text:
    ANTHONY TYRONE WARD v. STATE OF MARYLAND
    [App. No. 136,
    September Term, 1981.]

      Decided July 8, 1982.

    Before Gilbert, C. J., and Morton and Thompson, JJ.
    Submitted by applicant Anthony Tyrone Ward in proper person.
    Submitted by Stephen H. Sachs, Attorney General, and
      William A. Swisher, State’s Attorney for Baltimore City, for respondent.
   Thompson, J.,

delivered the opinion of the Court.

On February 2, 1979, Anthony Tyrone Ward, the applicant, was convicted by a jury in the Criminal Court of Baltimore (Perrott, J.), of burglary and was sentenced to three years’ imprisonment consecutive "with any sentence for violation of parole.” The conviction was affirmed by this Court in an unreported per curiam opinion, Ward v. State, No. 1049, September Term, 1979, filed April 30, 1980. A petition for reduction of sentence was denied on March 31, 1981.

On November 18, 1981, applicant filed his first petition seeking post conviction relief. (Art. 27, Sec. 645A — 645J). A hearing on the petition was held on December 30, 1981, and was denied by a "Memorandum Opinion” filed January 5, 1982. Applicant sought leave to appeal that denial. In an unreported opinion, Ward v. State, Application for Leave to Appeal, No. 136, September Term, 1981 we neither granted nor denied the application but remanded the case for the hearing judge to file a written memorandum containing "findings of facts” on the competency of counsel issue. The hearing judge’s second "Memorandum Opinion” was filed on April 22, 1982 and, pursuant to our prior mandate, the record was returned to us.

The only issue presented in this application is whether applicant’s trial counsel was ineffective because he failed to request certain jury instructions.

The Hearing Judge’s Ruling

In denying applicant’s complaints of trial counsel incompetency, the hearing judge stated that 'Tt]he trial record, when viewed as a whole, demonstrates that petitioner was afforded a high level of legal representation.” He did not, however, set forth any reasons to support his findings. In view of this blanket conclusion, we are unable to properly evaluate the merits of the present application. As we must again remand this case, we shall expound upon the mandated procedure where a hearing judge is required to determine whether trial counsel rendered incompetent representation.

The Law

In State v. Lloyd, 48 Md. App. 535, 540, 429 A.2d 244 (1981), we reviewed the law regarding competency of counsel and explained:

"The test to be applied in determining if a defendant in a criminal case was denied effective assistance of trial counsel is whether under all of the circumstances of the particular case a defendant was afforded genuine and effective representation. Slater v. Warden, 241 Md. 668, 673, 217 A.2d 571 (1966); State v. Mahoney, 16 Md. App. 193, 201, 294 A.2d 471 (1972). See also Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir. 1977), cert. denied, 435 U.S. 1011 (1978) where the Court, relying on McMann v. Richardson, 397 U.S. 759 (1970), held that the test for judging effective assistance of counsel is not whether representation was so poor as to make a farce of the trial, but whether the defense counsel’s representation was within the range of competence demanded of attorneys in criminal cases. Moreover, the burden is on the defendant to prove that defense counsel’s representation was not effective. State v. Hardy, 2 Md. App. 150, 156, 233 A.2d 365 (1967). 'Each case wherein ineffective assistance of counsel is asserted, must necessarily be decided upon the facts of that case.’ Thomas v. State, 516 S.W.2d 761, 765 (Mo. Ct. App. 1974).”

Thus, when a hearing judge is required to determine whether trial counsel rendered incompetent representation he must not only ascertain what trial counsel did or failed to do, he must also weigh counsel’s actions in the context of the particular case. Where, as here, the incompetency claim is based on counsel’s actions with respect to jury instructions, the following three step analysis provides an appropriate means to resolve the question.

Step One. Determine if defense counsel erred.

The first determination under the facts of this case is whether defense counsel was wrong in failing to object or in failing to offer appropriate instructions. We shall consider both types of errors separately.

a. Failure to object to incorrect instruction

If the petitioner claims that the trial judge gave an improper instruction to which his defense counsel did not object, the hearing judge must first examine the instruction itself. If the instruction was a proper statement of law there would be no error in the defense counsel’s failure to object and, in such case, the post conviction complaint should be dismissed. If, on the other hand, the petitioner is correct in his claim that the trial judge gave an incorrect instruction, counsel’s failure to object to the incorrect instruction would constitute error. The mere existence of this type of error does not, however, warrant a finding of incompetency absent an inquiry by the hearing judge into the reason for counsel’s neglect. This determination is accomplished in step two.

b. Failure by defense counsel to request appropriate instruction.

If the basis for petitioner’s claim of error is that his counsel failed to request a particular instruction, the hearing judge must make two determinations. First, he must determine whether the unrequested instruction correctly sets forth the law. If it is not a correct statement of the law, the post conviction claim must be denied for failure to show error. If the unrequested instruction provides an accurate statement of the law, the hearing judge must, as his second determination, decide whether considering the particular circumstances of the trial, the instruction would have been appropriate. For example, if a counsel defending a murder charge fails to request a self-defense instruction, no post conviction relief would lie for the omission if the self-defense issue was not fairly generated by the facts. See, Street v. State, 26 Md. App. 336, 338 A.2d 72, cert. denied, 275 Md. 756 (1975). If the hearing judge determines that the unrequested instruction would not have been appropriate, the conclusion mandates a finding that the post conviction relief be denied. On the other hand, if the hearing judge determines that the unrequested instruction both correctly states the law and was appropriate, he must conclude that trial counsel erred in not requesting it. This error, however, does not necessarily signify the existence of incompetent representation. Before such determination can be made, the hearing judge must assess the reason for counsel’s action. This requires the hearing judge to proceed to step two.

Step Two. Determine reason for counsel’s action.

In this second step the hearing judge must analyze the reasoning behind counsel’s erroneous action to determine whether it was justifiable or non-justifiable. If defense counsel commits an error but the reason for his action is justifiable, his action will not be viewed as incompetency.

Because a justifiable reason will preclude a finding of incompetency, the hearing judge must consider counsel’s motivation for his erroneous action. For example, if counsel’s action regarding the erroneous jury instruction was effectuated as a legitimate "trial tactic,” the probity of his action is not subject to second guessing by post conviction review. Davis v. State, 40 Md. App. 467, 471 n. 4, 391 A.2d 872 (1978), rev’d in part on other grounds, 285 Md. 19 (1979). The error may also be justified where there was a change in the law between the time of the trial and the time of the post conviction proceeding. In such instance, the hearing judge must determine whether trial counsel’s failure to request an instruction was in conformity with the law existing at the time of trial. If counsel’s action was in conformity with the then existent law and was a generally accepted procedure, he will not be deemed incompetent. Prokopis v. State, 49 Md. App. 531, 536, 433 A.2d 1191 (1981). Counsel will be afforded a reasonable time in which to become familiar with the new law before he will be deemed to have rendered incompetent representation. See, Squire v. State, 280 Md. 132, 368 A.2d 1019 (1977), (four days was considered too short a period to expect counsel to become aware of a change in the law).

Where a defense counsel’s error is premised on a non-justifiable rationale, it may constitute a legitimate claim of incompetent representation. The most common type of non-justifiable error is ignorance of a crucial legal principle. For example, in Wright v. State, 33 Md. App. 68, 363 A.2d 520 (1976), the Court suggested that counsel’s culpable ignorance of the law that led him to fail to object to an improper court instruction provided a basis for post conviction relief.

As in the first step, a mere determination that counsel has no justification for his error does not automatically entitle a petitioner to post conviction relief. Before post conviction relief may be granted, the hearing judge must complete step three.

Step Three. Determine whether based "upon the facts of the case” defense counsel’s incompetent representation contributed to the conviction.

In this third and final step, the hearing judge must determine whether the act of incompetency warrants post conviction relief.

