text:
    THE CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLAND v. MAURICE C. PINCOFFS, JR.
    [No. 173,
    September Term, 1974.]

      Decided November 19, 1974.

      The cause was argued before Orth, C. J., and Powers and Moore, JJ.

      Robert B. Barnhouse, with whom were Edward S. Diggs, Jr., J. William Sarver, Warner F. Bruildage, Jr., and Piper & Marbury on the brief, for appellant.

      Man rice C. Pincoffs, Jr., for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On 25 February 1974 Maurice C. Pincoffs, Jr. (Pincoffs) filed in the Superior Court of Baltimore City a “PETITION FOR DECLARATORY JUDGMENT TO DECLARE TARIFF NULL AND VOID AND FOR INJUNCTION ANCILLARY TO RELIEF AT LAW”, naming as defendants the Chesapeake & Potomac Telephone Company of Maryland (Telephone Company) and the members of th,e Public Service Commission of the State of Maryland (the Commission). The “Statement of the Facts” contained in the Telephone Company’s brief summarized the allegations of the Petition and gave the subsequent history of the matter. The “Statement”, with the exception of one sentence, was accepted by Pincoffs, and we quote it, deleting the excepted sentence: “The Petition for Declaratory Judgment states that Pincoffs, a subscriber to service of the Telephone Company at his law office, purchased in July, 1973, a foreign-manufactured apparatus which he had electrically connected to the Telephone Company’s system for the purpose of automatically answering his telephone and recording messages left by the caller. This apparatus has the further capability of recording two-way conversations on the telephone line and of serving as an office dictating machine. At the time the apparatus was purchased and electrically connected to the Telephone Company’s network, there existed Tariff No. 205 filed with the Maryland Public Service Commission. This tariff prohibits the direct electrical connection to the telephone network of a customer-provided telephone answering apparatus without the interposition between it and the telephone lines of an ‘interface’ or ‘recorder coupler’ provided by the Telephone Company, for which the tariff requires an installation charge and a monthly rental charge .... In addition, if telephone conversations are to be recorded, a ‘recorder connector’ must also be attached in order to emit the required ‘beep’ tone. In early February 1974, the Telephone Company contacted Pincoffs about his delinquent telephone bill and learned that he had a recording apparatus electrically connected to the telephone network. When advised that it would be necessary for the Telephone Company to install the required recorder coupler, Pincoffs refused to have the unit installed. The Telephone Company, in compliance with the tariff, then sent a written request to Pincoffs that he remove his telephone answering and recording apparatus from the lines and that he advise the Telephone Company within ten days that this had been accomplished. Pincoffs did not comply with the tariff nor did he file a complaint with the Maryland Public Service Commission; rather, he filed the Petition for Declaratory Judgment and obtained an ex parte injunction. That injunction prohibited the Telephone Company from enforcing the tariff requirement that either the apparatus be disconnected or the service be terminated. The later injunction pendente lite, from which this appeal is taken, contained substantially the same provisions.” Attached to the Petition as exhibits were the Telephone Company’s Tariff No. 205 as revised and effective in accordance with Order No. 60472 of the Commission dated 19 October 1973, a copy of that Order, and the letter of 8 February 1974 from the Telephone Company’s Manager — Community Relations to Pincoffs requesting the removal of the answering device.

On 5 March 1974 the Telephone Company filed a Motion Raising Preliminary Objections on the ground that the court lacked jurisdiction over the subject matter and that Pincoffs had not pursued his available administrative remedies; on 12 March the motion was “overruled”. Petition for interlocutory injunction pendente lite was filed on 7 March and granted the same day. This appeal, noted 28 March, is from the order granting the interlocutory injunction pendente lite.

The interlocutory injunction prohibited the Telephone Company during the pendency of the litigation from terminating, suspending or discontinuing the telephone service of Pincoffs for non-compliance with Tariff No. 205, from removing or disconnecting the answering machine, or requiring Pincoffs to remove it and from enforcing or attempting to enforce upon Pincoffs the provisions of the tariff in any other way. The order provided that, in accord with Maryland Rule BB75 b 1, Pincoffs need not furnish the injunction bond required by Rule BB75 a.

The Telephone Company and Pincoffs agree that the merits of the matter presented by the petition for a declaratory judgment are not involved in this appeal. The question is whether the court below had jurisdiction to grant the injunction.

I

The jurisdiction and powers of the Public Service Commission extend to the Telephone Company. Code, Art. 78, §§ 1, 2 (o), 2 (z), 23. See Code, Art. 23, subtitle Telegraph and Telephone Companies, §§ 317-327. “The Commission shall have the power to make such reasonable rules and regulations as it deems necessary to carry out the provisions of this article and any other law relating to the Commission.” Code, Art. 78, § 64. See Public Service Commission of Maryland v. Hahn Transportation, Inc., et al., 253 Md. 571. It is the Telephone Company, however, as a public service company, which has the affirmative duty to charge just and reasonable rates for the utility services rendered by it, Code, Art. 78, § 28 (d) and to file with the Commission a tariff schedule of its rates and charges, § 28 (a). Section 28 (a) further provides: “Copies of such schedules shall be plainly printed, shall be open to public inspection, and shall be posted in such manner as to be readily accessible to and conveniently inspected by the public, as may be ordered by the Commission.” See Spintman v. C. & P. Tel. Co., 254 Md. 423. A public service company must “[f]urnish instrumentalities, utilities, services, and facilities which are safe, adequate, just and reasonable.” § 28 (c). It may establish a new rate or change a rate upon 30 days notice to the Commission and upon the required publication, Code, Art. 78, § 27 (c), but the Commission may suspend any new rate proposed. “Unless so suspended, any new rate or change in rate proposed by the public service company, shall, subject to § 27 (c) of this article, go into effect upon the date specified in the application.” Code, Art. 78, § 70 (a). Thus the Commission has the power, legislative in character, to regulate rates of public service companies, determining whether the rates they charge are just and reasonable. Code, Art. 78, § 68; Spintman v. C. & P. Tel. Co., supra, at 427-428. And the Commission is charged with the duty of supervising and regulating all public service companies subject to its jurisdiction, and of enforcing compliance by such companies with all the requirements of law, including requirements with respect to manner of operation, rates, and service. Code, Art. 78, § 56. So it may fulfill this duty and its general duties and exercise its powers, the Legislature provided that proceedings be conducted before the Commission and designated the procedures to be followed. Code, Art. 78, §§ 76-88. The Commission is authorized to receive complaints from any person, § 77 (a) or proceed on its own motion, § 77 (c) and to conduct investigations, § 77 (b) and hearings, §§79 and 82, serve process, § 78, issue subpoenas, § 80, and compel testimony on the production of evidence, § 81. In all hearings it shall prepare an official record, which shall include testimony and exhibits, § 83. The proceedings are governed by the rules of the Commission. It is not bound by the technical rules of evidence or procedure of courts of law or equity, § 76. It shall take final action by order, § 77 (d), which in any contested action shall be in writing and state concisely the grounds for the Commission’s conclusions, § 85. There are provisions for judicial review at the circuit court level, §§ 89-97, and further review at the appellate level, § 98. We spell all this out because it is pertinent to the determination of this appeal.

II

It is the position of Pincoffs that the court below had authority to issue the injunction pendente lite because it had jurisdiction to entertain the petition for a declaratory judgment presented by him. He claims the court was vested with this jurisdiction by Code, Art. 78, § 89:

“The validity of any rule or regulation of the Commission may be determined upon petition for a declaratory judgment addressed to the Superior Court of Baltimore City or to the circuit court for the county where the petitioner has its principal office in this State whenever it appears that the rule or regulation, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the petitioner. The Commission shall be made a party to the proceeding. The declaratory judgment may be rendered whether or not the petitioner has first requested the Commission to pass upon the validity of the rule or regulation in question.”

The Telephone Company, on the other hand, asks what rule or regulation of the Commission is involved to invoke the provisions of § 89. It is a question that Pincoffs does not satisfactorily answer.

It is patent that Pincoffs is attacking portions of a Telephone Company tariff schedule. He asserts in paragraph 16 of the Petition for a declaratory judgment:

“That your Petitioner is informed, and believes, and therefore alleges, that the said Tariff 205, at least to the extent that it authorizes interface/recorder-eoupler fees and compels the installation thereof for the use of customer-owned telephone-answering and message-recording devices, is absolutely void and of no effect, and a nullity, as tending to perpetuate in defendant C & P a monopoly in the sale or lease of such devices, its own models of which said Defendant offers to its customers for an installation and monthly rental fee as aforesaid, in violation of the Sherman Act, § § 1 and 2,15 U.S.C.A. §§ 1 and 2, of § 3 of the Clayton Act, 15 U.S.C.A. § 14, [sic] and of Article 41 of the Bill of Rights of the Constitution of Maryland.”

The provisions aggrieving Pincoffs are set out in § § 1 and 5 of the Telephone Company’s Tariff P.S.C. Md. No. 205, a certified copy of which was appended to the Petition for a declaratory judgment. It is clear that a tariff schedule is not a “rule or regulation of the Commission” within the contemplation of Art. 78, § 89. It is not an act of the Commission but an act of the Company in compliance with the affirmative duties imposed by law. That the Commission may have allowed the schedule to remain as submitted or revised it under its power to determine whether it was just and reasonable, did not make it a rule or regulation of the Commission. It is correct that the Legislature gave the Commission authority to regulate rates, but it precisely defined what “rates” encompassed in § 2 (q) of Art. 78:

“ ‘Rates’ includes tolls, fares, tariffs, fees, prices and any other charges for public utility services, whether individual or joint, of a public service company; and any schedule, regulation, classification or practice of any public service company affecting the amount of such charge or the nature and value of the services rendered therefor.” (emphasis added)

As we pointed out, the Legislature established a comprehensive procedure by which a person having a complaint concerning the “rates” of a public service company may seek redress. The means open to Pincoffs for the grievance he felt he suffered was not through declaratory action under § 89 but through the procedure established for hearings before the Commission. Code, Art. 78, subtitle “Procedure Before Commission”, §§ 76-88. As we have indicated, if he were unhappy with the conclusion of the Commission at such proceedings, judicial review was then available to him, § 90, first in an equity court in Baltimore City, § 91, and further by appeal to the Court of Appeals of Maryland until 1 January 1975 and thereafter to the Court of Special Appeals of Maryland. Code, Art. 78, § 98; Courts Art. § 12-308.

