial severance of properties commonly owned by Appellee, creat[ing] for the Foul Play tract a way of necessity across intervening property owned by Appellee otherwise barring its access to a public road.”

Anticipating the obstruction to his reasoning implicit in Shpak v. Oletsky, 280 Md. 355 (1977), i.e., that the necessity for the way must exist at the time the original purchase contract was executed, appellant contends that he

"... did not purchase the Foul Play tract from the Stewart heirs by the purchase contract of April 16, 1964.”

To reach that conclusion he must again contend completely contrary to his former contentions, that appellee was the "legal owner of record of the tract and that the Stewart heirs had only equities of redemption which could not be asserted unless it could be established in a court proceeding that, for lack of jurisdiction, their equities were not foreclosed by the foreclosure decree.”

Appellant cannot have it both ways. In the title proceeding that concluded in appellant’s favor on February 24, 1970, appellant produced evidence and argued that appellee was not the owner of the tract because its predecessor from which title had been supposedly derived had failed to conform to Md. Ann. Code art. 81, § 105.

"§ 105 Affidavit of search.
Every bill of complaint to foreclose the right of redemption filed against an unknown owner as hereinbefore provided shall have attached thereto an affidavit by the person making the search that the owner or owners of the property or a part thereof are unknown, although a complete search of the records as aforesaid for a period of at least forty years immediately prior to the institution of the suit has been made.”

Commenting in its memorandum opinion upon appellant’s evidence of this failure by appellee’s predecessor, the court concluded that the failure to name known owners as parties was a jurisdictional defect nullifying the subsequent foreclosure decree.

"Article 81 provided that an affidavit of search shall be filed indicating that a search had been made of the Land Records and Register of Wills Records of Frederick County for a period of forty years immediately prior to the institution of the foreclosure proceedings. The evidence clearly shows that a search of the Register of Wills Records immediately prior to filing the foreclosure proceedings would have revealed that the owners of this property were three of the petitioners in this case, namely, George W. Stewart, Glenn S. Sewell and Elmer Shamwell, and their whereabouts readily known. Nevertheless the petitioners were not named as defendants, no subpoenas were issued and no order of publication was published against them or any of them by name. The Court therefore was without jurisdiction to foreclose the rights of redemption of these three petitioners.”

The decree that followed did not simply reopen the prior foreclosure decree, but further declared both the decree and the prior tax sale upon which it was based "null and void.”

There are but two grounds upon which a tax foreclosure decree may be "reopened,” lack of jurisdiction and fraud. The statute so providing states:

"No application shall thereafter be entertained to reopen any final decree rendered under the provisions of this subtitle except on the ground of lack of jurisdiction or fraud in the- conduct of the proceedings to foreclose; provided, however, that no reopening of any final decree on the ground of constructive fraud in the conduct of the proceedings to foreclose shall be entertained unless the application therefor with regard to decrees heretofore rendered is made within one year following June 1,1968, and with regard to decrees hereafter rendered is made within one year from the date of the final decree. If the final decree of the court foreclosing all rights of redemption is set aside on the ground of lack of jurisdiction or constructive fraud, the amount required to redeem shall be the amount required by the provisions of this subtitle, and in addition thereto, the reasonable value, at the date the decree is set aside, of all improvements made on the property by the purchaser and his successors in interest.” Md. Ann. Code art. 81, § 113.

It is significant that the court below did not reopen the former decree in the sense of providing for further hearings, but instead simultaneously declared it a nullity based upon lack of jurisdiction. Obviously it followed the reasoning of Brashears v. Collison, 207 Md. 339 (1955) and Holland v. Billingsley, 208 Md. 635 (1955), which treat the failure to discover and make parties to foreclosure, owners of property the names of whom are easily ascertainable upon search of the records. Such failure provides a jurisdictional defect for want of necessary parties. Had the court turned its decision upon failure to file an affidavit (if such were the facts) the nullification of the decree for lack of jurisdiction may have been inappropriate. See Jannenga v. Johnson, 243 Md. 1 (1966); but see, Hauver v. Dorsey, 228 Md. 499, 503 (1962), distinguishing Brashears and Holland, both supra. Hauver clearly held that a failure to file an affidavit at all, as required by § 105, is not a jurisdictional defect such as would void a decree setting aside an owner’s rights of redemption. It is rather a procedural defect which may, however, constitute a constructive fraud providing an alternative ground for setting foreclosure aside, subject to statutory limitations. Jannenga v. Johnson, supra.

It is just such a distinction that defeats appellant’s syllogism, which briefly repeated is (1) common ownership by appellee prior to severance, (2) judicial severance, and (3) reasonable necessity at the time of severance. The foundation of the syllogism is the common ownership of the severed tract and the property upon which the way of necessity is sought to be imposed. Appellant relied upon both Md. Ann. Code art. 81, § 112 and Bowie v. Ford, 269 Md. 111 (1973), to support his theory of common ownership by appellee.