The Uniform Post Conviction Procedure Act affords relief only for "claims that the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of this State....” Art. 27, Par. 645A (a) (1982 Repl. Vol.). Although an error may involve a violation of a Constitutional guarantee or a law, where it does not affect the fact finder’s determination of guilt or innocence, it cannot be said that the "judgment was imposed” on account of error. Such a case affords no basis for post conviction relief. This was demonstrated in Dorsey v. State, 278 Md. 221, 362 A.2d 642 (1976). In that case the trial judge, in defining the crime of second degree murder, instructed the jury, as was proper at the time, that the defendant was required to disprove malice. The trial judge also instructed the jury as to the elements of first degree murder. The jury convicted Dorsey of first degree murder. Subsequently, in an unrelated case, the Court of Appeals held that the definition of second degree murder, as given in Dorsey, was improper. It was also determined that the new definition of second degree murder should be afforded retroactive effect. See, State v. Evans, 278 Md. 197, 362 A.2d 629 (1976). Dorsey appealed his conviction complaining that the trial judge’s instruction as to second degree murder was incorrect. The Court of Appeals agreed but ruled that the impropriety was immaterial because Dorsey had been convicted of first degree murder. The reasoning of this holding is equally pertinent to post conviction cases. Thus, if a defendant is convicted of a particular crime, the only instructions that are significant on appeal are those that the jury necessarily took into consideration in reaching their actual verdict. If an improper instruction was given that concerned a charge or charges of which the defendant was acquitted, the impropriety of the instruction becomes a theoretical question, providing no basis for post conviction relief.

Thus, if the hearing judge determines that the act of incompetency affected the verdict or sentence, the petitioner is entitled to post conviction relief.

The Instant Case

In the instant case the hearing judge made no findings as to counsel’s failure to request that the jury be instructed about the voluntariness of applicant’s statements, nor did he make any findings as to applicant’s claim that the jury was improperly instructed about his prior criminal record. The hearing judge must follow the three step procedure set forth in this opinion, and file a written memorandum in which he determines whether counsel rendered effective assistance. If he decides counsel’s representation does not warrant post conviction relief, the record shall again be returned to this Court for our consideration of applicant’s application.

Leave to appeal neither granted nor denied and case remanded for the fíling of a memorandum pursuant to Rule BK45 b. and the return to this Court.

The application is denied.

      . If defense counsel notes a proper objection to a trial court’s incorrect instruction or incorrect refusal to instruct, a direct appeal should be filed and the issue pursued in the direct appeal. Failure to do so usually effects a waiver of the issuer for purposes of subsequent post conviction petitions. Tiller v. Warden, 1 Md. App. 286, 229 A.2d 600 (1967). If an appeal is noted but appellate counsel fails to present the subject of the improper instructions to the appellate court, a subsequent post conviction petition based on incompetency of appellate counsel may lie. See, Wilson v. State, 284 Md. 664, 399 A.2d 256 (1979), cert. denied, 446 U.S. 921 (1980).

      . There are many other examples; one is where the requested instruction is covered by other instructions.

      . By erroneous jury instruction we also mean a failure of counsel to request an appropriate instruction that the trial judge failed to give.

      . We note that where there has been a change in the law between the time of trial and the time of the post conviction proceeding, having retroactive effect, the applicant may be entitled to relief as a consequence of the new law although not having a claim of incompetent representation.

        . In United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the United States Supreme Court ruled that in order for a federal habeas corpus petitioner to prove entitlement to relief under 28 U.S.C. § 2255 he must show both "cause” for any procedural default and must also show "actual prejudice.” The Court defined an error causing actual prejudice as one that "so infected the entire trial, that the resulting conviction violates due process.” Id. at 1595. The Court ruled that the mere fact the error may have been "undesirable” or "universally condemned” was not enough. In other words, a federal petitioner, in order to obtain habeas corpus relief, must show that he probably would not have been convicted but for the error.

      . If the hearing judge decides that counsel’s representation was ineffective the State shall, in accordance with Md. Rule BK45 b., have the right to file an application for leave to appeal the granting of the post conviction relief.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    CRAFTSMAN PRESS, INC. v. COMPTROLLER OF THE TREASURY
    TNo. 1288,
    September Term, 1981.]

      Decided July 9, 1982.

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

      Martin Shulman for appellant.

      Linda Koerber Boyd, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This is an appeal by Craftsman Press, Inc. (Craftsman), appellant, from an order of the Circuit Court for Prince George’s County affirming the decision of the Maryland Tax Court which upheld an assessment for sales taxes made by the Comptroller of the Treasury of the State of Maryland, appellee herein, against the appellant for the period ranging from 1971 to 1973.

Craftsman, a commercial printer in Bladensburg, Maryland, produces printing by means of "offset” or "photo-” lithography, a process whereby a photograph is taken of "camera-ready” images. Camera-ready compositing work ("repro’s”) is prepared on sheets of paper by compositors from drafts supplied by Craftsman’s customers. The image from the photographic negative is transferred onto a metal plate, the plate is placed on a printing press, and printed work is then produced.

At the hearing in the Tax Court, Craftsman’s president, Mr. Arnold R. Altshuler, testified for Craftsman and was qualified as an expert witness in lithography and printing.

Most importantly, from a historical viewpoint, Mr. Altshuler testified that photo-lithography started to become the principal method of printing in the United States about 35 years ago, i.e., just about the time that Maryland’s Retail Sales Tax Act was adopted. Prior to lithography, Mr. Altshuler testified, compositors made no retail sales of tangible personal property to printers, but merely transferred physical metal to printers on a temporary basis, to be used in producing "letterpress” work. After the metal image created by the compositor was used in the letterpress printing process, the metal was returned to the compositor and melted down for reuse by him. What the printer therefore obtained from the compositor was temporary custody of a composed typographic image to be reproduced by letterpress printing.

Mr. Altshuler testified that in the lithographic process, instead of transferring heavy metal between compositor and printer, the compositor prepares a piece of paper bearing the image he has created, the piece of paper being known as a "repro.” The image used in lithographic printing is transferred to the printer through the medium of the sheet of paper constituting the "repro.” The present state of the printing and compositing arts, however, is such that transferring physical pieces of paper is not necessary: image transfer can take place directly from the compositor to the metal lithographic printing plate without intervening paper or a photographic step.

Mr. Altshuler testified as an expert that in his opinion a typographer’s providing compositing to a printer is "basically a service. . .. What we are buying is his know-how in putting his style together.” It was uncontradicted that Craftsman and other printers are not billed by compositors for any tangible product; they are billed exclusively for the labor creating the image produced by the compositor. The compositor’s bill is therefore measured by the amount of typesetting ("ems”) on a page, not the number of paper "repros.” The cost of the compositing therefore varies with the nature of the composition and the difficulty or amount of craftsmanship which goes into making a particular image. Mr. Altshuler testified that "it takes a whole line of skills .. . to make that image” and that the culmination of the compositor’s "skill and craftsmanship” results in the image which becomes the "repro.” Craftsman contended that it had never been billed for physical pieces of paper or ink that constitute a "repro,” but only for the work used to create the typographic images. The image produced is the essence of the typographer’s work. Once camera-ready copy is photographed, the copy or "repro” is destroyed. The appellant argued that it is the typographic image itself which gives the "repro” its entire worth; after a picture is taken of the "repro,” it is not worth anything.

The case originally arose from an assessment of Craftsman made by the Retail Sales Tax Division of the Comptroller of the Treasury of a deficiency in sales tax. Craftsman contested the assessment following the required administrative procedure which culminated in a formal hearing and a written opinion by the Hearing Officer dated April 30, 1979. That opinion determined that the purchase of "repros” by Craftsman was a transaction subject to sales tax and denied Craftsman’s application for revision of the assessment. The Hearing Officer upheld the assessment in the amount of $33,867.32 plus penalty and interest.

Craftsman appealed to the Maryland Tax Court which held a trial de novo. The Tax Court by Order and Memorandum dated February 21, 1980, affirmed the assessment. A further appeal was then filed in the Circuit Court for Prince George’s County which resulted in an order affirming the judgment of the Tax Court. It is from that order that this appeal was filed. The following issues are raised by this appeal:

1. Were "repros” produced in the performance of compositing services subject to payment of sales tax as tangible personal property?

2. Was the Comptroller of the Treasury legally correct in his revision of the original Rule 30?

3. Should either penalty or interest or both imposed on the sales tax assessment be abated?

1. and 2.

The assessment against Craftsman was made under the authority of the Comptroller’s revised Rule 30, which was in effect from May 13,1971 through June 30,1973. The original Rule 30 was adopted by the Comptroller at the time of the enactment of the Retail Sales Tax Act in 1947. Rule 30 was drafted by a committee which in considering this industry and others was charged with the responsibility, as phrased by Mr. Richard Engelbert, former Chief of the Retail Sales Division, of placing regulatory meat on the Sales Tax Act skeleton. As a result of the committee’s labors, Comptroller’s Rule 30 was adopted. It provided in pertinent part as follows:

The sale of typography, art work, photo-engravings, electros, mats, stereotypes, hand or machine compositions, lithographic plates or negatives, electrotypes, etc. to a person engaged in printing of tangible personal property and to be used directly by such person shall be deemed essentially sales of services and not taxable. The supplier of the service is deemed the consumer of all material used in supplying such service, and must pay the tax to his vendor.

