author: Lowe, J.,

text:
    PRIDE MARK REALTY, INC. v. CARL B. MULLINS et ux.
    [No. 649,
    September Term, 1975.]

      Decided March 3, 1976.

      The cause was argued before Thompson, Moylan, Menchine and Lowe, JJ.

      Josef B. Brown and Richard, E. Ekstrand, with whom were Reichelt, Nussbaum & Brown on the brief, for appellant.

      Joseph C. V. Ferrusi for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Despite opinions expressed to the contrary, most appellate courts try to meet, rather than to avoid, the issues raised upon appeal. Perhaps on too many occasions, particularly when the questions are intriguing, we have succumbed to the siren’s song, and treated issues raised here but improperly preserved below. The issue here discussed is of that nature, enticingly interesting but improperly preserved. Though initially tempted, we, like Odysseus, have lashed ourselves to the foremast to avoid the consequences of succumbing to appellant’s seductive song.

A jury of the Circuit Court for Prince George’s County returned a verdict against appellant, a realty corporation, in the amount of $17,355.00 for having negligently procured the sale of a property without having verified that the seller was the sole owner. The crux of the issue before the jury was whether appellant owed appellees, the buyers, a duty and, if so, whether that duty was violated.

At the close of the plaintiffs’ (appellees’) case, defendant (appellant) moved for a directed verdict because:

“There is no testimony showing the duty owed by the defendant to the plaintiff.”

Judge James F. Couch, Jr., who was presiding, did not agree.

He said:

“That is a matter of law and I found it. I am sorry but — are you aware of it?

MR. BROWN: No.

MR. FERRUSI: A statute.

THE COURT: There is a statute involved and a code of ethics which establishes by the statute a standard of care which spells out that the licensee, a real estate man, is required to acquaint himself with all the facts.

MR. BROWN: All of the facts that I am aware of.

THE COURT: That makes a question for the jury. That does establish the standard of care.”

At the close of its own case, appellant renewed its “previous motion,” presumably for the same reason as when it first moved for a directed verdict. The motion was denied as to the negligence count (although, because of a lack of evidence, the judge did not permit a deceit count to go to the jury). Appellant’s single issue on appeal relates to the instruction Judge Couch subsequently gave to the jury:

“Did the Trial Court Err When, in Its Instructions to the Jury, It Set, as a Matter of Law, as the Standard of Care for a Real Estate Broker, the Provisions of Article 56, Section 224 of the Annotated Code of Maryland and the Code of Ethics of the Real Estate Commission?”

After instructing on general legal principles, Judge Couch narrowed the question to be decided by discussing with the jury the definition of negligence. He explained that:

“Broadly it is defined as doing something by a person which a reasonably prudent person, under the similar or like circumstances that the defendant was in, would not have done; or, conversely, doing something by a defendant which a reasonably prudent person with the same circumstances would not have done under those same or similar circumstances.”

He then set forth his interpretation of the standards of a reasonably prudent person in appellant’s role:

“And that may sound like so many words to you, and you may decide, ‘How am I going to decide whether somebody is negligent or not other than trying to guess what a reasonably prudent person would have done?’ In most cases, and this is no exception, there is some help in the sense that it has been provided by the legislature that the standard of care in the operation of business by a real estate agent or a broker has been fairly well set out before you. The Court says to you as a matter of law that it is required of one who does operate a real estate business, his own business or as a licensee, normally holding a real, estate license, that that person must disclose or ascertain and disclose to any person with whom the licensee is dealing any material fact, data or information concerning or relating to the property with which such licensee is using, which such licensee, either knew or should have known.
That establishes the standard of care against which a real estate agent or real estate broker is measurable.
It is further provided that the licensee should make a reasonable effort to ascertain all of the material facts concerning every property for which he accepts an agency so that he may fulfill his obligations to avoid error, exaggeration, misrepresentation or concealment of material fact.”

At the conclusion of his instructions, the judge asked counsel:

“Very well, gentlemen. Are there any exceptions?”

To which appellant replied:

“No exceptions, Your Honor.”