We believe that not only the legislative language but the legislative scheme supports our view that declaratory judgment proceedings under § 89 are limited to Commission rules and regulations. Under the subtitle “Judicial Review”, § 89 speaks only of “any rule or regulation of the Commission.” Section 90 refers to “an order of the Commission”. The remaining sections under the subtitle which relate to judicial review are couched in terms of “any rule, regulation or order of the Commission” and are generally applicable to review under either § 89 or § 90.

We conclude the court below was without jurisdiction under Code, Art. 78, § 89 to entertain the Petition for declaratory judgment filed by Pincoffs.

Ill

Pincoffs. suggests that even if his action is not properly brought under Art. 78, § 89, it would lie under the Uniform Declaratory Judgments Act. Courts Art. §§ 3-401 to 3-415, inclusive. Although the legislative mandate is that the Act “... be liberally construed and administered”, § 3-402, and although the enumeration of matters in § § 3-406, 3-407, and 3-408 subject to the Act explicitly do not limit or restrict the general powers bestowed to declare rights, status, and other legal relations, § 3-403, the provisions of § 3-409 (b) defeat the suggestion. It reads: “Special form of remedy provided by statute — If a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle.” We have found that Art. 78, §§ 76-88 provide a special form of remedy — a hearing before the Commission — for the relief Pincoffs sought. He was bound to follow this remedy. See Friendship Heights v. Funger, 265 Md. 339; Hartman v. Prince George’s County, 264 Md. 320; Gingell v. Board of County Comm’s 249 Md. 374; Tanner v. McKeldin, 202 Md. 569. “The rule that when an appeal from the action of an administrative body is provided by statute, such remedy is exclusive, is older than declaratory judgment and has a wider application.” Commissioners of Cambridge v. Eastern Shore Pub. Ser. Co., 192 Md. 333, 337. That case observed that the rule “... is predicated upon the undesirability of by-passing administrative action, particularly where such action is within the expert knowledge of the administrative tribunal.” Ibid. It pointed out that the cases where the rule has not been applied involved property or constitutional rights which are essentially judicial and not administrative questions. We conclude that the action brought by Pincoffs was not authorized by the Uniform Declaratory Judgments Act.

IV

We hold that the court below had no jurisdiction to entertain the Petition for declaratory judgment filed by Pincoffs. Therefore, it had no authority to issue the interlocutory injunction pendente lite. The order of 7 March 1974 granting an interlocutory injunction pendente lite is vacated. The order of 12 March 1974 denying the Telephone Company’s motion to dismiss the action is reversed. Maryland Rule 1087. Judgment is entered dismissing the action. Rule 1075. Pincoffs was entitled to have a judicial review of his complaint but not under the course he has taken. He should have first exhausted the special remedy provided by the Legislature. “Where an administrative remedy is available, such as a hearing before the Public Service Commission, to determine the reasonableness of a rate [which includes any schedule, regulation, classification or practice of any public service company affecting the nature of the services rendered], prior resort to that remedy is a necessary prerequisite to a standing before the courts.” Spintman v. C. & P. Tel. Co., supra, at 428.

The Telephone Company filed two briefs, one on 3 June 1974 and the other on 5 June 1974. The first filed contained an appendix not authorized by the Rules applicable to appeals to this Court. Compare Rule 828 a. In taxing the costs the Clerk shall not include the cost of printing the Telephone Company’s brief filed 3 June 1974. Rules 1081 and 1082.

Order of 7 March 197k granting interlocutory injunction pendente lite vacated; order of 12 March 197k denying appellant’s motion to dismiss the action reversed; judgment entered dismissing the action; costs to be paid by appellee.

      . On 27 March 1974 the Telephone Company demurred to the Petition for Declaratory Judgment. On 8 April Pincoffs filed in the lower court (1) a motion to dismiss the appeal, (2) a motion to strike the demurrer, and (3) a partial answer to the demurrer and a memorandum of points and authorities. The motion to dismiss the appeal was also filed in the Court of Special Appeals of Maryland. It claimed that the appeal was premature because the Telephone Company had not filed an answer to the Petition for Declaratory Judgment. We denied the motion by our order of 26 April. See Courts Art. § 12-303; Stockham v. Knollenberg, 133 Md. 337.

      . The Public Service Commission is excepted from the provisions of the Administrative Procedure Act. Code. Art. 41, § 244 (a).

      . ‘‘ 'Just and reasonable rates’ means rates which are not in violation of any of the provisions of this article, and which will result in an operating income to the public service company, except carriers of inflammables, yielding, after reasonable deduction for depreciation and other necessary and proper expenses and reserves, a reasonable return upon the fair value of the company’s property used and useful in rendering service to the public.” Code, Art. 78, § 69 (a).

      . Art. 41 of the Declaration of Rights of the Constitution of Maryland declares “That monopolies are odius, contrary to the spirit of a free government and the principles of commerce, and ought not to be suffered.” The activities of a public service company are exempted from the provisions of the Maryland Anti-Trust Act. Code, Art. 83, § 39 (3). The court below was without jurisdiction to entertain claims of violations of the federal Sherman Act and Clayton Act. See Grempler v. Multiple Listing Bureau, 258 Md. 419.

      . Commissioners of Cambridge v. Eastern Shore Pub. Ser. Co., supra, held that the right to complain to the Public Service Commission was not such a statutory remedy as to preclude the determination whether the Eastern Shore Public Service Company was without a franchise to serve the citizens of Cambridge with electric power. The rationale of the holding was that the power to grant a franchise was a legislative function, the validity or extent of charter powers or franchises was a judicial question, and that if the complaint were to be lodged with the Commission there could be no effective relief. 192 Md. at 340-341. Such is not the case here.
      In Pressman v. State Tax Commission, 204 Md. 78, declaratory judgment proceedings were held to lie with respect to the constitutionality of a statute reducing the franchise tax on savings banks even though there was a statutory remedy for testing action taken by the State Tax Commission. The claim was that the title of the statute attacked was not sufficiently descriptive of the body. Clearly there, unlike here, there would be no by-passing of the exercise of an administrative body of its function as an expert.
      We think that Schneider v. Pullen, 198 Md. 64, Miller Bros. Co. v. State, 201 Md. 535, and other cases cited by Pincoffs are equally inapposite.
      Provisions comparable to those of Courts Art. § 3-409 (b) concerning the effect of a special form of remedy provided by statute first appeared in the Declaratory Judgments Act upon its repeal and reenactment by Acts 1945, ch. 724, codified as Art. 31A, § 6.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    JOHN F. CONNOLLEY, JR. v. HALE HARRISON et al.
    [No. 178,
    September Term, 1974.]

      Decided November 20, 1974.

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

      Benjamin Lipsitz, with whom -was Eleanor Jean Lipsitz on the brief, for appellant.

      Karl G. Feissner, with whom were Theodore R.

      Eschenburg, Thomas P. Smith and Feissner, Kaplan, Smith, Joseph, Greenwald &Laake on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

John F. Connolley, Jr., appellant, the contract purchaser of a parcel of land in Ocean City, Maryland, filed a bill of complaint in the Circuit Court for Worcester County to compel specific performance. The contract, dated May 15, 1971, was entered into between him and the Harrisons, the sellers. Connolley also asked the court for a declaratory judgment declaring that a deed of trust executed between the Harrisons’ grantor (appellee-Royer) and the Harrisons created an invalid restraint on alienation. The trial judge, Judge Daniel T. Prettyman, denied specific performance and found that no invalid restraint on alienation existed in the deed of trust from the appellee-Royer to appellees-Harrisons.

FACTS

On August 8, 1970, Eva Lee Royer, Hale Harrison, Helen Harrison Faucette and John Henry Harrison (all appellees in the instant case) entered into an agreement whereby Royer agreed to sell certain property in Ocean City, Maryland, to the Harrisons in fee simple. The purchase price was $100,000.00. The Harrisons made a down payment of $20,000.00 and on November 12,1970, executed an $80,000.00 promissory note, with interest at 7% per year, and a deed of trust on the land as security for the balance of the total purchase price. All three of these documents were recorded in the land records of Worcester County. Each contained or incorporated documents that did contain the following clause from the sales contract:

“The Buyer shall have the right to prepay the aforesaid Note after two (2) years from the date of said Note, but as a condition thereof, the Buyer and Guarantors shall pay to the Seller all interest which would be due on said Note had it run its full term. The Buyer shall have the right after two (2) years from the date of said Note to sell the subject property without the consent of the Seller. Any subsequent purchaser, however, shall be bound by all the terms of this contract so long as the Seller’s Note remains unpaid in any part. The Buyer’s purchaser or purchasers may then assume said Note as additional obligors and take the property subject to said Deed of Trust and payment of said Note shall not be accelerated for reason of said sale.”

On May 15, 1971, the Harrisons and the appellant entered into a conditional sales contract whereby the Harrisons agreed to sell to the appellant a portion of the aforementioned property. The total purchase price was $110,000.00. The viability of this contract was made subject to three distinct conditions being met, but we are concerned with only one:

“This contract is subject to the sellers obtaining a satisfactory release and settlement of the present outstanding mortgage against the property.”

Settlement was to take place on or before August 13, 1971. Just prior to that date the Harrisons’ agent, George Purnell, informed appellant that they would not go through with settlement because they could not “get out of the mortgage.” The Harrisons failed to appear at the time and place designated for settlement. Connolley attended, with funds sufficient to consummate the transaction and was ready, willing and able to settle.