Mr. Engelbert testified that he had served in the Retail Sales Tax Division of the Comptroller’s office since 1947 and that Rule 30 had been adopted even before the effective date of the Act. He stated that the purpose of Rule 30 was to interpret the provisions of the Retail Sales Tax Act under the Comptroller’s statutory authority to define terms and write rules and regulations. The Comptroller during the entire period of the effectiveness of the original Rule 30 had followed the position that compositing was a nontaxable service for the reasons testified to by Mr. Engelbert when he said,

[U]nder these rules any person who processes a plate which he will use in his own printing operation or which he will sell to another person to be used by him to print products for sale must pay the tax on everything which he buys, but when the processed plate is sold to a printer the supplier of the plate is not required to collect the tax. This means it doesn’t make any difference who buys the raw materials; tax is applied to the raw materials only and not to the processed plate, which we have considered as a sale of service to the printer rather than a sale of tangible personal property, the placing of image on the property. This would be true whether trade composition, art work, or any other form of the placing characters on paper or paper-like substances.
These rules will differ from the Rule 63, for example, which applies to general manufacturers.

Mr. Engelbert further testified that in 1955 legislation was introduced in the Maryland Senate for the purpose of creating new printing-related exemptions from the sales tax statute but including also a number of items already defined as exempt under Rule 30. That legislation failed and the Legislature left the original Rule 30 intact.

Effective May 13, 1971, the Comptroller’s office revised Rule 30 completely reversing its original position. It adopted a revised Rule 30 which from May 13,1971 to June 30, 1973 provided in pertinent part as follows:

Sales to persons engaged in printing of typography, art work, photo-engravings, electros, mats, stereotypes, hand or machine composition, lithographic plates or negatives, electrotypes, etc., together with machinery, tools, equipment and replacement parts which are not incorporated into the finished product or destroyed in the printing process are taxable to the printer.

Despite the Comptroller’s revision of Rule 30 in 1971, it is clear that the Comptroller remained of the view that a printer’s purchase of typography involved a nontaxable transaction. As evidence of this position the Comptroller requested the advice of the Attorney General on a proposed further revision of Rule 30 as follows:

The sale to all persons engaged in the printing of tangible personal property of typography, composition, reproduction proofs, photographic negatives, photoengravings, lithographic plates, electrotypes, stereotypes, mats, and art work, including layouts and paste-ups, and similar items will be considered sales of services and not taxable if: (1) the item is produced or designed on a special order for a specific printing job; (2) its value consists primarily of the services used to prepare an image which is to be reproduced in the printing process; (3) it is of inconsequential value for any purpose other than for the reproduction of the image contained on the items; (4) it will be discarded after it is used in printing the material for which it was designed or produced. The supplier of such items will be considered to be selling services and will not be entitled to any of the exemptions from sales tax contained in Section 324(f) and must pay the tax on all tangible personal property purchased by him for use in supplying such services.

The Attorney General, in 51 Op. Atty. Gen. Md. 641, declined to approve the wording of the proposed second revision pending the Comptroller’s providing additional information to support the further revision. In the light of this opinion a clarifying amendment codifying the original Comptroller’s Rule 30, as it was in effect from 1947 until 1971, was placed on the agenda of the joint Budget and Audit Committee of the Legislative Council of the Maryland Legislature. The Comptroller was requested to state his position on the proposed legislation and the then Director of the Retail Sales Tax Division replied in a letter dated August 25, 1972, in which he stated in part:

The amended rules which became effective May 13,1971, were designed to, and we believe do, result in placing the printing industry on exactly the same footing as all other persons manufacturing, assembling, processing or refining tangible personal property for sale. They fully remedy the problem noted by the Maryland Tax Court, in that they accord the printing industry the benefits of the exclusion for property which is "destroyed” in the production of property for sale, and require the taxation of items of property on which other manufacturers presently pay the tax.
We can assure you that it was never our intention in amending these rules to affect the revenue structure of the sales tax and that the previous system was not unsatisfactory to us other than the fact that there were serious questions raised as to its validity. Insofar as a legislative enactment would cure this defect, we are not opposed to returning to the previous treatment granted the printing industry.

A bill was prepared and introduced which reinstated the previous exemption under Rule 30; this bill was adopted by the Legislature and signed by the Governor adding Article 81 § 326(dd) which became effective July 1, 1973.

The basic statutory provision imposing a tax on sales of tangible personal property is found in Maryland Code (1957, 1980 Repl. Vol.) Article 81, § 325 (a) which states in part:

For the privilege of selling certain tangible personal property at retail as defined above and for the privilege of dispensing certain selected services defined as sales at retail by § 324 (f) of this subtitle a vendor shall collect from the purchaser a tax at the rate specified in this section.. ..

Transactions involving merely the provision of "services” are outside the scope of the sales tax. Only certain selected services defined as retail sales by § 324 (f) are subject to sales tax. Maryland Code (1957,1980 Repl. Vol.) Article 81, § 326 (j) provides a specific sales tax exemption for "professional, insurance or personal service transactions which involve sales as inconsequential elements for which no separate charges are made.” Article 81, § 365 (a) gives the Comptroller full authority "to make, adopt and amend such rules and regulations as he shall deem necessary to carry out the provisions of this subtitle and to define any terms used herein.” It seems clear to us that this is what the Comptroller did when he adopted the original Rule 30. The Comptroller argues that the Act as adopted is not ambiguous and that it is clear that the compositing here involved is required to be subject to payment of the sales tax as the sale of tangible personal property.

We do not find the provisions of the Act as crystal clear as suggested by the Comptroller. Section 325(a) provides that "services” are generally not subject to sales tax. Section 324 (f) (l)-(8) indicate that some transactions involving services are subject to tax. Nowhere is the term "service” as used in § 325 (a) or 326 (j) defined. No definition of the degree of sales permissible in § 326 (j) transactions without making these transactions subject to sales tax is set out in the Act. Even the terms "printing” as used in § 324 (f) (2) and "compositing” are not defined. It is obvious therefore that the original committee which prepared the necessary regulations was faced with a decision to determine whether "compositing” was a personal service transaction. The Comptroller, with the advice of his committee in reaching a definition of what he concluded was ambiguous terminology in the law, decided the transaction here discussed was the nontaxable "practice of graphic art” and not a taxable sale of tangible personal property. It was on the basis of this decision that he adopted the original Rule 30.

Webster’s New International Dictionary 2d, Unabridged (1940) at p. 2228, defines the noun "service” as "performance of labor for the benefit of another.” The Comptroller’s own witness, Mr. Engelbert, in testifying concerning the application of Rule 30 over the 24-year period it was in effect said:

We have considered as a sale of service to the printer the placing of image on the property. This would be true whether trade composition, art work, or any other form of the placing characters on paper or paper-like substances. «

In the light of the patent ambiguity of the Sales Tax Act itself in the resolution of this issue it was appropriate for the Comptroller to adopt Rule 30 in the form he chose to adopt, i.e., defining compositing as a service not subject to sales tax. The Supreme Court, in Zenith Radio Corp. v. United States, 437 U.S. 443, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978) spoke of the deference to be given to administrative interpretation of a statute when it said:

It is undisputed that the Treasury Department adopted the statutory interpretation at issue here less than a year after passage of the basic countervailing-duty statute in 1897, see TD 19321, 1 Synopsis of [Treasury] Decisions 696 (1898), and that the Department has uniformly maintained this position for over 80 years. This longstanding and consistent administrative interpretation is entitled to considerable weight.
"When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. 'To sustain [an agency’s] application of La] statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance injudicial proceedings.’ ” Udall v. Tallman, 380 U.S. 1, 16, 13 L Ed 2d 616, 85 S Ct 792 (1965), quoting Unemployment Compensation Comm’n v Aragon, 329 US 143, 153, 91 L Ed 136, 67 S Ct 245 (1946).
Moreover, an administrative "practice has peculiar weight when it involves a contemporaneous construction of a statute by the Lpersons] charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.” Norwegian Nitrogen Products Co. v. United States, 288 US 294, 315, 77 L Ed 796, 53 S Ct 350 (1933); see, e.g., Power Reactor Co. v Electricians, 367 US 396, 408, 6 L Ed 2d 924, 81 S Ct 1529 (1961).