One could hardly envision a clearer failure to comply with Md. Rule 554 d, which states in pertinent part:

“If a party has an objection to any portion of any instruction given, ... he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, ... to which he objects and the ground of his objection. . . .”

Appellees declined in their brief to meet the substantive question raised by appellant. They not only asked that we “dismiss the appeal” but questioned our right to consider it. They pointed out that § e of Md. Rule 554 says:

“Upon appeal a party in assigning error in the instructions, shall be restricted to (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the grounds of objection distinctly stated at the time, and no other errors or assignments of error in the instructions shall be considered by the appellate court.” (Emphasis added).

Failure to Object

Appellant did not reply by brief to appellees’ procedural contention that the appeal should be dismissed. At argument, however, appellant contended that the trial judge was fully aware of the principles of law advocated by counsel for the defendant before the instructions were given as a result of the motions for directed verdict. Therefore, the motions for directed verdict provided a “substantial compliance with the requirements” of Md. Rule 554 d and with e as well. It cited Merritt v. Darden, 227 Md. 589 for that contention and argued that, as in Merritt, “. . . inasmuch as . . . the trial judge was fully aware of the principles of law advocated by counsel for the defendant before the instructions were given, . . . [the motion for a directed verdict] was [in] substantial compliance with the requirements of the rule, and that what was done was sufficient to preserve the right of the defendant to a review by this Court under Rule 554 e.” Id. at 597-598. Furthermore, appellant pointed to our own opinion in Kowalewski v. Carter, 11 Md. App. 182 where “we [were] not persuaded to dismiss the contention on what we believe[d] in the circumstances [t]here to be a fine distinction.” Id. at 192.

We note that, in both cases cited by appellant, when the trial judge called for exceptions at the conclusion of the charge, some affirmative exception was taken. Each case turned not on whether the exception was taken, but on whether the grounds therefor were sufficiently specified to conform to the rule. Merritt, 227 Md. at 597; Kowalewski, 11 Md. App. at 192. In Kowalewski, no formal ground was stated when the exception was taken. In Merritt “ . . . counsel for the defendant, in excepting to the instructions, stated that he relied on the objections he had made when the charge to the jury was discussed at the preinstruction conference.” Id. at 595. In the instant case, no exception at all was taken. To the contrary, appellant expressly stated that it had none. The Court of Appeals has stated most emphatically that it:

“ . . . will only concern [itself] on appeal with the exceptions to the charge filed by the objecting party at the conclusion of the charge itself.” (Emphasis added). Greenbelt Coop. Pub. Ass’n v. Bresler, 253 Md. 324, 365, citing Jones v. Federal Paper Bd. Co., 252 Md. 475, 490.

Therefore, in order to be in “substantial compliance” with Rule 554, some exception must be made following the instructions. Furthermore, the Court of Appeals has used language preclusive of the appellate court’s right to review instructions challenged on appeal but not objected to below:

In Levine v. Rendler, 272 Md. 1, 13 and in S & S Bldg. Corp. v. Fidelity Storage, 270 Md. 184, 189, the Court said “the point is not before us for review.”
In Barwood, Inc. v. Georgi, 253 Md. 29, 31, the Court said that because of a failure to except, Rule 554 e “precludes our consideration of their complaint.”
In Jones v. Federal Paper Bd. Co., 252 Md. 475, 490, as in Hill v. Coleman, 218 Md. 1, 2, the Court held that “there is nothing before us for review on these issues. . . .”
In Goldman v. Johnson Motor Lines, 192 Md. 24, 30 the Court held that, because of the failure to comply with the rule, it was “unable to pass upon that question on appeal.”
Finally, in Barone v. Winebrenner, 189 Md. 142, 146 and in Smith v. Carr, 189 Md. 338, 341, the Court found that in the absence of an objection it is “prevented on appeal from considering errors in the instructions given in [the] case.”