RESTRAINT ON ALIENATION

Appellant contends that the trial court erred in finding that the above quoted language in the deed of trust from Royer to the Harrisons did not create an invalid restraint on alienation. Assuming, without deciding, that the sentence, “The Buyer shall have the right after two (2) years from the date of said Note to sell the subject property without the consent of the Seller” creates an invalid restraint on alienation, it can be severed from the instrument without destroying the instrument’s overall validity or the validity of any other provisions if it is not so interwoven as to be logically inseparable from the rest. Northwest Real Estate Co. v. Serio, 156 Md. 229, 232, 144 A. 245 (1929); Jones et al. v. Northwest Real Estate Co., 149 Md. 271, 279, 131 A. 446 (1925). See also Baldwin v. Grymes, 232 Md. 470, 473, 194 A. 2d 285 (1963); Nicholson v. Ellis, 110 Md. 322, 333, 73 A. 17 (1909). In the instant case we find that the clause prohibiting for two years the sale of the property by the Harrisons without Royer’s approval is severable from the clause which prevents prepayment or anticipation of the note for two years and from the clause which accelerates the amount due under the note if the note is prepaid. The latter two clauses, unlike the first, are not intended to prevent the sale of the property. They are intended to protect the grantor’s investment, to insure her a maximum return and perhaps to take advantage of favorable income tax treatment.

Severing this language narrows our inquiry to a determination of the validity of the first sentence of the above quoted language which in effect prevents the Harrisons from prepaying or “anticipating” the deed of trust for the first two years of its existence and which provides for acceleration of the amount due if prepayment is eventually made.

In Pierson v. Pyles, 234 Md. 119, 197 A. 2d 890 (1964), the Court of Appeals upheld a clause in a land sale contract which prevented anticipation of monthly payments against a claim that the clause imposed a restraint on alienation. In Pierson, the sale contract provided for a total purchase price of $15,000.00, payable $65.00 monthly with 4% interest imposed on the unpaid balance. The contract specifically denied the contract purchasers the right to anticipate the monthly payments. Under the contract the purchasers were also required to pay all taxes and insurance premiums. These payments were to be paid by the sellers from the monthly installments. The contract further provided that the purchasers were not to receive a deed for the property unless and until they reduced the principal by $5,000.00 by means of the $65.00 monthly payments. If and when the principal was so reduced, the sellers were required to take back a mortgage on the remainder of the debt. At the time of the contract, June 13, 1946, assuming the taxes had remained constant, it would have taken the purchasers 273A years to reduce the principal by the required $5,000.00 and thus obtain a deed. Taxes, however, did not remain constant. They rose substantially after 1946 with the result that in 1962 when the purchasers instituted suit for declaratory relief, the unpaid balance due was $15,222.44 or $222.44 more than it was 16 years earlier.

The Court of Appeals construed the contract to permit the purchasers to pay the insurance premiums and taxes over $65.00 but held the $5,000.00 reduction in principal still must be paid from the monthly payments. The Court stated:

“There was some argument advanced by the appellants that the practical effect of the contract was to impose an unreasonable restraint upon alienation. But, as the contract was construed that argument is not tenable. It may take thirty-seven more years to acquire an unencumbered title in the appellants, but it can be done if they will exercise the option given them by the decree, namely, to pay the real estate taxes and fire insurance premiums over and above the $65 monthly payments, so that this amount can be applied to principal and interest.
“We do not think the situation here calls for a result which would defeat valuable contractual rights of the seller. It is reasonable to assume that the seller desired to collect 4% interest on the unpaid balance and should not be compelled to take a lump sum payment which would deprive him or his estate of that right. Meinecke v. Goedeke, 195 Md. 373, 73 A. 2d 445.” Id. at 124.

The Court further added:

“In that regard, what we said in Abell v. Safe Deposit & Trust Co., 192 Md. 438, 64 A. 2d 722, is applicable here. It would unduly prolong this opinion to set forth the lengthy and somewhat detailed facts surrounding that appeal in a bondholders’ suit against the trustee under a mortgage indenture and the issuing corporation. Concerning the point here involved it is sufficient to say we recognized, that where a mortgage indenture securing the payment of corporation bonds provided for redemption of only a certain number of them each year in the order of their serial numbers, and in no other way, this conferred a valuable right on the bondholders, and to redeem them in any other way was a violation of the contract by the corporation and a breach of trust by the trustee.” Id. at 125.

We hold that Pierson v. Pyles, supra, is controlling on the issue of the lack of the right to anticipate and we thus hold that said lack did not create an invalid restraint on alienation.

Appellant relies exclusively on Northwest Real Estate Co. v. Serio, supra, to support his contention. His reliance is misplaced. In Serio, a deed in fee simple contained, in addition to various building and use restrictions, a provision that the land should not be sold or rented for a period of approximately five years without the consent of the grantor, This provision was found to be void as a restraint on alienation and was severed from the deed. It is immediately apparent that Serio is distinguishable from the instant case. Here, unlike in Serio, the clause preventing anticipation for two years and the clause accelerating payment of interest in case of prepayment in no way prevents the alienation of the fee. In short, neither of the clauses just mentioned violated the purpose for the rule against invalid restraints on alienation, i.e.: neither clause made the property “extra commercium. ” Commonwealth Realty Corporation, et al. v. Bowers et al., 261 Md. 285, 297, 274 A. 2d 353 (1971).

The question of the propriety of the clause in the Royer deed of trust which required that in the event the note was paid prior to maturity all interest would be due as if the note had run its full term was dealt with succinctly and cogently by the trial court:

“The Court is of the opinion, and does specifically so find, that the penalty imposed, by way of the requirement for the payment of interest for the full term of the mortgage, is not an invalid restraint on the alienation of the estate transferred. That provision created and conferred upon the lender, Eva Lee Royer, a valuable contractual right of which she should not, and cannot, be deprived. The Agreement of Sale, dated August 8, 1970, the Deed of Trust, dated November 12,1970, and the Deed, of the same date, assured unto her not only security to her satisfaction for the payment of the remainder of the purchase price of the property, but assured unto her an income in such a manner as she desired the same, and which she, at least, believed to be in her best interest. Agreeable, as it was, to the buyers, obligors, guarantors and transferees, it constitutes a contractual obligation with which the Court should not, and cannot, tamper.”

See Pierson v. Pyles, supra at 124.

We agree completely with the trial court and thus hold that the “penalty” clause in the Royer Deed of trust did not impose an invalid restraint on alienation.

SPECIFIC PERFORMANCE

The sale contract between Connolley and the Harrisons was made subject to three conditions precedent, but as we stated above we are concerned only with the condition expressed in the following language:

“This contract is subject to the sellers obtaining a satisfactory release and settlement of the present outstanding mortgage against the property.”

The trial court, in discussing appellant’s specific performance complaint, found that the above quoted language was inserted in the contract for the benefit of the sellers (appellees-Harrisons), that the term “satisfactory release” meant satisfactory to the sellers, that no satisfactory release was available to the sellers and that the appellant had failed to prove that the sellers had not been diligent in an attempt to get a release of the mortgage.

We find, as did the trial court, that the term “satisfactory release” in the sale contract meant satisfactory to the sellers. Appellant argues that the term was for the benefit of both parties. His argument is not sound in light of the remainder of the contract and the circumstances surrounding the insertion of the disputed phrase.

An examination of the contract shows that it consisted of a single page with printing on both sides. The release provision is contained on the second side. On the front side among the pre-printed sections there is language which guarantees that the seller “shall convey the property by a good and merchantable title to the buyer, free of liens and encumbrances except as specified herein; . . .” (Emphasis added). The appellant-buyer was by this language protected from receiving the property still encumbered by a mortgage. It clearly follows that the “satisfactory release” provision must have been inserted to protect the sellers and that therefore the term satisfactory meant satisfactory to them. A review of the circumstances surrounding the insertion of the release clause also lends weight to this conclusion. In this regard the trial judge stated:

“It is important to remember that the negotiations surrounding the actual preparation of the Agreement of Sale, on May 15, 1971, were extended and intensive. They lasted for six hours, from three o’clock P.M. to nine o’clock P.M., with Hale Harrison in attendance for about two hours. The first (or front) page of the Agreement was prepared by the Agent for the Purchaser-Plaintiff, with the exception of the names of the ‘Sellers’. The second (or back) page was the subject of discussion and consideration, being finally prepared by Mr. Purnell, but executed by all parties, as can be seen from Plaintiff’s Exhibit No. 1. The encumbrance upon the property (referred to in the Record as a ‘Mortgage’) was discussed by all parties and was first made the subject of discussion by either Mr. Harrison or Mr. Purnell (more likely, Mr. Harrison) and not by Mr. Connolley, with the provision with respect thereto being specifically at the request of the Sellers.
“In view of these facts, the Court can only construe the meaning of the word “satisfactory” as being satisfactory to the Sellers. Such a unilateral agreement is, of course, valid and enforceable. Devoine vs. International Company, 151 Md. 690, and Compania De Astral vs. Boston Metals Co., 205 Md. 237, at pages 265-272.”

Our holding that the release provision was inserted for the protection and benefit of the appellee-sellers, of course, does not end our inquiry. In order to obtain specific performance in conditional contract situations, the complainant must show that: (1) the conditions precedent have been met; (2) they have been waived by the party who would benefit from them; or (3) there has been a lack of a bona fide effort to comply. Jones v. Saah, 261 Md. 340, 344, 275 A. 2d 165 (1971); Metz v. Heflin, 235 Md. 550, 552-553, 201 A. 2d 802 (1964); Diffenderffer v. Kleiman, 232 Md. 575, 577, 194 A. 2d 635 (1963); Griffith v. Scheungrab, 219 Md. 27, 35, 146 A. 2d 864 (1958).

There is no evidence that the sellers waived the condition that they obtain a satisfactory release of the mortgage from Royer.