In Bowie v. Ford, ownership derived from a tax sale which had been obtained by actual fraud. To rectify the fraud, the Court of Appeals found it necessary to circumvent the barrier imposed by a statute similar to, but more restrictive than, § 113 because the tax sale occurred prior to 1944. That statute, § 99A, provides:

"When any tax sale made prior to January 1, 1944, has been finally ratified, then no court of equity or law in this State shall on and after June 1, 1966, entertain any proceedings to set aside or modify any title to any interest obtained in such sale.”

The Court of Appeals decided that while it had no jurisdiction to "set aside or modify any title to any interest obtained in such sale,” it was not precluded from declaring what interest had been obtained in the tax sale. The Court declared that the interest obtained was only that of a trustee ex malefício, i.e., that of a holder of bare legal title, because the fraud imposed upon the purchaser at the tax sale formed a constructive trust as a matter of law, with the equitable title remaining in the rightful heirs of the original owners that the trustee had duped.

Appellant’s reliance on this case is for its holding that the defrauding tax sale purchaser had nonetheless obtained legal title by the tax sale, and he reasons that such a title so obtained carries other usual incidents of legal ownership. The Court in Bowie, he notes, pointed out that were there a bona fide purchaser in that case, the bare legal title of the constructive trustee would have been sufficient to pass good title to a good faith purchaser for value. Id. at 119. Presumably, then, the reasoning of appellant is that appellee also obtained at the very least "bare legal title,” and then more by virtue of § 112. He reasons that all other indicia and responsibilities of ownership gravitated to appellee during that "ownership” period and adhered throughout. And upon divestiture, the responsibility to provide access to the property remains with appellee to the same extent it would have, had it been a willing grantor. That theory is especially appropriate here, according to appellant, because the interest acquired by appellee in the Foul Play tract was more than the bare legal title acquired in Bowie, since appellee had not committed a fraud to obtain it. The rub, of course, avoided if recognized by appellant, is that appellee never owned the Foul Play tract.

Bowie is instructive if inapposite in that it teaches us first to determine what interest was acquired at the tax sale, which was subsequently declared null and void along with the decree upon which appellee’s title had been based. The nullity, predicated upon lack of jurisdiction, conveyed no interest in Foul Play to appellee because a court without jurisdiction can convey nothing more than a purported grantor who has no title to pass. This is especially true where the jurisdictional defect is for lack of necessary parties, which parties are the source of ownership of the very interest the court purports to convey to the tax sale purchaser.

We emphasized in the commencement of this opinion that both the sale and foreclosure decree were declared "null and void” by the subsequent decree of February 24, 1970. Notwithstanding the formality of language thereafter "reopening and rescinding” that invalid decree, the effect of it was the same. The prior decree, being a nullity, had conveyed nothing to appellee. Its effect was as described by Freeman on Judgments, sec. 322, as quoted with approval by Fooks’ Executors v. Ghingher, 172 Md. 612, 619, cert. denied, 302 U.S. 726 (1937):

" 'A judgment void upon its face and requiring only an inspection of the record to demonstrate its invalidity is a mere nullity, in legal effect no judgment at all, conferring no right and affording no justification. Nothing can be acquired or lost by it; it neither bestows nor extinguishes any right, and may be successfully assailed whenever it is offered as the foundation for the assertion of any claim or title. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress. No action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any legislative or other department of the government can invest it with any of the elements of power or of vitality. * * * Such a judgment has been characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable of bearing no fruit to plaintiff but constituting a constant menace to defendant.’

Such a judgment was not only merely erroneous because of some irregularity in the mode of proceeding or error on the part of the Court in the application of the law of the case, but being a judgment rendered without jurisdiction, it was absolutely void and was subject to being assailed at all times and in all proceedings. State v. Ambrose, 191 Md. 353, 369 (1948).

Judgment affirmed.

Costs to be paid by appellant.

      . It is interesting to note that while Hauver, supra at 503, cites Thomas v. Hardisty, 217 Md. 523, 533 (1958), as authority that "tax foreclosure proceedings are in rem and not in personam," a footnote in Hardisty states that "both the Shapiro [v. National Color Printing Co., 191 Md. 194 (1947)] and Thomas [v. Kolker, 195 Md. 470 (1950)] cases show tax foreclosure proceedings may also become in personam proceedings through service of process on the defendant.” 217 Md. at 534 n. 3.

      . The propriety of the finding of want of jurisdiction in the Court’s opinion preceding the February 24, 1970 decree is not before us and was never appealed. The 1970 decree declaring the tax rule and foreclosure decree null and void based upon that finding was derived at the instance of appellants and has been for a decade, no longer subject to attack.

      . Section 112 provides that upon compliance with the tax sale foreclosure procedures set forth in the Code, and upon expiration of the times therein established, the court shall pass its decree foreclosing equity of redemption which decree shall vest an "absolute and indefeasible” title in fee simple to the property.