These cases seem to indicate that we are proscribed from reviewing a lower court’s instructions to the jury unless objection is made after they are given. The strictness of these rulings requiring exact adherence to Rule 554 e would seemingly leave no room for lingering doubts about the absoluteness of the application of the rule. We founder, however, upon an exception to the strict application of this rule which we find in an earlier case, State v. Wooleyham Transport Co., 192 Md. 686. There, no objection was made following the instructions. However, the trial judge in Wooleyhan had certified to the Court of Appeals that the particular objection was made to him and was overruled in chambers after he agreed to use the objectionable prayer as part of his instructions — but before the instructions were given. Reasoning that the purpose of the rule had been satisfied, the Court of Appeals decided to consider the question raised on appeal:

“The purpose of requiring the objection to any part of the charge to be presented to the trial judge before the jury retires is to give the trial judge an opportunity to amend or supplement his charge if he deems an amendment necessary. Fisher v. Baltimore Transit Co., 184 Md. 399, 402, 41 A. 2d 297. In the case before us the trial judge certified that the particular objection was made to him before he granted the prayer and delivered the charge to the jury, which he overruled. He specifically had the benefit of that objection before the jury retired. The only thing out of order in this case was the failure to have the stenographer in chambers to take down the objection. This was later formally done at the suggestion and with the approval of the trial judge. Rule 6, Sub-section (c) and (d), supra, did not contemplate the dismissal of an appeal under the circumstances in this case. The trial judge passed on the question, after objection, before the jury retired and the question is before us here.” (Emphasis added). State v. Wooleyhan Transport Co., 192 Md. at 689-690.

The Issue on Appeal.

In the case at bar, appellant contends, as was contended in Wooleyhan, that the issue inherent in the instruction to which appellant failed to object (ie., whether the statutory standard could be used in a negligence case) was already before the judge, satisfying the requirement that the judge have the benefit of the objection in time to correct any error in his instructions. Although the trial judge did not certify to this as was done in Wooleyhan, the issue was before him on the motions for directed verdict as is reflected in the record transcript. Thus, at first blush, Wooleyhan seems to provide us with an analogous means to consider the issue raised on appeal based upon the theory of substantial compliance with the Rule.

Stare Decisis

" ‘The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life,’ White v. King, 244 Md. 348, 354, 223 A. 2d 763 (1966).” Hearst Corp. v. St. Dep’t of A. & T., 269 Md. 625, 643-644.

Reliance upon such circumstantially restricted authority as Wooleyhan is an uncertain practice at best, but especially here since that case has been undermined by subsequent decisions of the Court of Appeals. Within six years of the Wooleyhan holding that an objection in chambers (before instructions and not of record) sufficed to permit the issue to be considered on appeal, the Court in Ritterpusch v. Lithographic Plate, 208 Md. 592, 602, rejected a similar argument and stated that:

“Clearly, the controlling objection and the one to which appellate review is restricted, is that made after the charge has been delivered.” (Emphasis added).

“Precise Rubrics”

Seeking guidance in determining which direction to follow, we are reminded that the Court of Appeals over the past decade and a half has increasingly inclined toward compelling strict compliance with its rules. In Brown v. Fraley, 222 Md. 480, 483, the measured restraint used by Chief Judge Bruñe in discussing the importance of adherence to the Rules should have pointed the direction to the observant and given pause to the wary:

“The Rules are established to promote the orderly and efficient administration of justice and are to be read and followed. Those here involved, we think, are not difficult to comprehend or to follow, and we do not wish to encourage such errors as have occurred here. . . .”

But the observant may have been diverted and the wary relieved as they read on to find that the Court, noting that dismissal was permitted but not mandated, chose to hear the case in spite of the infraction. Following Brown v. Fraley, but still perhaps in a less complex era, the Court, from time to time, has viewed infractions with leniency out of consideration for the litigants.