The availability of a satisfactory release of the mortgage and the attempts made to procure same by the Harrisons was dealt with thoroughly by the trial court:

“On August 2nd, Mr. Cronin (the Agent for Mr. Connolley) was advised by Mr. Purnell [Agent for the Harrisons] that a release of the encumbrance had not yet been obtained, whereupon Mr. Cronin talked with Miss Royer on the telephone, and was referred to Mr. Feissner. On August 11th, Mr. Purnell again advised Mr. Connolley and Mr. Cronin that it was impossible to get a release of the ‘mortgage’. On August 9th or 10th, Mr. Connolley and Mr. Cronin were advised by Mr. Hale Harrison and Mr. John Harrison that they could not obtain a release of the ‘mortgage’. * * *
“One must look now, therefore, to the evidence presented as to the efforts made by the Sellers to obtain the ‘satisfactory release and settlement’. At a time subsequent to August 11, 1971, apparently ‘sometime in October’, Mr. Cronin spoke with Mr. Feissner on the telephone, and, according to Mr. Cronin, was informed by Mr. Feissner that there had been no contact with him with regard to obtaining such a release or settlement, and that the Sellers would have had ‘to come through him’. Although the date is not clear, assuming that it was on August 3rd or 4th, Mr. Cronin attempted to contact Mr. Feissner on the telephone, but found that he was ‘. . . in Spain, or he was out of the Country’, and would not return until after Labor Day, with his Associate, a Mr. Douglas, knowing nothing about the case. Incidentally, Mr. Feissner denied that he had ever been in Spain. At any rate, still after the expiration of the time limited in the Agreement of Sale, Mr. Cronin apparently had a conversation with Mr. Feissner ‘on or about November 11’ and wrote a letter on November 24, 1971, to which he received no reply [Plaintiff’s Exhibit No. 11]. The only other evidence was that contained in a conversation with Mr. Webb St. Claire ‘between the first and second hearing on this case’, in which Mr. St. Claire stated that he had not been contacted by the Sellers with regard to this matter, ‘and if he did he would have refused to release the mortgage’.
“This constituted the entire evidence presented upon this allegation in the Amended Bill of Complaint. Miss Royer was in Court, available to testify, throughout the trial, as was Mr. St. Claire, but neither were called by the Plaintiff to testify. Whether the affidavits filed by Mr. St. Claire and Mr. Hale Harrison on March 29, 1972 influenced this decision is not known to the Court. Mr. Hale Harrison and Mr. John Harrison were both in Court during the said trial, but were, likewise, not called to the Stand by the Plaintiff.”

We agree with the trial judge that, considering the evidence in the light most favorable to the complainant (appellant) as we are required to do under Md. Rule 535, nevertheless appellant failed to establish that the Harrisons did not in good faith attempt to get a satisfactory release of the mortgage from Royer.

The appellant argues that the failure of the Harrisons to tender all principal and interest due under the deed of trust to Royer in effect estopped them from claiming the failure of the condition precedent as a defense. This argument overlooks two things. First, since we have held earlier in this opinion that the clause in the Royer deed of trust which prevented prepayment for two years was valid, Royer was free to refuse any offer to prepay the total amount. In fact, there was evidence that Royer’s agent stated that no release would be given. This is also borne out by Royer’s affidavit filed prior to trial. Second, the appellant overlooks the fact that, even had Royer consented to prepayment, the amount due from the Harrisons on the note would have been greater than the purchase price to be received by the Harrisons from Connolley. It can scarcely be said that such a situation would qualify as a “satisfactory release” for the Harrisons.

We, therefore, hold that since a condition precedent to the existence of the contract between appellant and the Harrisons was not met, appellant was not entitled to specific performance.

Order affirmed.

Appellant to pay costs.

      . There is no contention that the usuary statutes apply. See Md. Code, Art. 49, § 7, exempting commercial property.


author: Gilbert, J.,

text:
    IN RE APPEAL NO. 179, September Term, 1974 from the Circuit Court for Dorchester County, sitting as a Juvenile Court
    [No. 179,
    September Term, 1974.]

      Decided November 20, 1974.

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

      Sidney S. Campen, Jr., for appellant.
    Submitted on brief by Francis B. Burch, Attorney General, David B. Allen, Assistant Attorney General, and William B. Yates, II, State’s Attorney for Dorchester County, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The appellant, age 15, was adjudged to be a juvenile delinquent. The finding resulted from his participation in three housebreakings and malicious destruction of properties which occurred during the afternoon hours. Appellant readily admitted his culpability. He said that the reason he and two other juveniles broke into the three residences was that they were hungry. One hundred twenty-two dollars was stolen from one house, and in the other two homes the destruction committed by the juveniles took the form of slashed portraits, torn pictures, a mutilated diary and splattered eggs in and about the house. Appellant did not explain, nor was he asked, how the mutilation and the hurling of eggs throughout the houses sated his hunger. Approximately one and one-half months following the adjudicatory hearing, Md. Rule 912, a disposition hearing was held, Md. Rule 913. At that time the court possessed a report of a clinical psychologist. Testimony was taken from the school principal in which it was indicated that the appellant, sometime after the adjudicatory hearing, had been suspended from school because a fire had occurred in his locker. Although the appellant denied that he set fire to his own locker, the principal was of the impression that the juvenile had done so. The principal stated that the young man was a “B - C student who could be A”, and that “the youngster has the potential to do even better”. The psychologist’s report, after indicating most strongly that there was a conflict between the juvenile and his father which emotionally “terrorized” the juvenile, stated:

“It is this examiner’s opinion that this child should not be removed from his parents’ home but should remain on probation. Counseling will be made available to the parents if possible through the court to help especially the father to deal more appropriately with his attitude towards the child. The father seems to be more interested and most eager to help his children and that he might have been over zealous in his efforts to make them the kind of men he wants them to be.”

The hearing judge stated:

“We have had an epidemic of housebreakings, and we are not going to countenance it. We are not going to have people’s homes broken into, their property vandalized and stolen, and the message should go out loud and clear that we are not going to have it....
I have a job to do. There are a lot of things that I do that are difficult, but I have to do it. I have to do what I think is right and in the long run is going to best protect and help you boys and at the same time protect the community. . . .
I’m very much impressed with your behavior since January 17th when you had a hearing. There was a finding, and you knew that a disposition hearing was coming up and that this case would be disposed of following an investigation. I am not deciding the truth or falsity of any charges for which you were suspended, that has already been determined by the school authorities, but it is important to me because it is indicative of your attitude. It is indicative of the fact that notwithstanding a finding of delinquency in these serious cases you will not comply with the regulations and will not behave as you know you should behave in society. . . .
... I will sign an order committing these boys to the appropriate institution. . . .”

An appeal was entered on March 4, 1974 to this Court. Three days later appellant applied to us for a stay of the juvenile court’s order pending a determination of his appeal. We, pursuant to Md. Ann. Code, Cts. & Jud. Proc. Art. § 12-701b (1974), conducted a hearing on March 12, 1974, and on March 13, issued our Order staying the effect of the commitment by the juvenile court. Following the receipt of our Order, the juvenile court judge directed that the juvenile be released from the custody of the Secretary of Health and Mental Hygiene, and he placed the child under parental control.

The case is now before us on its merits.

Courts Art. § 3-802 provides:

“(a) The purposes of this subtitle are:
(1) To provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle;
(2) To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior;
(3) To provide for a program of treatment, training, and rehabilitation consistent with the protection of the public interest;
(4) To place a child in a wholesome family environment whenever possible;
(5) To separate a child from his parents only when necessary for his welfare or in the interest of public safety;
(6) To provide judicial procedures for carrying out the provisions of this subtitle.
(b) This subtitle shall be liberally construed to effectuate these purposes.”

Although we are cognizant of the general rule that the disposition in a juvenile case rests within the sound discretion of the juvenile judge and will only be disturbed on appeal upon a finding of an abuse of that discretion, In Re Arnold, 12 Md. App. 384, 278 A. 2d 658 (1971), In Re Hamill, 10 Md. App. 586, 271 A. 2d 762 (1970), we think that the record in this case demonstrates such an abuse because it does not show that the separation of the child from his parents is in “his welfare or in the interest of public safety.” We repeat what we said in Hamill, supra at 590-591:

“. . . [I]t is clear that the Legislature intended no departure in philosophy from that underlying previous juvenile court enactments in Maryland, as interpreted by the Court of Appeals, viz., that juvenile proceedings are of a special nature designed to meet the problems peculiar to the adolescent (In Re Fletcher, 251 Md. 520 [248 A. 2d 364 (1968)]); that the proceedings of a juvenile court are not criminal in nature and its dispositions are not punishment for crime (In the Matter of Cromwell, 232 Md. 409 [194 A. 2d 88 (1963)]); that the juvenile law has as its underlying concept the protection of the juvenile, so that judges, in making dispositions in juvenile cases, think not in terms of guilt, but of the child’s need for protection or rehabilitation (In Re Johnson, 254 Md. 517 [255 A. 2d 419 (1969)]); that the juvenile act does not contemplate the punishment of children where they are found to be delinquent, but rather an attempt to correct and rehabilitate them in ‘a wholesome family environment whenever possible,’ although rehabilitation may have to be sought in some instances in an institution (Moquin v. State, 216 Md. 524 [140 A. 2d 914 (1958)]).”

See also Matter of Johnson, 17 Md. App. 705, 304 A. 2d 859 (1973); In Re Arnold, supra.

The record in the instant case does not justify uprooting the child from his parents’ home and placing him in a training center or other juvenile institution. We, therefore, vacate the judgment of the juvenile court and remand the matter with instructions that the court conduct a new disposition hearing. At that hearing the court should reconsider its disposition in the light of the legislative purpose, our decisions in Matter of Davis, 17 Md. App. 98, 299 A. 2d 856 (1973); Matter of Roberts, 13 Md. App. 644, 284 A. 2d 621 (1971); Matter of Wooten, 13 Md. App. 521, 284 A. 2d 32 (1971); In re Arnold, supra; In re Hamill, supra, as well as the conduct of this youthful offender since his placement on probation following our Order of March 13, 1974.