In Maryland, as well, the Court of Appeals has held that the construction of the meaning of words placed upon a statute by administrative officials soon after its enactment should not be disregarded except for the strongest and most cogent reasons. See Comptroller of Treasury v. M. E. Rockhill, Inc., 205 Md. 226, 107 A.2d 93 (1954).

The adoption of Rule 30 by a committee including the Assistant Attorney General who drafted the Sales Tax Act must be considered as a fully informed, authoritative interpretation of the statute so far as compositing was concerned. The subsequent administrative interpretation of the rule for some 24 years, the legislative history of the Sales Tax Act and the expression of the intent of the Legislature when it adopted § 326 (dd) convince us that it was the intent of the Act to treat compositing as a service and not as a sale. It was in our opinion improper for the Comptroller and the Tax Court to reverse the long-term administrative interpretation of the Rule unless the original rule could be shown to have been illegal, irrational or contrary to the legislative intent. See Fribourg Navigation Co. v. Commissioner, 383 U.S. 272, 86 S.Ct. 862, 15 L.Ed.2d 751 (1966); American Oil Company v. Mahin, 49 Ill.2d 199 (1971).

Counsel for the appellant has furnished us with a long list of authorities which indicate that in many states either by law or by regulation compositing is deemed a service and therefore not subject to a sales tax on the transfer of personal property. In other jurisdictions, thelaw similar to Maryland Code (1957, 1980 Repl. Vol.) Article 81, § 326 (j) holds that the paper "repro” is merely incidental to or an inconsequential part of compositing. The authorities, collected in the 1981 CCH All State Sales Tax Reporter, indicate that 16 states have held either by legislative action or by court decisions, that compositing is a service as that the furnishing of "repros” is merely incidental to the service, skill and artistic ability used in the preparation of such reproduction proof and therefore not subject to sales tax. Six other states hold that compositing is a service but found that their state law makes the service a specifically taxable one.

The trial judge affirmed the Tax Court because it inferred that the Court had implicitly found as a fact that compositing is tangible personal property within the intendment of the Retail Sales Tax Act. We have carefully considered the decision of the Tax Court and find nothing in the record extract to support the conclusion of the trial judge. The Comptroller presented no witnesses on the issue whether compositing is tangible personal property. In contrast, the appellant presented two witnesses, acknowledged as experts, who gave credible testimony that the creation of the "repros” is a service. The uncontradicted testimony was that a compositor bills only for his labor and the president of the appellant testified that in the course of purchasing $3,000,000 worth of compositing over a 10-year period Craftsman had never been billed for any physical property, paper or ink but only for the labor or service expended in the compositing and that charges were based on the linear measure of the space involved in compositing and not for any physical property.

The Tax Court was required to give significant weight to the probative evidence before it and the only reliable evidence before the Court established that the compositing involved the rendering of a service. The Court, after proceedings that stretched over a period of five and one half years, chose to affirm the assessment by the Comptroller without any findings of fact and without any legal or factual explanation as to the method by which it reached its conclusion. We conclude the Tax Court’s finding was not supported by the evidence and that the trial judge erred in affirming the Tax Court.

3.

In the light of our decision on the first and second issues, this issue is moot and we decline to address it.

Order of Circuit Court for Prince George’s County reversed.

Costs to be paid by Comptroller.

      . See, e.g., TD 19729, 2 Synopsis of Decisions 157 (1898); TD 20039, 2 Synopsis of Decisions 534 (1898) TD 43634, 56 Treas Dec 342 (1929); TD 49355, 73 Treas Dec 107 (1938).


author: Thompson, J.,

text:
    CHARLES A. STAIR et ux. v. WILLIAM G. MILLER et al.
    [No. 1378,
    September Term, 1981.]

      Decided July 9, 1982.

      The cause was argued before Morton, Thompson and Liss, JJ.

      Sidney Schlachman, with whom were George E. Reuling and Steinberg, Schlachman, Potler, Belsky & Weiner on the brief, for appellants.

      Elwood E. Swam for appellee Miller. Marker J. Lovell, with whom was David LI. Taylor on the brief, for appellees Ralph E. Koontz and Treva I. Koontz.
   Thompson, J.,

delivered the opinion of the Court.

Charles A. Stair and Lorraine D. Stair, his wife, appellants, complain because the chancellor, Luke K. Burns, Jr., sitting in the Circuit Court for Carroll County, granted William G. Miller, one of the appellees, a right-of-way by necessity over their property instead of that of Ralph and Treva Koontz, also appellees.

The appellee, Miller, is the owner of six acres of land without road frontage. This land is separated from the Pleasant Valley Road by land of Ralph and Treva Koontz, and from Hughes Shop Road by land of the appellants and others. The appellants’ first assertion is:

"I. An Equity Court Should Refuse to Create An Easement Over The Land of One Neighboring Landowner When An Easement Currently Exists Over the Land of Another Neighboring Landowner.”

The Stairs contend the chancellor erred in granting the way of necessity over their land when there was a right-of-way existing over the land of Koontzes. The argument is without merit. In order to establish a right-of-way by necessity, it must be demonstrated that the land for the benefit of which the easement is claimed and that over which it is claimed belonged to the same person at the same time. Michael v. Needham, 39 Md. App. 271, 384 A.2d 473, cert. denied, 283 Md. 736 (1978). Although all the properties herein involved were at one time owned by a single ownership, the Koontz land was sold off prior to that of the lands of the remaining parties hereto and at that time all parcels had road frontage; therefore, there can be no right-of-way by necessity over the Koontz land. Oliver v. Hook, 47 Md. 301 (1877). See also, Hancock v. Henderson, 236 Md. 98, 202 A.2d 599 (1964); and Johnson v. Robinson, 26 Md. App. 568, 338 A.2d 88, cert. denied, 276 Md. 748 (1975). There is no contention that there was an express grant of a right-of-way over the Koontz land and there is no evidence which would establish a right-of-way by prescription.

"II. When Locating An Easement By Necessity, A Trial Court Should Make Specific Findings Concerning the Degree of Burden Placed on the Servient Tenement.”

The appellants assert that the trial judge failed to consider whether the right-of-way specified was the least burdensome and most reasonable route across appellants’ land. We agree.

In directing the location of the easement, the trial court ordered:

FURTHER ORDERED AND DECREED that said Right of Way by Necessity shall run from the southwest portion of the Miller tract in a westerly direction for a distance of approximately eight hundred and seventy-five (875) feet and twenty (20) feet wide across the property of the Respondent, Charles A. Stair and Lorraine D. Stair, to Hughes Shop Road, in direct line with the depicted seven (7)-foot farm road on the R.T.F., Inc. survey of the William G. Miller property....”

That a road currently exists on the appellants’ property does not conclusively establish that particular road as the right-of-way. It is only where the parties agree, either expressly or by implication, that that road is to be the right-of-way will the route be so enforced. See, Sibbel v. Fitch, 182 Md. 323, 34 A.2d 773 (1943). While William Miller, appellee, testified as to the landlocked status of his property, he at no time testified that he ever made use of appellants’ road as the means of ingress or egress to and from his property. Thus, there was no implied agreement. As to the absence of an express agreement, Charles Stair testified that he had cleared the road solely for his own convenience and use in farming his property. Stair further stated that, from the inception of his grading of the road he had placed a large "No Trespassing” sign which, to his knowledge, had not been violated. Thus, we see no express agreement. It appears that the trial judge designated appellants’ roadway for no reason other than its present existence. The appellants should not be so burdened merely because they have chosen to build a road for their own convenience. This seven-foot-wide road runs through the center of their fields and while being of potentially great convenience as a right-of-way to the appellee, presents a burden of some significance to the appellants if used in that manner. It is well established that a way of necessity should be located so as to be the least onerous to the owner of the servient estate while, at the same time, being of reasonable convenience to the owner of the dominant estate. See, Michael v. Needham, supra; Johnson v. Robinson, supra. Further, while the trial judge concluded in his memo that "by directing the easement over the Stair property, we will create the least amount of damage to the adjoining property owners,” he at no time evaluated the issue of the least burdensome route within the Stair property. Thus, we will remand this case to the Circuit Court to determine whether or not there is evidence to support an implied agreement as to the location of the road and, if not, to locate a right-of-way which will inconvenience the appellants only so much as necessary while providing appellee reasonable ingress and egress to his land.

"HI. In Granting An Easement By Necessity, A Court Should Be Limited to Granting Only Such Relief as Requested by the Party Seeking An Easement.”