As people and problems increased in number and complexity, the Court of Appeals was no longer able to indulge in the luxury of leniency. In addition, perhaps, the indignity of circumventing its own rules in order to protect litigants’ rights jeopardized by careless practitioners, caused the Court’s “measured restraint” to burst forth in obvious impatience. In Lewis v. Germantown Insur. Co., 251 Md 535, 536-537, the Court said:

“We sometimes wonder if the bar ever reflects upon the reasons why we have adopted and promulgated rules of practice and procedure. We wonder also how many practitioners pay any attention to what we have said about these rules. . . . Thus far, in enforcing the Rules, we have been reluctant to make use of our powers of remand and dismissal, more out of consideration for litigants than for members of the bar. Of late, it should be noted, we find ourselves becoming somewhat less considerate of the plight of litigants whose obligation to know and comply with the Rules, at least in theory, is no less than that of the attorneys they retain to represent them. . . .”

Although prior cases had “reminded” both bench and bar, then “twitted” and “chided” them, Isen v. Phoenix Assurance Co., 259 Md. 564, 570 is credited with finally drawing the line in rigidly applying the rules as “precise rubrics.” In their oft quoted admonition, the Court made no attempt to obscure its annoyance with both bench and bar for their failure to be aware of the rules and apply them:

“That we have chosen once more to twit both bench and bar in this regard should not provoke speculation that we have done so for any reason other than to focus attention upon the Rules and to remind all hands that they are not guides to the practice of law but precise rubrics ‘established to promote the orderly and efficient administration of justice and [that they] are to be read and followed.’ ”

It could not have been lost upon the bench and bar that even after the lecture in Isen, the Court overlooked counsel’s disregard for the rules in that case and “elected not to dismiss the appeal.” However, at what may have been the breaking point, the Court repeated its warning issued two years before in Lewis v. Germantown Insur. Co., supra, that:

“It must not be supposed, however, that the same degree of forbearance will be displayed, in the future, in respect of a similar disregard of the Maryland Rules.” Id. at 543.

Ultimately the inevitable occurred. The leniency to which the bar had become accustomed came to an abrupt halt, first, in Robinson v. Bd. of County Comm'rs, 262 Md. 342, 346, and most recently in Eastgate Associates v. Apper, 276 Md. 698.

In Apper v. Eastgate Associates, 28 Md. App. 581, 585-586, this Court relied upon Stitzel v. Kurz, 18 Md. App. 525, cert. den. 269 Md. 761, to justify considering an appeal of “substantial merit” under Rule 1071. We fully recognized that the appeal was technically premature under Md. Rule 552, § e: however, we forbore dismissing the appeal on the technicality that the lower court judge, after having directed a verdict, had failed to “ . . . instruct the clerk to enter such verdict, and to note that it has been entered by the court’s instruction. . . .” The reasons we expressed for overlooking the noncompliance below' as had been done in Dackman, 252 Md. 331, was:

“to save judicial time and unnecessary [litigants’] expense and in the belief that our action is in the best interest of the administration of justice.” Apper v. Eastgate Associates, 28 Md. App. at 586.

Upon reversing us, the Court of Appeals made it clear that it would permit no further flexibility in the interpretation of its rules.

Faced with the decision of whether to strictly apply the rule or rely on the Wooleyhan rationale to permit us to decide the substantive question presented, we derive from Eastgate Associates that the Court of Appeals is now demanding strict compliance with the rules. We shall conform to that stricture. We, therefore, refuse to consider the assignment of error in the instructions because appellant has not complied with Rule 554.

Circumvention Argued but Not Briefed

Appellant argued before us, in response to a question by the Court, that it should be allowed to rely upon its motions for directed verdict in order to raise the question of sufficiency of the evidence on appeal and thus reach the issue of w'hether the statutory standard of care used by the Court was proper. In Meyer v. Gyro Transp. Systems, 263 Md. 518, 532-533 the Court held that an issue was not waived even though raised for the first time by the Court at oral argument and neither briefed by appellant nor tried or decided by the lower court. On the other hand, in Comptroller v. Aerial Products, 210 Md. 627, 644-645, the Court held that a question not presented or argued in appellant’s brief was not before it even though it was brought to the attention of the Court during argument. See also Hyde v. State, 228 Md. 209, 218. Our Rule 1046 f seems to permit us similar discretion in reaching issues not briefed but raised at argument:

“This Court may decline to hear or consider oral argument on any legal proposition or question of fact not presented in the briefs.” (Emphasis added).