Judgment vacated.

Case remanded without affirmance or reversal for further proceedings not incovsiste?it with this opinion.

Costs to be paid by the County Commissioners of Dorchester County.

      . The record reveals that restitution has been made.

      . The cases of all three iuveniles were heard at the same time by the juvenile court judge. Two of them did not appeal.

      . The order placing the child under parental control provided:
      “While on probation the probationer shall refrain from further delinquent behavior; shall avoid persons and places of disreputable or harmful character; shall report as directed and obey the instructions of his Probation Officer; shall not leave the jurisdiction without permission and shall comply with other conditions as specified below or may at any time be imposed by this Court.
      1. Attend school every day and every period.
      2. Achieve academically to the best of your ability.
      3. Not to associate with those who are involved, in any way, with any form of drugs or narcotics.
      4. Not to leave school grounds at anytime during school day without specific written permission.
      5. To report to the Probation Office every Tuesday after school.
      6. Not to leave Dorchester County unless accompanied by and under the supervision of your parents.”


author: Moore, J.,

text:
    HERBERT BIRDSALL v. MARJORIE BIRDSALL
    [No. 88,
    September Term, 1974.]

      Decided November 21, 1974.

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

      Walter W. Johnson, Jr., for appellant.

      Jackson Brodsky, with whom was Jeffrey N. Greenblatt on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant-husband, a corporate executive earning in excess of $50,000 per year, appeals from an award of alimony in the sum of $1800 per month and child support of $200 per month contained in a decree granting the wife a divorce a vinculo on grounds of adultery. The parties were married for 27 years and had four children, one of whom is deceased. The three other offspring have attained their majority.

The husband’s adultery was clearly established. It reoccurred (with the same paramour) after the dismissal by the wife of a prior divorce action based on adultery followed by a reconciliation to which she agreed in the interest of the family and upon condition that the illicit relationship would cease.

The record discloses that the parties and their children had enjoyed a comfortable standard of living. For approximately six years prior to the trial, they occupied a country home on 5V2 to 6 acres in Germantown, Montgomery County, Maryland, with an outdoor swimming pool, spacious patios and other amenities. The wife’s estimate of the value of the property was in the range of $165,000 to $200,000. The husband’s financial statement assigned it a valuation of $115,000. At the time of trial the husband was occupying the daughter’s former bedroom on the second floor and testified that he intended to reside in the dwelling even after a divorce. The wife continued to occupy the master bedroom on the first floor, sharing it (upon advice of counsel) with her mother who came to live with her prior to the filing of the bill of complaint in April, 1973. The parties’ two sons also resided there, the older one of whom contributed $25 per week for his support. The wife’s mother contributed approximately the same amount.

The record discloses that the husband is a vice-president of Colonial Carpets Inc., a retail sales organization with two outlets in Virginia and one in Maryland, with gross sales in 1973 of approximately $1,800,000. He is the owner of a 49% stock interest in the business purchased for $50,000 in 1961. His salary from Colonial was $700 per week and he received another $200 per week salary from a carpet installation business known as B. & L. Installations. In addition, he was paid commissions from an organization known as General Felt Industries aggregating, in 1973, $4,586.34. Thus, his total earnings for the calendar year 1973 were $51,386.34. In addition, the Carpet Company provided him with hospitalization, vacations, and a B.M.W. automobile including gasoline, maintenance and repair services.

The husband’s assets, as shown on his financial statement, were in the sum of $192,138 against which were listed liabilities of $57,666.66. The latter included the house mortgage of $35,000, an obligation to his own company in the sum of $15,000 and a note in the sum of $7,666.66. The note, however, was a deed of trust note secured by real property in Virginia, and was signed by the husband as an accommodation endorser only. Mr. Birdsall’s assets, in addition to the stock interest in the business and his equity in the matrimonial residence, included a 23-foot Thunderbird motorboat which he purchased for $6,000 and valued at $2,000, an interest in a Tennis Club in Virginia claimed to be worth $1,000 after an original investment of $5,000, and an interest in a joint venture valued by him at $18,000 after an original investment exceeding $28,000.

The husband’s total expenses were stated at $3,208.84 per month. This, however, included pendente lite alimony and support of $415, attorney’s and investigator’s fees in the amount of $378, house maintenance of $388.24, meals outside the home at $390 and recreation and entertainment in the sum of $338.62. Several of the above items of expense were plainly overstated. Moreover, certain of the husband’s answers concerning his financial requirements were not such as would impress the Chancellor with their accuracy and reliability. The following testimony of the appellant on cross-examination is illustrative:

“Q. Now, you have transportation at the rate of $85.00 a month?
A. That is right.
Q. And what is that for?
A. Well, I get charged back for a percent of my gas and by Internal Revenue if they don’t allow it, I tried to deduct the whole thing and the last time they tried to allow me ten percent which is highway robbery, and I am trying to get it back from them. Who knows.
Q. Well, but so far this year you have, you are being charged the entire cost of your transportation to Colonial, is that right?
A. I charge it to Colonial.”

The wife’s financial statement reflected income from dividends on shares of stock inherited from her father in the sum of approximately $50 per month. She had been employed before the marriage as a secretary and, several years prior to the trial, had worked temporarily in a women’s apparel shop. Her assets included the aforementioned inherited shares of stock with a value of approximately $13,200, a 1973 Thunderbird given to her by her husband, a savings account of approximately $1,000 and a small checking account. In addition, she claimed an equity in the home and an interest, unspecified, in the husband’s carpet business. The only liability listed by Mrs. Birdsall was the home mortgage.

The wife’s testimony, unrebutted, was that during the marriage she managed the household and paid the household bills except for large maintenance costs and auto expenses. The money expended by her, according to her testimony, averaged between $1,200 and $1,300 each month, not including domestic help, transportation, entertainment and taxes. Her projected monthly expenses for herself and the then minor child, assuming their living in a rental unit rather than the home, were in the sum of $2,193, including an estimate of federal and state income taxes of $250 per month. Her specific expenses were listed as follows: rent $450, food $350, clothing $210, medical/dental $75, transportation $75, recreation and vacation $150, insurance and hospital $120, realty taxes $160, light and telephone $120, heat (oil) $33 and incidentals $200.

At the conclusion of the trial the chancellor delivered an oral opinion from the bench and, after holding that the wife had clearly sustained the burden of proof with respect to the husband’s adultery, found that the husband “has a capacity to earn in excess of $50,000 a year and . . . there is no indication ... of reducing his income significantly below that amount.” The court also observed that the husband enjoyed “a great variety of the amenities of life and apparently he has shared these with his family, at least in part, over the course of their married life, and they have established a station in life which is quite substantial. . . .”

Before concluding that a reasonable amount of alimony would be $1,800 per month, the chancellor noted that the wife had not currently been employed and that her station in life had not required employment; and further that she was at an age “where opportunities for employment are indefinite and uncertain” and that the record did not support the availability of any particular employment at that time. The court also remarked that the wife was “wronged” by the husband’s conduct and that there was nothing to indicate that she contributed in any way in the fault that destroyed the home. j

The essence of ¡the husband’s complaint on this appeal is that, after payment of federal, state and local taxes, he has a net income of approximately $36,786; that on a monthly basis this leaves' approximately $3,000 “after-tax dollars” available for. the support of himself and his former wife; and that the court’s decree results in his being required to pay 66 A per cent of his net income in support payments. Our analysis of the arithmetical computations presented in appellant’s brief demonstrates that his statements are inaccurate. We turn first, however, to a consideration of appellant’s legal contentions.

I

We flatly reject two major premises advanced by the husband: (a) that Donigan v. Donigan, 208 Md. 511, 119 A. 2d 430 (1956) altered the general rule that the chancellor is entrusted with wide discretion in making an award of alimony which should not be disturbed on appeal unless it was arbitrarily used or his judgment was clearly wrong; and (b) that the Court of Appeals in Bowis v. Bowis, 259 Md. 41, 267 A. 2d 84 (1970) approved a one-third-of-net-income rule as a “suggested guideline” to be followed in awarding alimony.

In Donigan, the chancellor denied alimony and the Court of Appeals held this action clearly erroneous. It was not a case where, as here, the equity court heard testimony and oral argument. There the Court stated (p. 521):

“In the case before us the chancellor did not see the witnesses and decided the case from the record, even as do we, without the benefit of oral argument which we have enjoyed, so that his opportunity for a sound exercise of judgment was not as great as ours.”

The observations of the Court in Donigan are patently applicable only to the procedural posture of that and similar cases where the lower court made its determination on the basis of a record and recommendations submitted to it. Where the lower court has heard the testimony and seen the witnesses, the scope of appellate review is more limited. As the Court of Appeals stated in Lopez v. Lopez, 206 Md. 509, 520, 112 A. 2d 466 (1955):

“The Court of Appeals has the right to review the amount of alimony allowed, but the award should not be disturbed unless the chancellor’s discretion was arbitrarily used or his judgment was clearly wrong. ” (Emphasis added.)

See also Willoughby v. Willoughby, 256 Md. 590, 261 A. 2d 452 (1970).

As for any percentage guidelines in the determination of awards of alimony, the husband’s interpretation of Bowis, supra, is erroneous. In Bowis, the late Judge Finan writing for the Court observed that in three cases “one may gather . . . that this Court followed an approximate one-third rule of net income in awarding alimony where support for children was not involved.” He quickly added, however, that the Court of Appeals has “repeatedly emphasized the fact that there are no pat rules or statutory mandates to be followed in making awards for alimony and support and maintenance,” and concluded:

“Indeed, one is hard-pressed to find any area of law where the need is more compelling to tailor the remedy to the facts of each particular case. ” (p. 43) (Emphasis added.)