As to this issue, the trial judge said:

"We further direct that the width of the easement shall be twenty (20) feet. In addition to need of vehicles to pass to and fro, there will also be required adequate space for the installation of the necessary utilities to serve the Miller tract, a requirement that was certainly not envisioned back in 1831.”

We think the trial court properly included thé right to accommodate all "necessary utilities” in the easement over appellants’ property. That the scope and extent of the easement will vary to accommodate the reasonable needs of the dominant estate was established in the case of Tong v. Feldman, 152 Md. 398, 405, 136 A. 822 (1927), where the Court stated:

Whenever it has arisen from necessity, it would seem to be co-extensive with the reasonable needs present and future of the dominant estate for such a right or easement, and to vary with the necessity, in so far as may be consistent with the full reasonable enjoyment of the servient tenement.”

Thus, we see no error.

Decree reversed in part and affírmed in part; case remanded to the Circuit Court for Carroll County for further proceedings pursuant to this opinion.

Appellants to pay 2/3rds of costs.

Appellee Miller to pay l/3rd of costs.

      . If the physical facts, as observed by the trial judge, indicated a use by Miller, he made no such recital in his findings of fact.


author: MacDANIEL, J.,

text:
    WILLIAM LAWSON KING et al. v. THE MAYOR AND COUNCIL OF ROCKVILLE, MARYLAND WILLIAM LAWSON KING et ux. v. MONTGOMERY COUNTY, MARYLAND
    [No. 1396,
    [No. 1407,
    September Term, 1981.]
    September Term, 1981.]

      Decided July 9, 1982.

      The causes were argued before Moylan, Lowe and MacDANIEL, JJ.

      R. Edwin Brown, with whom were John R. Clapp and Brown & Sturm on the brief, for appellants.

      Paul T. Glasgow, Assistant City Attorney for Rockville, Maryland, with whom was Roger W. Titus, City Attorney for Rockville, Maryland, on the brief, for appellee Mayor and Council of Rockville. Joseph M. Mott, Assistant County Attorney for Montgomery County, with whom were Paul A. McGuckian, County Attorney for Montgomery County, and Robert G. Tobin, Jr., Deputy County Attorney for Montgomery County, on the brief, for appellee Montgomery County, Maryland.
   MacDANIEL, J.,

delivered the opinion of the Court.

Case No. 1396, September Term, 1981, William Lawson King, Cordelia E. King and William I. King, appellants, versus the Mayor and Council of Rockville, Maryland was consolidated for argument on appeal with Case No. 1407, September Term, 1981, William Lawson King and Cordelia E. King, appellants, versus Montgomery County, Maryland. For purposes of simplicity we shall hereafter refer to all appellants as appellants or Kings; Mayor and Council of Rockville, Maryland as Rockville; and Montgomery County, Maryland as Montgomery County. In both cases appellants question the constitutionality of the procedure whereby an order of limited entry under § 12-111 (a) and (b) of the Real Property Article (1981 Repl. Vol.) of the Maryland Annotated Code was obtained from the Circuit Court for Montgomery County, permitting agents of Rockville and Montgomery County to enter upon appellants’ property for purposes of making a survey and obtaining other information relating to the acquisition or future public use of that property. Appellants do not directly attack the constitutionality of that statute which permits such an entry; they attack its application to them in these cases because, they contend, the notice given was served upon their lawyer, not them personally, and they were deprived, therefore, of a right to be heard before the order to enter was signed ex parte.

Case No. 1396 (Rockville)

Rockville notified the Kings that its respective agents would be entering upon the property of the Kings in order to perform "surveys, run lines, set stakes, markers and obtain other information relating to the acquisition or future public use of the property” in accordance with R.P. § 12-111 (a), unless an objection was made. The Kings responded by stating that no survey parties, agents or other persons would be permitted to enter the property for any purpose.

On October 9, 1981, Rockville, pursuant to § 12-111 (b), obtained an order from the Circuit Court for Montgomery County granting permission to enter upon appellants’ land. Alleging a denial of constitutional due process, appellants contend that:

"The circuit court erred and deprived the appellants of due process when it signed an ex parte order permitting entry upon the appellants’ land before the petition requesting that order was served upon the appellants or before the appellants were given an opportunity to respond to the petition.”

On motion to dismiss the appeal, however, appellee points out that it has already performed its mission under the order being appealed, and that no further action can or will be taken by appellee pursuant to that order. Appellants reply that they are still subject to possible encroachments upon other sections of their land pursuant to the order. They also would have us address the constitutional issues they have raised by brief because it will aid them in a trespass suit for damages which they have filed regarding this case pursuant to R.P. § 12-111 (c).

At oral argument appellants conceded that not only had the survey and other work under the order been completed but the property has been taken and the road completed. Appellee conceded that it has no intention, under color of the order, to enter upon other parts of the land in the future. The purpose behind the issuance of the order having been achieved and completed, the question of its issuance is moot for purposes herein. We shall therefore vacate the order from which this appeal arose and grant the appellee’s motion to dismiss.

Case No. 1407 (Montgomery County)

As in the Rockville case, Montgomery County notified appellants of its intention to enter upon their land to perform surveys, etc. pursuant to § 12-111 (a) and were notified by appellants that no survey parties, agents or other persons would be permitted to enter upon the property for any purpose. On June 17, 1981, an order of court was issued granting appellee permission to enter upon appellants’ land pursuant to § 12-111 (b). This order was hand delivered to counsel for appellants on June 16, 1981, and a "discussion” concerning the order took place in the judge’s chambers that same afternoon with all counsel present.

Unlike the Rockville case, Montgomery County has taken no action under the June 17, 1981, court order, thereby presenting to this Court a viable issue stated by appellants thusly:

"Did the circuit court err and deprive the appellants of due process when it signed an ex parte order permitting entry upon the appellants’ land before the petition requesting the order was served upon the appellants or before the appellants were given an opportunity to respond to that petition?”

In essence, appellants contend the ex parte order deprived them of due process of law in contravention of the Fourteenth Amendment to the Constitution of the United States and Article 24 of the Maryland Declaration of Rights. Before beginning the analysis of the due process question, it should be noted that the Court of Appeals has previously determined that Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment of the United States Constitution have the same meaning. Barry Properties v. Fick Brothers, 277 Md. 15 (1976).

The due process question as it relates to § 12-111 has not been previously decided by the Maryland Appellate Courts. Nor have we been referred to or found any federal cases directly on this issue. We can find guidance, however, in those cases which have dealt with due process challenges to the "advance take” or "quick take” method of land acquisition as authorized by Article III, § 40A of the Constitution of Maryland. The "quick take” or "advance take” method allows the sovereign to enter on and take immediate possession of private land upon tender to the owner of an amount estimated to be the fair market value of the land and improvements taken.

The legion of cases and authorities make it clear that the Kings would have no federal constitutional right of notice in a condemnation proceeding. See North Laramie Land Co. v. Hoffman, 268 U.S. 276 (1925); Georgia v. Chattanooga, 264 U.S. 472 (1924); Joslin Co. v. Providence, 262 U.S. 668 (1923); Bragg v. Weaver, 251 U.S. 57 (1919); 1 Nichols on Eminent Domain, § 4.102[1] (3d ed. 1976).

This is so because the Supreme Court has repeatedly characterized the condemning authority’s decision on the necessity for a taking and the quantity to be appropriated as legislative and has, therefore, denied landowners the right to participate in that decision making process or to litigate on federal constitutional grounds the decision to condemn private property. See U.S. v. Welch, 327 U.S. 546 (1946); Joslin and Bragg, supra.

In Joslin, supra, the Supreme Court at 678-79 stated:

"Finally, the validity of the act is challenged as denying due process of law, on the ground that the question of the necessity for the taking of the property has not been determined by the Legislature itself, but is relegated to the city to decide ex parte, without appeal or opportunity for hearing and decision by an impartial tribunal. That the necessity and expediency of taking property for public use is a legislative and not a judicial question is not open to discussion (citation omitted). Neither is it any longer open to question in this court that the Legislature may confer upon a municipality the authority to determine such necessity for itself, (citation omitted). The question is purely political, does not require a hearing, and is not the subject of judicial inquiry.”

In a case involving an "attack” on a statute not requiring a hearing prior to a "quick take,” the Supreme Court in Rindge Co. v. County of Los Angeles, 262 U.S. 700 (1923), at 709 said:

"... this statute is not in conflict with the Fourteenth Amendment, either because it fails to provide for a hearing by the landowners before such resolution is adopted, or otherwise. The necessity for appropriating private property for public use is not a judicial question. This power resides in the Legislature, and may either be exercised by the Legislature or delegated by it to public officers. 'Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions no matter who may be charged with their decision. . . .’ (citation omitted).”