To the extent that we have such discretion, we decline to exercise it to consider the issue of the standard of care applicable in this case. We interpret Eastgate Associates to mean that we should no longer indulge litigants by considering questions tangentially raised or mentioned in passing by brief or oral argument.

“Surely it is not incumbent upon this Court, merely because a point is mentioned as being objectionable at some point in a party’s brief, to scan the entire record and ascertain if there be any ground, or grounds, to sustain the objectionable feature suggested.” State Roads Comm. v. Halle, 228 Md. 24, 32.

Appellant here failed to preserve the issue by objecting to the instruction below, Md. Rule 554 d and e, and has waived the sufficiency of the evidence issue by failing to raise it in its brief. Harmon v. State Roads Comm., 242 Md. 24, 29.

“Appellants apparently misunderstood why the point was not ‘before us for decision.’... It was because of their failure, through lack of diligence or deliberate and considered action, to present it to the Court properly. Although the above mentioned contention was not specifically ‘before us for decision,’ the only reason that it was not was the fact that appellants by failing to raise and argue it in their brief waived the same. Maryland Rule 831, 831 C 2, 831 C 4; Comptroller of Treasury v. Aerial Products, 210 Md. 627, 644-645, 124 A. 2d 805; Mullan v. Mullan, 222 Md. 503, 161 A. 2d 693.” Nutter v. Baltimore, 232 Md. 210, 213.

There would be no need for appellate counsel if it were our role to review all records on appeal, seeking contentions of probable error to which we would then respond. Seldom would a case be concluded at the trial level for few litigants would fail to take advantage of such inexpensive review. Appellees’ counsel made a deliberate decision on behalf of his clients to cast all their eggs in one basket, relying on rules provided by the Court of Appeals. For an appellate court to use its discretion to reach and raise issues disregarded by counsel for appellants necessarily prejudices the result, not in favor of him who complies and relies upon our rules, but in favor of him who has not. That procedure treads dangerously near a judicial denial of due process.

It is unfortunate that future litigants who may face the standard of care question raised here must deal with the uncertainty of nisi prius precedent until we can properly speak to the question. In the past, to overcome the onus of appearing to avoid issues or relying too heavily upon technicalities of procedure, we perhaps too often have resorted to stretching the rules in order to reach questions not properly before us, particularly when the unpreserved allegation of error was not error at all. Unfortunately, by relaxing or circumventing the procedural rules, we also lull the bar into laxity in observing those rules in cases “as yet untried.” The mandate in Eastgate Associates, supra, provides a clear directive.

When an issue, although raised below, is not raised on appeal, it is not before us and we are as completely denied the right to review such question as if the appeal were premature or had not been taken at all. This appeal will be dismissed.

Judgment affirmed; costs to be paid by appellant.

      . Md. Code, Art. 56, § 224 provides that the Real Estate Commission may suspend or revoke the license of any real estate broker or real estate salesman who, after proper hearing, is “deemed to be guilty of:. . .
      (r) Negligence, or failure to disclose or to ascertain and disclose to any person with whom such licensee is dealing, any material fact, data, or information, concerning or relating to the property with which such licensee is dealing, which such licensee knew or should have known, or. . .
      (u) Violating any provision of a regulation or of the code of ethics theretofore adopted by the Commission.”
      The Code of Ethics of the Real Estate Commission provides in Article 4,
      “The licensee should make a reasonable effort to ascertain all material facts concerning every property for which he accepts the agency so that he may fulfill his obligation to avoid error, exaggeration, misrepresentation or concealment of material facts.”

        . The question hat the Court decided to consider in Wooleyhan was, whether the evidence of damages (in a wrongful death case) was sufficient to provide a jury question under the pecuniary loss rule. That question had been attacked below by a “demurrer prayer” which, at the time (1948), was comparable to a present day motion for directed verdict which is necessary to preserve the question of sufficiency of evidence. Cf. Webb v. Oxley, 226 Md. 339, 347; State v. Heffelfinger, 226 Md. 493, 496.