Citing Bowis, this Court held in Quinn v. Quinn, 11 Md. App. 638, 276 A. 2d 425 (1971) that:

“. . . [N]o fixed rule exists whereby the amount of the award is based on a percentage of the husband’s wealth or income.” (Emphasis added.)

Indubitably, the Court of Appeals and this Court have, in passing, made note of the percentage relationship between the award to the wife and the husband’s “net income,” sometimes adverting to the effect of income taxes and sometimes not.

Thus, in Schuman, supra, n. 3, the Court of Appeals, in an opinion by Smith, J., found that an award of alimony of $180 per month was inadequate and “should be increased to $300 per month, a little more than Vs of the husband’s income.” (Emphasis added.) (252 Md. at p. 17). There, the Court found from the record that the husband’s net worth was $79,000 and his “total net monthly income” was $876, derived from two pensions, from “net income” on rental properties and from dividend and interest income. Although the Court did not specify whether the “net income” was before or after taxes, it does appear that the term was used in a business or accounting sense, i.e., after business expenses but before taxes.

And in Hall, supra, n. 3, the Court of Appeals, in an opinion by Powers, J., Associate Judge of the Seventh Judicial Circuit, specially assigned, held that “the allowance by the chancellor to the wife of $300 a month, being approximately one-third of the husband’s net income, without proof that he has assets of any substantial value, is not clearly erroneous and accordingly, this finding will not be disturbed. Maryland Rule 886 a.” (Emphasis added.)

The husband’s income tax payments were noted by Judge Delaplaine for the Court of Appeals in Bradshaw, supra, n. 3, wherein it was held that an award of $210 per month “is about SOper cent of the husband’s incow,e afterpayment of the income tax. This is not so excessive as to oppress him.” (Emphasis added.) (189 Md. at p. 326). The Court observed that the husband’s 1946 income was $8,439.87 on which he paid a federal income tax of $1,559.86.

Reducing an award of $400 per month to $225 per month in Verges v. Verges, 13 Md. App. 608, 284 A. 2d 451 (1971), this Court in an opinion by Judge Moylan, observed that the modified award was V3 of the husband’s income before taxes:

“We believe that alimony in the amount of $225 per month would be proper and more in keeping with the standards laid down in Xewmeyer v. Xewmeyer, 216 Md. 431, 435, and Quinn v. Quinn, supra. Without suggesting that a mechanical formula can ever govern in such cases, ice point out that this would, represent approximately 1/3 of the appellant-husband's net income before taxes. As is always the case, alimony awards are subject to revision as circumstances change.” (Emphasis added.)

Analyzing the income and expense evidence of the respective parties’ income in Verges, Judge Moylan found that the wife’s earnings of $185 per month added to the $400 award recommended by the Domestic Relations Master would produce almost $150 per month in excess of her claimed monthly living expenses; whereas the husband’s net income of $525 after business expenses and taxes would be reduced by the award to $125 per month with which to meet his estimated living expenses of $483 per month.

Of course, even where no percentage is disclosed in the opinion of the appellate Court, the reader may make the arithmetical computation upon the basis of the facts stated. Thus, in Bowis, supra, Judge Finan noted that the chancellor found supporting evidence for an “annual gross income” of $11,600. The alimony award of $150 per month and the allowance of $300 per month for the support of the three minor children, represented 48% of the husband’s income before taxes. Furthermore, since the wife herself had earnings of $2,000 per year, this sum added to the alimony and support payments of $5,400 per year represented total annual cash receipts by the wife of $7,400, this being 64% of the husband’s income before taxes.

Similarly, one may calculate that the award of alimony and support of $1,600 per month in Burton v. Burton, 253 Md. 233, 252 A. 2d 472 (1969), supra, equalled 35% of the husband’s income before taxes. The husband’s net worth was $400,000 and the chancellor stated: “In deciding this case I am assuming an income of Mr. Burton of about $55,000 a year before taxes. . . . After taxes that gets down to about $43,000 a year for 1967.”

Where allegedly disproportionate percentage figures specifically argued on appeal and the reviewing court orders a reduction of the award, it obviously must not be inferred in Maryland that the reduction was mandated for the principal purpose of lowering the percentage. For example, in Gebhard v. Gebhard, 253 Md. 125, 252 A. 2d 171 (1969), it was contended that an alimony award of $525 per month was excessive and amounted to approximately 54% of the husband’s income for the year 1968, estimated at $11,500. The Court of Appeals modified the award, reducing the monthly payments to $400, stating that this amount “would be proper and more in keeping with the standards laid down in Newmeyer, supra.” [216 Md. 431, 435, 140 A. 2d 892 (1958)]. The wife in Gebhard was afflicted with an incurable disease. The sum of $400 per month represented 42% of the husband’s income. This percentage was not stated, however, in the opinion of the Court. The modified payment was characterized as “more than is normally awarded on an income of the husband of $11,500. It takes into consideration the medical expenses of the wife.” The award was based, as is proper, on the needs and financial circumstances of the parties and not on a specified percentage.

Strikingly demonstrative of the broad range of factors to be considered in making an award of alimony and the unreliability at times of even the husband’s taxable income or adjusted gross income as indicators of his ability to pay, is the case of Quinn v. Quinn, 11 Md. App. 638, 276 A. 2d 425 (1971), supra. There the husband held complete stock control of a mechanical contracting corporation of which he was president. The chancellor granted the wife a divorce a mensa et thoro on the ground of constructive desertion and awarded alimony in the sum of $4,000 per month. The husband received an annual salary of $65,000. His assets were valued by his wife’s accountant, Thomas O’Neil, at $2,489,565 and by his own accountant at 1.4 million. Mr. O’Neil also made a determination that the husband’s “net cash flow” was $144,493 annually — composed of his salary and certain retained net earnings of the corporation.

Chief Judge Murphy, then writing for this Court, noted that the alimony award of $48,000 per year constituted exactly one-third of the above cash-flow figure of $144,493. He concluded, however, that the chancellor had overstated the husband’s ability- to pay by “attributing to him substantial corporate profits not then reasonably available to him.” Continuing, Chief Judge Murphy stated (p. 650-1):

“We need not, however, undertake to determine with mathematical precision just how much money the husband has reasonably available to him with which to pay alimony to the wife. Under the facts of this case, it is obvious that neither the husband’s taxable income or his adjusted gross income are reliable indicators in this regard. At the least, in this case, the husband’s gross salary and other current income must be taken into account in assessing his overall financial ability. But also to be taken into account, and considered along with the husband’s financial condition, is the key element of the wife’s need for support, a need to be measured in light of her own income and assets and the standard of living to which she had become accustomed.” (Emphasis added.)

The Court then concluded that upon consideration of all relevant factors including living expenses, tax consequences, health, fault of the husband, age, and ability to work, a proper award would be $2,250 monthly instead of $4,000 and the decree was modified. (The modified award of $2,250 monthly represented 41% of the husband’s income before taxes of $65,000.)

Accordingly, we restate with emphasis that in Maryland the only statutory guideline is that contained in Code, 1957 (Vol. 2A, 1973 Repl. Vol.) Art. 16, § 5, that the court shall not award alimony or alimony pendente lite “unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs”; and that the guidelines to be followed on the basis of decisional law are not percentage figures which from time to time appear in appellate opinions or can be derived mathematically from the facts of record. They are rather, in the words of now retired Judge McWilliams in Burton v. Burton, supra, the “shopworn expressions,” with which opinions of the Court of Appeals and this Court abound, concerning the principles of law which are applicable, as stated in Waters v. Waters, 191 Md. 436, 440-1, 62 A. 2d 250 (1948):

“Although, in this case, the husband has been found guilty of adultery, the awarding of alimony is never a punitive measure. In determining an award of alimony and whether ‘the wife’s income is insufficient to care for her needs,’ the court should consider the husband’s wealth and earning capacity, the station in life of the parties, age, physical condition, the ability to work, the length of time the parties have lived together, the circumstances leading up to the divorce, and the fault which destroyed the home, [citations omitted] Also, of course, to he taken into consideration are the assets and income of the wife, [citations omitted] In making such an award the court can only use judicial discretion. Of course, there is no special statute or rule governing this discretion. It must be exercised to the necessary end of awarding justice and based upon reason and law.” (Emphasis added.)

II

With respect to the arithmetical contentions made by appellant, we note that he is now represented by other counsel and did not offer to the court below the tax calculations contained in his brief on appeal. While we recognize that income tax consequences cannot be fully projected until the trial court has ruled, it is nevertheless apparent that the impact of taxes can — and should — in many cases be anticipated and brought to the attention of the trial court; and it rests, of course, within the discretion of the chancellor to grant upon appropriate motion a reconsideration of an award should the tax impact of the allowances made result in claimed unfairness. We do not, however, consider it within the proper scope of appellate review to undertake income tax analyses on the basis of computations presented for the first time in appellate briefs.

Our only observation, therefore, on the percentage figures claimed by the husband to be excessive is that the chancellor’s alimony award in this case when combined with the wife’s other income represented approximately 43% of the husband’s before-tax income of $51,386. (In addition, this figure for the husband’s “income” does not include his substantial “fringe benefits,” heretofore noted.) This is not out of proportion to awards affirmed in prior cases. See, Verges, supra, Gebhard, supra, Quinn, supra. See also, Sullivan v. Sullivan, 223 Md. 74, 162 A. 2d 453 (1960).

In addition, we consider it misleading to discuss, as appellant’s brief does here, the tax consequences to one party without considering the tax consequences to the other. In this case the wife’s tax burden should be proportionately greater on her alimony income than the burden on the husband since he receives the benefit of a deduction for the alimony payments.

We conclude that the chancellor took due account of the elements properly to be considered and did not abuse his discretion in making the award to the wife. We also conclude that the husband’s contention that there was an improper allocation between the wife and the then minor son is unsupported. The chancellor should have set down in greater detail his reasons for concluding that $1,800 per month was a reasonable amount. Cf. Burton v. Burton, supra. Nonetheless we are unwilling to say that on the record which was before him the award was clearly wrong.