The Supreme Court cases make it clear that the decision of what property to condemn and the necessity for it are legislative determinations. Notwithstanding the abundance of authority upholding the denial of hearings in eminent domain proceedings appellants allege the proceedings here had not yet reached that stage and they were therefore entitled to a hearing.

To support their argument that they are entitled to a hearing, the Kings cite Mackie v. Town of Elkton, 265 Md. 410 (1972). In that case suit was instituted by the Mayor and Commissioners of the Town of Elkton to obtain an order of court pursuant to Art. 33A, § 11 (b) of the Md. Ann. Code directing the Mackies to permit certain civil engineers, land surveyors and their equipment to enter their property for the purpose of conducting certain geological investigations thereon. It was agreed on appeal by the parties that the proposed geological investigations entailed "core drilling” and the "digging of large, deep pits with a backhoe.” The court in Mackie issued a show cause order upon the town’s petition. After the Mackies responded to the petition, a hearing was held and the court determined that such investigations did not constitute a "taking” of property within the meaning of Article III, § 40. It was from that decision that the Mackies appealed.

The Court of Appeals determined that the proposed activity did not come within the language "to obtain information relative to acquisition or future public use of the property or for any governmental report, undertaking or improvement” as set out in the statute.

The Court at 418-19 said:

"The juxtaposition, in the 1916 statute, of the general phrase to obtain 'any needful information’ and the specific itemization of such acts as making surveys, running lines or levels, setting stakes, markers, monuments and reference points suggests, as appellant argues, the application of the maxim ejusdem generis, sometimes called Lord Tenterden’s Rule. In Smith v. Higinbothom, 187 Md. 115, 129-30 (1946), we put it this way:
'* * * A narrow construction is permissible under the established rule of ejusdem generis that where general words in a statute follow the designation of particular things or classes of subjects or persons, the general words will usually be construed to include only those things or persons of the same class or general nature as those specifically mentioned. This rule is based on the supposition that if the Legislature had intended the general words to be considered in an unrestricted sense, it would not have enumerated the particular things.’
Assuming the rule of Smith to be apposite here, then by the enumeration of specific activities the Legisla ture m ust have mean t the general language, to obtain ’any needful information,’ to embrace only the activities mentioned and activities of the same kind and character. Clearly they are innocuous and temporary effecting only minimal incidental damage and little, if any, disturbance. This seems entirely consistent with the specific mandate that ’civil engineers and surveyors * * * shall not damage or destroy any property or lands entered by them in the performance of their work.’ And it would surely seem to follow that the Legislature did not equate the placing of stakes and markers, etc., with damage or destruction. One is obliged to conclude that what the appellees contemplate doing on Mackie’s land would have been beyond the scope of the 1916 statute.” (Emphasis added.)

The Court of Appeals did not determine that all entries under then Art. 33, § 11 (b) were prohibited; it simply determined that under the facts as presented in Mackie the methods to be employed were beyond the statutory ambit and hence, the court erred in granting the petition to enter.

In the present case, Montgomery County sought to enter the Kings’ property for the purposes of "conducting surveys and other engineering and appraisal studies relative to a proposed road construction project over the land of the Kings.” The order of court specified that the agents of Montgomery County could enter the property for the purposes specified in the petition. Unlike the situation in Mackie, supra, there is no indication that the property of the Kings would be subjected to "core drilling” or "backhoe” activities.

The right to enter property pursuant to § 12-111 is a "key element” in the exercise of the power of eminent domain. Section 12-111 (a) permits the agents of a body politic having the power of eminent domain to:

"(1) Enter on any private land to make surveys, run lines or levels, or obtain information relating to the acquisition or future public use of the property or for any governmental report, undertaking, or improvements;
(2) Set stakes, markers, monuments, or other suitable landmarks or reference points where necessary; and
(3) Enter on any private land and perform any function necessary to appraise the property.”

The findings from these permitted activities is necessary for determining whether "that particular piece of property” should be "taken.”

Although § 12-111 (b) permits the governmental agency to obtain an order of court "to enter on and remain on the land to the extent necessary to carry out the purposes authorized by this section,” it is apparent that the purpose of subsection (b) is to bring a recalcitrant landowner under the contempt power of the court pursuant to § 12-111 (e).

As stated, supra, the Kings have a cause of action under § 12-111 (c) for whatever damage or destruction may occur. We think, without deciding, that if Montgomery County undertook activities beyond the scope of those anticipated under the statute, the Kings could invoke the power of the court to enjoin such actions.

It seems reasonable to suppose that the Legislature could have devised a mechanism whereby property owners could be heard prior to entry under § 12-111 if they so intended. Since the Legislature has not provided such an avenue, it is a logical interpretation of the statute that it intended the governmental agencies to enter under § 12-111 (b) without giving the property owner a means of protesting. We reiterate that this does not mean the nature of the work contemplated can exceed what is permissible under the statute.

We find for the above mentioned reasons that the Kings were not entitled to a hearing prior to the issuance of the court’s order granting entry to Montgomery County.

Case No. 1396 Order of court vacated; motion to dismiss granted.

Appellants to pay the costs.

Case No. 1407 Order of court affirmed.

Appellants to pay the costs.

      . Real Property § 12-111 (a) and (b) provide:
      "(a) Right of entry; right to set stakes. — Civil engineers, land surveyors, real estate appraisers, and their assistants acting on behalf of the State or of any of its instrumentalities or any body politic or corporate having the power of eminent domain after every real and bona fide effort to notify the owner or occupant in writing with respect to the proposed entry may:
      (1) Enter on any private land to make surveys, run lines or levels, or obtain information relating to the acquisition or future public use of the property or for any governmental report, undertaking, or improvement.
      (2) Set stakes, markers, monuments, or other suitable landmarks or reference points where necessary; and
      (3) Enter on any private land and perform any function necessary to appraise the property.
      (b) Order to permit entry. — If any civil engineer, surveyor, real estate appraisers, or any of their assistants is refused permission to enter or remain on any private land for the purposes set out in subsection (a), the person, the State, its instrumentality, or the body politic or corporate on whose behalf the person is acting may apply to a law court of the county where the property, or any part of it, is located for an order directing that the person be permitted to enter on and remain on the land to the extent necessary to carry out the purposes authorized by this section.”

      . Real Property § 12-111 (c) provides:
      "(c) Damage to or destruction of property. — If a civil engineer, surveyor, real estate appraiser, or any of their assistants enters on any private land under the authority of this section or any court order passed pursuant to it, and damages or destroys any land or personal property on it, the owner of the property has a cause of action for damages against the civil engineer, surveyor, real estate appraiser, or assistant and against the state, its instrumentality, or the body politic or corporate on whose behalf the person inflicting the damage was acting.”

      . Although Montgomery County seems to suggest that this was equivalent to a "hearing” we find this argument specious. Nothing is shown by way of docket entries or transcript concerning the "discussion.” This did not amount to a proper hearing.

      4. Contained in the joint record extract is a copy of the petition for an order permitting entry. The certificate of service makes clear that a copy of the petition was hand delivered to counsel for the Kings on June 16, 1981. The Maryland Rules of Procedure provide that service upon counsel for a party is service upon the party.

      . Now Real Property § 12-111 (b).

      . For a description of "core drilling” and the role of the backhoe in such an operation see Mackie, supra, at 411-13.

      . Real Property § 12-111 (e) states:
      "(e) Obstructing a person acting under court order. — Any person who has knowledge of an order issued pursuant to subsection (b) and who obstructs any civil engineer, surveyor, real estate appraiser, or any of their assistants acting under the authority of the order may be punished as for contempt of court.”


author: MacDaniel, J.,

text:
    HANNAH G. WILHELM, Trustee v. HARRY J. ZEPP, Guardian
    [No. 1414,
    September Term, 1981.]

      Decided July 9, 1982.

    The cause was argued before Moylan, Lowe and MacDaniel, JJ.

      James N. Phillips, with whom were Dennis G. Silverman and Phillips & Sloan on the brief, for appellant.