      . The pertinent portions of the motion at the end of plaintiffs’ case are as follows:
      “MR. BROWN: At this time on behalf of the defendant I would like to move for a directed verdict if we may approach the bench.
      THE COURT: Come up.
      (Whereupon, counsel approached the bench and the following proceedings were had out of hearing of the jury:)
      MR. BROWN: There is no testimony showing the duty owed by the defendant to the plaintiff.
      THE COURT: That is a matter of law and I found it. I am sorry but — are you aware of it?
      MR. BROWN: No.
      MR. FERRUSI: A statute.
      THE COURT: There is a statute involved and a code of ethics which establishes by the statute a standard of care which spells out that the licensee, a real estate man, is required to acquaint himself with all the facts.
      MR. BROWN: All of the facts that I am aware of.
      THE COURT: That makes a question for the jury. That does establish the standard of care.”
      At the conclusion of the defendant’s case, the original motion was renewed.
      “THE COURT: Mr. Brown, for the purposes of the record you have a motion?
      MR. BROWN: Yes. I would like to renew my previous motion for a directed verdict on both counts.
      THE COURT: Very well. Mr. Ferrusi, do you want to have anything to say?
      MR. FERRUSI: Well, I will object for the record, you know.
      THE COURT: Very well, the motion as to Count One, the negligence count, is denied, and the motion as to Count Two, the deceit count is granted on the basis that there is no evidence in the case showing that any omission of a material fact indeed was made with the intent to defraud, which is one of the five key elements in deceit.”
      In view of our result, we need not decide whether the propriety of the use of the statutory standard of care was sufficiently raised by objection, even if brought to us as a sufficiency of the evidence issue.

      . For example, in Eliason v. Funk, 233 Md. 351, 354, the Court held that Md. Rule 323 b did not apply to actions against public officers and that “the defense of immunity, or privilege, should be raised by the pleadings and not by a mandatory preliminary motion.” Nonetheless, the Court treated such motion as a demurrer presumably because it appeared that both parties had done so. In Myers v. Montgomery Ward Co., 253 Md. 282, in order to reach the issue, the Court chose to permit a demurrer in the trial court to be treated as if it were a motion for summary judgment, “although the [trial] court did not so state in its memorandum. . . "Id. at 289.

      . The Court of Appeals in Dackman v. Dackman, 252 Md. 331, 336, previous to Stitzel, reached the same result by invoking Rule 871, which is substantially the same as our Rule 1071.


source: Caselaw Access Project

license: Public Domain

text:
    ISAAC NEWTON JOHNSON and CHARLES TERRELL WALTERS v. STATE OF MARYLAND
    [No. 663,
    September Term, 1975.]

      Decided March 3, 1976.

      The cause was argued before Thompson, Moylan, Menchine and Lowe, JJ.

      Paul Mark Sandler, with whom were Cohan, Altman & Sandler on the brief, for appellant Charles Terrell Walters. Submitted on brief by Julius E. Schindler, Assigned Public Defender, for appellant Isaac Newton Johnson.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, John S. Holly day, State’s Attorney for Washington County, Darrow Glaser, Deputy State’s Attorney for Washington County and Robert W. Hamilton, Deputy State’s Attorney for Washington County on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Because the use of prior offenses in cross-examinations to impeach criminal defendants who choose to testify has been limited to criminal convictions, Mason v. State, 242 Md. 707, 710; Robinson v. State, 4 Md. App. 515, 532-533, it does not mean that the same limitation applies to the impeachment on cross-examination of all witnesses. Indeed, Cts. Art., §10-905 provides:

“(a) In general. — Evidence is admissible to prove the interest of a witness in any proceeding, or the fact of his conviction of an infamous crime. Evidence of conviction is not admissible if an appeal is pending, or the time for an appeal has not expired, or the conviction has been reversed, and there has been no retrial or reconviction.”