Judgment affirmed; appellant to pay the costs.

      . The youngest child, who had suffered a nervous breakdown approximately one year prior to trial and for whom the $200 per month was awarded, became 18 years of age on March 18, 1974. As of that date, the father was relieved of the child’s support payment. Code (1957, 1968 Repl. Vol., 1974 Cum. Supp.) Art. 1, § 24. Under Code (1957, 1971 Repl. Vol.) Art. 27, § 97, however, the parent of an adult destitute child unable to support himself by reason of “mental or physical infirmity” may be found guilty of a misdemeanor for failure to support such child. As noted, infra, the father contends on this appeal that if the wife’s claimed expenses for the child were correct, her own living expenses would not have required alimony payments of $1800 per month; or otherwise stated, that the sum of $1800 was not a reasonable allocation of the total payment of $2000.

      . Quoting from the opinion of Hammond, J. (later Chief Judge) in Donigan, appellant’s brief omits the first sentence of the partially quoted paragraph: “We think the chancellor was clearly wrong in refusing alimony.”

      . Schuman v. Schuman, 252 Md. 13, 248 A. 2d 876 (1969); Hall v. Hall, 238 Md. 191, 208 A. 2d 593 (1965); and Bradshaw v. Bradshaw, 189 Md. 322, 55 A. 2d 719 (1947).

      . In Schuman and Hall, as noted infra, the term “net income” meant before taxes. In Bradshaw the Court deducted the husband’s taxes.

      . As stated by the Connecticut Supreme Court in Sturtevant v. Sturtevant, 146 Conn. 644, 153 A. 2d 828 (1959):
      “In general accounting practice, net income, as applied to this case, would ordinarily consist of the total income received by the defendant from all sources, less the legitimate expenses of realizing it, such as office expenses or other expenses of practice. * ** * A deduction of the alimony paid to the plaintiff during the year covered by the return, even though presently authorized for income tax purposes, should not be made in computing the net income of the defendant under the agreement, since the payment of alimony would not constitute an expense incurred in realizing income.” Id. at 648.

      . The modified award of $225 per month along with the wife’s other income equaled 61% of the husband’s before-tax income.

      . It appears that the wife offered no testimony concerning her past or anticipated tax liability.

      . See, Nelson on Divorce and Annulment, Vol. 2, § 14.37, where the author points out that some states provide by statute that an award of alimony shall not exceed one-third of the income of the husband; and that by court decisions in some states the general rule is to award the wife approximately one-third, “although the modern trend is to award the wife a share much larger than one-third or one-half, if the circumstances warrant such larger award, so that an allowance of alimony to a wife of between one-third and one-half or more of her husband’s earnings is not unreasonable or unusual.” (citations omitted.)

      . We reject out of hand appellant’s representation in his brief that there is an additional tax liability of $314 per month “as a result of a deficiency in the withholding of taxes from his wages by his employer.” That there was insufficient withholding does not, of course, affect the taxpayer’s total annual tax liability. In this regard we find somewhat misleading appellant’s reference in brief to his 1972 income tax return showing a balance due of $6,050.66. This amount was not reported on his financial statement as a liability and presumably was paid at the time his U.S. individual tax return (Form 1040), prepared by an accountant, was filed.


author: Menchine, J.,

text:
    DANIEL BOYD ROSCOE v. WARDEN, BALTIMORE CITY JAIL
    [No. 206,
    September Term, 1974.]

      Decided November 21, 1974.

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

      Alexander R. Martick for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Timothy Seidel, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Daniel Boyd Roscoe was arrested in the City of Baltimore on the 31st of October, 1973 on a fugitive warrant based upon an arrest warrant issued in the State of Virginia. On November 15, 1973 the Governor of Virginia issued his order to J. J. Rawlings, agent, and F. F. Smith, guard, authorizing and empowering them to receive Daniel Boyd Roscoe from the proper authorities of the State of Maryland and to take him to the City of Norfolk in the State of Virginia to be dealt with according to law. The Virginia Governor’s order described Roscoe as a fugitive from justice.

The Governor of Maryland, after a hearing conducted by his representative, issued a warrant of rendition authorizing the said J. J. Rawlings, agent, and F. F. Smith, guard, as agents of the State of Virginia to take and transport Daniel Boyd Roscoe to the borderline of the State of Maryland. As authorized by the provisions of Article 41, § 25 of the Annotated Code of Maryland, Daniel Boyd Roscoe filed a petition for habeas corpus in the Baltimore City Court to test the validity of his arrest. Judge Marshall A. Levin on April 5, 1974 sustained the validity of the Maryland warrant of rendition and denied habeas corpus relief.

In his appeal to this Court Roscoe contends:

1. That he was denied his constitutional right to trial by jury, and
2. That he was improperly denied habeas corpus relief on constitutional and factual grounds.

1. Denial of Jury Trial

Appellant maintains that the question whether he is a fugitive from justice is an issue of fact. From this correct premise he contends, quite incorrectly, we think, that he is entitled to a trial by jury for decision upon that question. The issue appears to be one of first impression in this State.

Church on Habeas Corpus § 173, at 256 (2nd Ed. 1893) states:

“A trial by jury cannot be demanded by a prisoner or respondent in a habeas corpus proceeding as a matter of right. Might as well a trial in a preliminary examination, or in chancery, by jury be demanded. There is no provision in the constitution of the United States, neither is there in any of the state constitutions, which gives the right to have these issues of fact tried by a jury in such proceedings. The constitutions, federal and state, provide, substantially, that the right of jury trial shall not be violated, but it is no violation of this inestimable privilege to deny it in chancery proceedings, preliminary examinations, and proceedings by habeas corpus.”

In Barry v. White, 64 F.2d 707 (D.C. Cir. 1933) it was said at 709:

“The constitutional guaranty of trial by jury preserves such right only as it existed at common law or by statute prior to the adoption of the Constitution, and does not extend it to the trial of issues the determination of which had been theretofore by the court alone, as on hearings of habeas corpus.”

Pittman v. Byars, 112 S. W. 102 (Ct. of Civ. App. Tex. 1908) is a leading case on the question. The Constitution of Texas contains provisions relating to trial by jury similar to Maryland. It was said at 106:

“Both before and since the adoption of the present Constitution, it has been the uniform practice in this state for habeas corpus cases to be tried before the court, and not by a jury, and this has been as well the settled practice in England as in the United States. Notwithstanding the broad language used in the Constitution, we are loath to believe that it was the intention of the framers thereof to change the rule in this respect, and to require that habeas corpus cases should be tried by a jury, and not by the court. Therefore we are inclined to follow the beaten path of the common law as well as the uniform practice by our own courts, and hold that the court below did not err in refusing to grant appellants a trial by a jury.”

Two extradition cases in other jurisdictions, precisely on point, are Storms v. Lambert, Sheriff, 355 P. 2d 766 (S. Ct. Ore. 1960); and Ex Parte Graves, 128 N. E. 867 (S. Jud. Ct. Mass. 1920). In Graves, supra, it was said at 871:

“Trial by jury in habeas corpus has never been allowed in this Commonwealth, so far as we are aware. Such proceedings would be contrary to the essential nature of that writ, which is to determine forthwith the right of a person to his liberty.”

We are persuaded by the authorities cited supra, that the right to a jury trial guaranteed by the Constitutions of the United States and the State of Maryland does not extend to factual determinations in habeas corpus cases.

Denial of Habeas Corpus Relief

Appellant mounts a three-pronged attack on the trial, court’s denial of relief. He contends: (a) that the State failed to show compliance with § 18 of Article - 41; (b) that he was thereby unconstitutionally subjected to double jeopardy; and (c) that he proved beyond a reasonable doubt that he was not a fugitive.

(a) Compliance with § 18

Section 18 of Article 41 reads as follows:

“No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under § 21, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a justice of the peace or magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken' the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate or justice of the peace must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of the indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.”

Appellant contends that the State offered no evidence at the hearing in the trial court, that Virginia’s request for extradition had been accompanied by a copy of an indictment or information. He urges that the State had a burden to make such a showing. The difficulty with appellant’s position is that the warrant of rendition issued by the Maryland Governor was offered in evidence. It has been established beyond cavil that execution of the Governor’s warrant of rendition raises a presumption that the accused is the fugitive wanted and it is sufficient to justify his arrest and detention and delivery to the demanding state, unless he shows beyond a reasonable doubt that he was not a fugitive. Koprivich v. Warden, 234 Md. 465, 469, 200 A. 2d 49, 52, and cases therein cited.

The contention here made is precisely answered in Ray and Huntley v. Warden, 13 Md. App. 61, 281 A. 2d 125, wherein we said at 63-64 [126-27]:

“The appellants contend the burden of proof is upon the state to show a compliance with Md. Code, Article 41, § 18, which requires that the demand for extradition be accompanied by a copy of the indictment, information, conviction, etc. and that the copies of the required papers be authenticated by the Governor of the demanding state. The appellee on the other hand, contends that the production of the warrant issued by the Governor of Maryland containing proper recitals is itself sufficient to authorize extradition in the absence of contrary proof by the applicant for the Writ of Habeas Corpus. We agree with the appellee.
“To support this argument, the appellants cite Commonwealth ex rel. Girnus v. Haas, 439 Pa. 39, 266 A. 2d 94, Audler v. Kriss, 197 Md. 362, 79 A. 2d 391 and Campbell v. State, 10 Md. App. 406, 271 A. 2d 190. Two of these cases support the proposition that the accompanying papers will be reviewed if they are presented to the court but none cover the question as to who has the duty to present the papers. The general rule is that the issuance of the Governor’s warrant, valid on its face, creates the presumption that documents accompanying the demand were in proper order. Cases so holding are cited in the note.
“It appears that this particular point has not heretofore been presented to the Courts of Maryland. The spirit of our decision however, appears to be in accordance with Solomon v. Warden, 256 Md. 297, 260 A. 2d 68 where the Court stated that the issuance of a warrant of rendition created a' presumption that the accused is the fugitive wanted and places a burden upon him to prove beyond a reasonable doubt, either, that he was not present in the demanding state at the time of. the c,rime, or, that he was not the person named in the warrant. We hold that if the warrant of rendition is valid on its face, the applicant also has the burden to prove that the warrant was improperly issued.” (Footnote omitted.)