      Eugene A. Alexander, III, with whom were Thomas E. Rosser and Harley, Wheltle, Victor & Rosser on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

This case arose when appellee, Harry J. Zepp, guardian of the property of Maurice E. Zepp, a disabled person, filed a petition in the Circuit Court of Baltimore City requiring appellant, Hannah G. Wilhelm, trustee of a trust created by Elsie R. Zepp, the deceased wife of Maurice E. Zepp, to pay over to Harry J. Zepp, the guardian, certain funds out of the corpus of the trust estate. From an order requiring the payment of the funds appellant appeals.

In her brief appellant poses the following questions:

"1. Are the remaindermen necessary parties to a case where a decision adverse to the trustee would adversely affect their future estates?
2. Does language in a testamentary trust which gives an individual beneficiary 'the right to withdraw’ sums of money from the principal of a trust amount to the creation of a power reposed in the individual having said 'right’?
3. May a 'power’ under a Will be exercised by a Guardian if the person whose direction the trustee is authorized to follow becomes incompetent and a Guardian is appointed?
4. Is a trustee amenable to an order entered in a guardianship proceeding in which the trust has no involvement?”

Although appellant raises four questions in her brief, we have rephrased and reduced the issues raised to a single question. The issue is whether the trustee was required to pay funds from the trust to the guardian. Whether the remaindermen were necessary parties to the suit was not raised below and is not properly before us.

Background

Elsie R. Zepp, the deceased wife of Maurice E. Zepp, created by will a trust for the benefit of Maurice. The will in pertinent part provides:

'TTEM III: I give and bequeath unto my spouse, Maurice E. Zepp, if living at the time of my death, all of my personal effects, househould furnishings and automobiles together with all policies of insurance upon such property.
ITEM IV: If my said spouse survives me, I give, devise and bequeath the rest, residue and remainder of my estate, of every kind and description, in trust to my Trustee or Trustees, (hereinafter named and referred to in the singular and neuter) for and to be held, administered and disposed of as follows:
My Trustee shall pay the entire net income therefrom to my said spouse, for life in at least quarter-annual installments.
I hereby authorize my Trustee, in its sole and absolute discretion, to make such payments from the principal of the trust to or for the benefit of my said spouse, as my Trustee may deem proper and desirable, for his support, maintenance, education, general welfare and care.
My said spouse shall have the right to withdraw from the principal of the trust in each calendar year such amounts as my spouse desires, but such amounts shall not exceed annually the greater of the sum of Five thousand dollars ($5,000.00) or Five percent (5%) of the value of the trust principal as of December 31st of each trust year. The annual right of withdrawal shall be non-cumulative.
Upon the death of my said spouse, the trust shall terminate and I direct that the trust as then constituted, including any accumulated, accrued and/or undistributed net income, shall be paid over and distributed in equal shares to the following persons, in each event if they survive me:
One equal share unto my stepmother, Lois A. Ross;
One equal share unto my cousin, Ruth Roberson;
One equal share unto my friend, Hannah G. Wilhelm; and
One equal share unto my friend, Eleanora E. Sellers.”

In the first year after the trust was created, the trustee paid to the guardian the sum of $5,000. Subsequently, when the demand was next made for the sum of $5,000, the trustee refused to make payment and suit was instituted.

A hearing was held on June 8, 1981, before a Master in Chancery upon the petition filed by appellee. Subsequently, on July 2, 1981, the master filed his report recommending that appellee be permitted to exercise the option in Item IV of the will.

An order of court (Greenfeld, J.) was filed on July 2, 1981, which adopted the master’s recommendations and ordered: 1) that appellee’s petition be granted, and 2) that the trustee pay the sum of $5,000 or 5% of the corpus in accordance with Item IV of the will for each year the option is elected by the guardian.

Appellant filed a motion for a rehearing and revision of the decree which was heard on September 3, 1981 (Kaplan, J.), and an order was filed that day affirming both the report and recommendation of the master and the earlier order of court.

Rights and Powers of Guardian

Appellant maintains that the appellee does not have the right to demand payment in accordance with Item IV of the will. In her brief appellant states, "The authority or power given to the husband (spouse) in this case is personal to him and may not be exercised by a Guardian.”

Neither party to this litigation has referred us to any Maryland case on point; nor has our research proved fruitful. Perhaps the reason there are no cases in Maryland dealing with this issue rests with the clear and concise language found in the Estates and Trusts Article of the Maryland Code which was not addressed by either brief, but formed the foundation of the chancellor’s determination. It is upon that statutory authority of the following code sections that we hold appellee has the right to exercise the option given to Maurice E. Zepp.

Section 13-206 (c) vests in the guardian of the property of a disabled person title to all property held at the time of the appointment or acquired later and directs the guardian to "utilize powers conferred by this subtitle to perform the services, exercise his discretion, and discharge his duties for the best interest of the minor or disabled person or his dependents.”

Section 13-213 (Powers) provides:

"All the provisions of § 15-102 of this article with respect to the powers of a fiduciary and the manner of exercise of those powers are applicable to a guardian.”

Section 15-102 (Powers of a fiduciary) is the most important section in regard to the issue involved in this case. Section 15-102 (a) states:

"(a) Defínition. — As used in this section, 15-102, 'fiduciary’ means only a trustee acting under a deed, will, declaration of trust or other instrument in the nature of a trust or appointed by a court, a committee or guardian of the property of a minor or a disabled person, whether the trust or estate be created or the appointment made prior or subsequent to the effective date of this subtitle. 'Fiduciary’ does not include a receiver, trustee of a trust for the benefit of creditors, executor, administrator, or personal representative.”

Section (w) provides:

"(w) Exercise by guardian of inter vivos powers. — A guardian may exercise any inter vivos power which the minor or disabled person could have exercised under an instrument, including the power to sell, mortgage or lease.”

Applying the provisions of the code to the factual situation in the present case, the result is, we find, crystalline. Appellee, by statute, has all of the powers of a fiduciary as listed in Estates and Trusts § 15-102 and in particular § 15-102 (w) and may exercise any "inter vivos power which the disabled person could have exercised under an instrument.” In the case subjudice, Maurice E. Zepp could have exercised the $5,000/5% option (which is an inter vivos power) under the will (which is an instrument).

Appellant, apparently unaware of § 15-102 (w), theorized that the intent of the testatrix ascertained from the "four corners” of the will clearly demonstrates the option in Item IV to be personal to testatrix’s husband and not exercisable by his guardian. We disagree. The testatrix could have used language in the will denying the right given the guardian by § 15-102 (w), but failed to do so in this case. The language of that part of Item IV germane to the issue reads:

"My said spouse shall have the right to withdraw from the principal of the trust in each calendar year such amounts as my spouse desires .. . Five thousand dollars ($5,000.00) or Five percent (5%)

This language is clear and unambiguous. Maurice E. Zepp had the absolute and unconditional right to exercise the $5,000/5% option any time he so desired. This is precisely the "inter vivos power” contemplated by § 15-102 (w). We find no words in the option to deny to a guardian the right to exercise this inter vivos power which the disabled person could have exercised under the will. Nor do we find any conflict between this option in Item IV and any other provision of the will.

The cardinal principle in construing a will is to carry out the intention of the testatrix, as adduced from the "four corners” of the will. Equitable Trust Co. v. Smith, 26 Md. App. 204 (1975). The "four corners” of this will do not reveal any conflicts or ambiguities. There is simply nothing here to indicate any intent to limit the $5,000/5% option to the personal use of the beneficiary only or to foreclose the guardian of the beneficiary who became disabled from exercising that right for the disabled person as granted by § 15-102 (w).

We find no error and shall affirm.

Judgment affirmed.

Appellant to pay the costs.

      . In cases where the interest of the trustee and remaindermen are the same the trustee acts on behalf of the remaindermen and hence they are not necessarily "necessary parties.” See The First National Bank of Maryland, et al. v. Department of Health and Mental Hygiene, et ah, 284 Md. 720 (1979).

      . Maurice E. Zepp apparently became disabled shortly after his wife’s death.


author: Mason, J.,

text:
    IN RE: WILLIAM G.
    [No. 1418,
    September Term, 1981.1

      Decided July 12, 1982.

    The cause was submitted on briefs to Moylan, Mason and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Gary W. Christopher, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Adriana V. Klich, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Michael

      Gam, Assistant State’s Attorney for Baltimore City, for appellee.
   Mason, J.,

delivered the opinion of the Court.