(b) lDouble Jeopardy

Appellant’s contention that failure of the trial court to give credit to his evidence of the alleged prior termination of criminal proceedings against him in the State of Virginia was in violation of his constitutional protection against double jeopardy, is not for decision by the Courts of Maryland. In Moquin v. State, 216 Md. 524, 140 A. 2d 914, it was said at 527-28 [916]:

“The concept [double jeopardy] clearly contemplates that the action which bars a second prosecution must be one instituted in a court which has the power to convict and punish the person prosecuted for his criminal conduct.”

Chief Judge Hammond, in Johnson v. Warden, 244 Md. 384, 389, 223 A. 2d 584, 587, adopted the language used in People, ex rel Hackler v. Lohman, 160 N.E.2d 792 (Ill. 1959) wherein it had been stated:

“Since the only purpose of extradition is the return of the fugitive to the place of the alleged offense, his constitutional rights, other than the present right to personal liberty, are not involved.”

Any question of double jeopardy is a matter for resolution in the demanding state.

(c) Was Appellant a Fugitive?

In Solomon v. Warden, 256 Md. 297, 260 A. 2d 68, it was said at 300-01 [70]:

“In order to rebut the presumption [that the accused is the fugitive wanted] the accused must prove beyond a reasonable doubt either that he was not present in the demanding state at that time of the alleged offense or that he was not the person named in the warrant, and upon proof of the one or the other he is entitled to be released.”

In the subject case, the appellant does not maintain that he was not in the demanding state at the time an alleged offense was committed. His position is that he proved beyond a reasonable doubt that he is not a fugitive from justice because he has shown beyond a reasonable doubt that there is no indictment or information pending against him in the demanding state. We find his evidence to fall far short of its mark. It is true that at the habeas corpus hearing appellant offered in evidence certified copies of docket entries of the Circuit Court in the City of Norfolk, reading as follows:

“ * * * it appears from a Report of Criminal Cases Disposed of by the Judge of the General District Court (Criminal Division), formerly Municipal Court of the City of Norfolk, Virginia, which records are required by law to be filed in this office, that Daniel Boyd Roscoe was charged on the 31st day of May, 1968, for Violation Sec. 18.1-65 State Code, to-wit: Shooting, stabbing, wounding with intent to kill, maim, etc.; Violation Sec. 18.1-44 State Code, to-wit: Rape; Violation Sec. 18.1-36 State Code, to-wit: Abduction and kidnapping; Violation Sec. 18.1-91 State Code, to-wit: Robbery; Violation Sec. 31.3 City Code, to-wit: Assault and Battery. These charges were dismissed. (Italics supplied.)

There was other evidence, however, supplied by William Elliott, a detective assigned to the Fugitive Unit of the Baltimore City Police Department, a witness in behalf of the State, that appellant was arrested on the 31st of October 1973 on a fugitive warrant issued in Virginia on the 3rd of June, 1968. The appellant has not established beyond a reasonable doubt that he is not a fugitive.

We do not, of course, reach the question whether dismissal of the warrants dated May 31, 1968 was dispositive of issues raised under the later warrant. This is a substantive issue for determination by the demanding state.

Order affirmed.

Costs to be paid by appellant.

      . Article 1, 5 1Ó of the Constitution of Texas provides, inter alia, “The right of trial by jury shall remain inviolate.”
      Article ó, 5 10 of the Constitution of Texas provides, inter alia, “In the trial of all cases in the district courts the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury * *
      Compare: Articles 5, 21 and 23 of the Declaration of Rights and Article IV, ijij 8 and 39, and Article XV, § 6 of the Constitution of Maryland.

      . Knee v. City Pass. Ry. Co., 87 Md. 623, 40 A. 890, although factually inapposite, recognized that the constitutional right to trial by jury in civil cases is to be construed in connection with the common law history of that right; Houston v. Lloyds, 241 Md. 10, 20, 215 A.2d 192, 198, repeated the language of Knee, supra, “ * * ' that it is the historical trial by jury, as it existed when the Constitution of the State was first adopted, to which the Inhabitants of each State are entitled.”
      In In Re Johnson, 254 Md. 517, 255 A. 2d 419, the trial court’s denial of a motion for jury trial in a juvenile proceeding was affirmed. (Cited and its position sustained in the plurality opinion in McKeiver v. Pennsylvania, 403 U. S. 528, 549, 29 L.Ed.2d 647, 663.) See also: Matter of Easton, 214 Md. 176, 133 A. 2d 441 (jury trial in lunacy proceedings not constitutionally mandated).


text:
    SALVATORE J. GUARNERA v. STATE OF MARYLAND
    [No. 209,
    September Term, 1974.]

      Decided November 21, 1974.

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

      Arthur D. Condon, Assigned Public Defender, for appellant.

      Gary Melick, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, James L. Bundy,

      Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and John T. Cantu, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Salvatore J. Guarnera, appellant, was convicted of escape by the Circuit Court for Anne Arundel County, Judge Matthew S. Evans presiding. Prior to the escape appellant was legally incarcerated at the Maryland House of Correction in Anne Arundel County; however, the elopement occurred while the appellant was in Baltimore City on a work release program. The only issue on appeal is whether the appellant’s contention raises a question of jurisdiction or venue.

Appellant concedes that if the question presented is one of venue, there was á waiver by reason of his failure to raise the issue in the trial court. Md. Rule 725 b. He contends, however, that the question is one of jurisdiction, which under the rule can be raised at any time.

Appellant’s contention in that regard is a three-step process. First, he states that the jurisdiction of the Circuit Court for Anne Arundel County is derived from § 20 of Art. IV of the Constitution of Maryland. That section provides that Circuit Courts “shall have and exercise, in the respective counties, all the power, authority and jurisdiction, original and appellate, which the present Circuit Courts of this State now have and exercise, or which may hereafter be prescribed by law.”

Appellant’s second step is contained in Md. Code, Courts & Judicial Proceedings Article § 1-501 which provides as follows:

“The circuit courts are the highest common-law and equity courts of record exercising original jurisdiction within the state. Each has full common-law and equity powers and jurisdiction in all civil and criminal cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal.”

Appellant’s final step is based on Md. Code, Art. 27, § 139 which provides:

“If any offender or person legally detained in the * * * house of correction * * * in this State, shall escape, he shall be guilty of a felony and on conviction thereof by the Criminal Court of Baltimore City or by the circuit court of the county in which the escape takes place, be sentenced to confinement * * * for such additional period * * * as the court may adjudge.”

Appellant argues that this section confers sole jurisdiction in the Criminal Court of Baltimore for escapes actually occurring in Baltimore City and that therefore the Circuit Court for Anne Arundel County is without jurisdiction to hear his case under § 1-501 of the Courts and Judicial Proceedings Article.

Thus appellant’s precise contention is that this statute places jurisdiction, as opposed to venue, exclusively in the county where the elopement takes place. We do not agree.

At the outset we point out the statute does not address itself to jurisdiction but only to the place where a case is to be tried. The distinction between venue and jurisdiction has been pointed up in many cases. The Court of Appeals in Urciolo v. State, 272 Md. 607, 325 A. 2d 878 (1973), discussed jurisdiction:

“The term ‘jurisdiction’ as applied to criminal courts means the power to inquire into the facts, to apply the law and to declare the punishment for an offense in a regular course of judicial proceedings.” Id. at 9.

Regarding general venue principles, this Court stated in Stewart v. State, supra at 348:

“Venue refers to a particular place or county in which a court of appropriate jurisdiction may properly hear and determine the case in the first instance. 4 Wharton, Criminal Law and Procedure § 1508, at 15-16 (Anderson ed. 1957, Supp. 1974). Simply defined, venue is ‘the place of trial.’ W. Blume, The Place of Trial of Criminal Causes, 43 Mich. L. Rev. 59, 60 (1944).”

Other examples of this distinction can be found in Cole v. State, 232 Md. 111, 194 A. 2d 278 (1963); Medley v. Warden, 210 Md. 649, 123 A. 2d 595 (1956); Kisner v. State, 209 Md. 524, 122 A. 2d 102 (1956); Bailey v. State, 16 Md. App. 83, 294 A. 2d 123 (1972).

The distinction was lucidly pointed out in Fireproof Construction, Inc. v. Brennerbell, Inc., 152 Ohio State 247, 89 N.E.2d 472 (1945):

“Jurisdiction must not be confounded with venue. Jurisdiction is the right to hear and determine a cause, but the term is used in the sense of power rather than in the sense of selection of place.. . . Venue signifies the geographic division where a cause shall be tried.” Id. at 474.

It is clear to us from the language in Md. Code, Art. 27, § 139, quoted above, that the legislature was simply locating the geographical division or divisions where escape cases are to be tried and not in any way defining or limiting the subject matter of cases which could be tried in the various courts. We hold that the question presented by appellant is one of venue, not jurisdiction, and that the appellant waived his right to object to the venue when he made no timely objection below. Rule 725 b. As the Court of Appeals stated in Kisner v. State, supra at 527:

“There is nothing new or startling in the proposition that although jurisdiction of the subject matter cannot be conferred by consent, venue or jurisdiction of the person may be waived in a criminal case.”

Judgment affirmed.

      . See, however, Stewart v. State, 21 Md. App. 346, 319 A. 2d 621, (1974), cert. granted, 272 Md. 749, July 26, 1974, in which we held venue under this statute to be either where the institution was located or the elopement occurred.