In this case we are asked to decide whether the Maryland Cruelty to Animals Statute is unconstitutionally vague. Article 27, sections 59 and 62 of the Maryland Code (1982 Repl. Vol.) in relevant part provide:

Section 59.
Any person who (1) overdrives, overloads, deprives of necessary sustenance, tortures, torments, cruelly beats, mutilates or cruelly kills; or (2) causes, procures or authorizes these acts; or (3) having the charge or custody of an animal, either as owner or otherwise, inflicts unnecessary suffering or pain upon the animal, or unnecessarily fails to provide the animal with nutritious food in sufficient quantity, necessary veterinary care, proper drink, air, space, shelter or protection from the weather, is guilty of a misdemeanor and shall be punishable by a fine not exceeding $1,000 or by imprisonment not to exceed 90 days, or both.
Section 62.
The words 'torture, 'torment’, and 'cruelty’ mean every act, omission, or neglect whereby unnecessary or unjustifiable physical pain or suffering is caused or permitted, and the word 'animal’ means every living creature except man.

Appellant, William G., was found delinquent by the Juvenile Judge of the Circuit Court of Baltimore City — Division for Juvenile Causes for violating the cruelty to animals statute and was placed in a residential treatment center.

The evidence adduced at the adjudicatory hearing disclosed that on 12 March 1981 a male dog belonging to appellant attempted to mate with a female dog owned by a neighbor. When the efforts of the male dog were apparently repulsed by the female dog, appellant kicked the female dog and threatened to kill her. Later, appellant poured turpentine on the female dog and lit the turpentine with a match causing the dog to catch fire. An officer called to the scene observed the dog in pain and "going around in circles.” Because of the burning, the dog had to be destroyed.

Appellant argues that the cruelty to animals statute is so vague and indefinite as to violate the due process clause of the Fourteenth Amendment of the Federal Constitution. That "its terms are so vague that a person of ordinary intelligence would be forced to guess as to the scope of the proscribed activity, and it fails to provide even the barest standard for enforcement.” He asserts that the statute "on its face would appear to proscribe such common activities as the swatting of flies, the steaming of live crabs, using live minnows to bait hooks or shucking fresh oysters.”

It is a basic principle of due process that a criminal statute must state with reasonable clarity the acts it proscribes. In Connally v. General Construction Co., 269 U.S. 385, 391 (1926) the Supreme Court observed:

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

Accord Bowers v. State, 283 Md. 115 (1978), and In re: Leroy T., 285 Md. 508 (1979); see also Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) where the standards for evaluating vagueness were enunciated.

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. (Footnotes omitted).

Appellant here challenges the constitutionality of the statute principally on grounds of "facial vagueness.” In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 102 S. Ct. 888 (1982), the Supreme Court held that when a statute is challenged on facial vagueness grounds and no constitutionally protected conduct is implicated such as the right' of free speech or association under the First Amendment, the challenge can only succeed if it is demonstrated that the law is impermissibly vague in all of its applications. Moreover, the person challenging the statute "who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” In other words, "one to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756 (1974). Likewise, in Bowers v. State, supra, the Court of Appeals commented at 283 Md. 122:

As a general rule, the constitutionality of a statutory provision under attack on void-for-vagueness grounds must be determined strictly on the basis of the statute’s application to the particular facts at hand. Thus, it will usually be immaterial that the statute is of questionable applicability in foreseeable marginal situations, if a contested provision clearly applies to the conduct of the defendant in a specific case. (Citations omitted).

Thus, the issue is not whether the hypothetical cases alluded to by appellant are covered by the statute, but whether the conduct of appellant is proscribed by the statute. Although cruelty to animals apparently was not a crime at common law, today most jurisdictions have statutes making the mistreatment of animals a punishable offense. See 4 Am. Jur. 2d, Section 27, Cruelty to Animals, and annotation: Cruelty to Animals, 82 A.L.R.2d 797, et seq. The question as to what specific act comes within the scope of the law depends on the language of the statute. Section 59 provides, among other things, that any person who tortures, torments, cruelly beats, mutilates or cruelly kills an animal is guilty of a misdemeanor. Section 62 defines the words "torture”, "torment” and "cruelty” to mean every act, whereby unnecessary or unjustifiable physical pain or suffering is caused or permitted, and the word "animal” means every living creature except man. Applying appellant’s conduct to the statute, we do not think that any person of ordinary intelligence would differ in concluding that a dog is an animal under the statute and that the burning of a dog to the extent that he had to be destroyed constitutes torture, torment and cruelty as defined by the statute.

Therefore, because appellant’s conduct falls within the prohibitions of the Cruelty to Animals statute, he has no standing to assert that the statute may be vague, indefinite or uncertain as applied to others in situations not before us.

For the reasons herein stated, we affirm.

Judgment affirmed.

Costs to be paid by appellant.


author: Morton, J.,

text:
    GRACE KIRTZ v. ANNA M. KIRTZ
    [No. 1461,
    September Term, 1981.]

      Decided July 12, 1982.

    The cause was argued before Morton, Mason and Bishop, JJ.

      Lee Gordon, with whom were Gordon & Goodman, P.A. on the brief, for appellant.

      Michael J. Baxter, with whom were John H. Bolgiano and Smith, Somerville & Case on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant,. Grace Kirtz, is the mother of Anna M. Kirtz, the appellee. The mother brought suit in the Superior Court of Baltimore City against the daughter to recover damages for injuries she sustained in an automobile accident. At the time of the accident the mother was a passenger in a car being driven by the daughter. A demurrer was filed on behalf of the daughter on the ground that the suit could not be maintained by the mother because at the time of the accident the daughter was a minor.

In sustaining the appellee’s demurrer, Judge Joseph H. H. Kaplan made the following findings which are not disputed by the parties:

"Based upon the agreement of the parties at the hearing, the Court makes the following findings of fact:
1. At the time of the accident, March 29, 1979, Plaintiff, Grace Kirtz, was a passenger in an automobile being driven by Defendant, Anna M. Kirtz.
2. Defendant, Anna M. Kirtz, was born on December 3, 1961.
3. At the time of the accident, Defendant, Anna M. Kirtz, was seventeen years of age.
4. On June 10, 1981, the date the instant suit was filed, Defendant, Anna M. Kirtz, was nineteen years of age.
5. Plaintiff, Grace Kirtz, is the mother of Defendant, Anna M. Kirtz.”

In this appeal the mother phrases the single issue:

"Did the lower court commit reversible error in granting the demurrer because, under the particular facts and circumstances of this motor-tort case, the appellant-mother should be allowed to maintain a cause of action against her subsequently emancipated appellee-daughter?”

It is conceded on behalf of the mother that in Schneider v. Schneider, 160 Md. 18 (1930), the Court of Appeals denied the right of a mother to sue her minor son for injuries arising out of an automobile accident, stressing "the importance of maintaining the family relation free for other reasons from the antagonisms which such suits imply.” 160 Md. 23. Counsel for the mother in this appeal points out that the principle of Schneider was enunciated more than half a century ago and urges us to abandon that principle or, at a minimum, to modify it by permitting the mother in the case at bar to sue her daughter. Counsel asserts:

"Because this case presents a narrow factual base, unencumbered by other more controversial family immunity considerations, this Court has a golden opportunity to at last formulate a rule of reason in what has formerly been a judicial thicket.”

More than ten years ago this Court was importuned in Latz v. Latz a/k/a Schafer, 10 Md. App. 720, 725 (1971), to "overrule Schneider or depart from its rule.” This Court announced: "We are not persuaded to do so.” Even if this Court had the authority, we are still not persuaded to depart from the rule of Schneider.

It is argued on behalf of the mother that "since Maryland law requires insurance coverage for said vehicle so as to protect innocent victims in case of tortious conduct of the teenage minor, and since nowhere is there an explicit statutory exclusion for the parent-passenger, it would offend common sense and promote the very situation the legislature wanted to avoid by so penalizing the innocent victim of a motor tort, such as Mrs. Kirtz.” This same argument was advanced in Latz, and we responded:

"We do not think that the fact that appellee may have been protected by liability insurance affects the answer to the question. There is no doubt of the attitude of the Court of Appeals on the effect of liability insurance for it said in Schneider [v. Schneider, 160 Md. 18 (1930)] at 24:
'Reference has been made in argument to policies or contracts held by one or both of the sons for indemnifying them against loss from recovery of judgment against them, but there is no reference in the record to such policies. They would not be relevant. The suit is not one on a policy, and the possession of a policy by the defendants could not affect the disposition of this case.”

10 Md. App. 729-730. (Footnote omitted.)

As we indicated in Latz, and as we announce today, if the rule of Schneider is to be changed, the Court of Appeals or the Maryland General Assembly will have to do it.

Judgment affirmed; costs to be paid by appellant.