This limitation has been applied in both civil and criminal cases. However, this rule is sometimes mistakenly interpreted to mean that evidence of anything other than a criminal conviction is never admissible. In Neam v. State, 14 Md. App. 180, 188 we stated that “an unbroken line of cases, too numerous for complete citation, holds that this impeachment device is strictly limited to ‘convictions’ and that it is impermissible to reveal that a witness has been merely accused of or arrested for a crime.”

What is frequently overlooked, by the use of these overly broad statements of the rule, is that there is at least one circumstance where the fact that a witness is accused but not yet convicted of a crime may be revealed on cross-examination. In 1931, the Supreme Court held that the right of a defendant to confront witnesses against him, U. S. Const, amend. VI, includes the right to ask, on cross-examination, where the witness is residing in order to reveal if he is in the custody of the State because of pending criminal charges. In Alford v. United States, 282 U. S. 687, defense counsel asked a state witness “Where do you live?” The trial judge sustained an objection to this question on the ground that since the witness had not yet been convicted of a crime, the fact that he was currently in the custody of federal marshalls should not be brought out on cross-examination. Counsel argued that this fact should be revealed “ ‘for the purpose of showing whatever bias or prejudice he may have.’ ” In reversing the trial court, the Supreme Court pointed out:

“But counsel for the defense went further, and in the ensuing colloquy with the court urged, as an additional reason why the question should be allowed, not a substitute reason, as the court below assumed, that he was informed that the witness was then in court in custody of the federal authorities, and that that fact could be brought out on cross-examination to show whatever bias or prejudice the witness might have. The purpose obviously was not, as the trial court seemed to think, to discredit the witness by showing that he was charged with crime, but to show by such facts as proper cross-examination might develop, that his testimony was biased because given under promise or expectation of immunity, or under the coercive effect of his detention by officers of the United States, which was conducting the present prosecution. . . . Nor is it material, as the court of appeals said, whether the witness was in custody because of his participation in the transactions for which petitioner was indicted. Even if the witness were charged with some other offense by the prosecuting authorities, petitioner was entitled to show by cross-examination that his testimony was affected by fear or favor growing out of his detention.” 282 U. S. at 693.

The right to cross-examine such witness is for the purpose of exposing the witness’ motivation in testifying. Although the trial judge has wide discretionary control over the extent of cross-examination upon particular topics, the denial of cross-examination altogether, or its arbitrary curtailment upon a proper subject will be grounds for reversal. McCormick on Evidence, 2nd ed., p. 46. In Davis v. Alaska, 415 U. S. 308, 316, the Court stated:

“The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore Evidence § 940, p 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.”

It is important to note that such examination is permitted only for a limited purpose. Mr. Justice Stewart wrote a concurring opinion to emphasize that point in Davis, supra, at 321:

“. . . the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.” (Emphasis added).

He pointed out that the majority opinion limited the necessity of permitting such examination “to show the existence of possible bias and prejudice. . . .” Id. at 317.

The test of admissibility, therefore, is whether the question asked is directed at eliciting from a prosecution witness the fact that he may be under pressure to testify favorably for the State, as when he is under formal accusation, and/or incarceration awaiting trial. We do not mean to imply that any time a witness testifies against a criminal defendant his entire record of previous arrests becomes relevant to the inquiry. Only where there is some present possibility of coercion should such cross-examination be allowed. If it should appear that the cross-examination is directed simply at casting the witness in the suspicious light that falls upon anyone under formal accusation, the trial judge must not allow it. Yet cross-examination of witnesses in such instances is exploratory in nature and presumptively proper. The examiner need make no proffer as to the purpose of his inquiry:

“Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does not, in general, apply. ... It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. ... To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. ... In this respect a summary denial of the right of cross-examination is distinguishable from the erroneous admission of harmless testimony.” Alford v. United States, 282 U. S. at 692.

Apparently we must view objections to such exploratory questions with a jaundiced eye.

The Issue of Cross-Examination

The facts at issue in the case before us are remarkably akin to those in Alford v. United States, supra. Appellants, Isaac Newton Johnson and Charles Terrell Walters, were convicted by a jury in the Circuit Court for Allegany County of murder, attempted robbery with a deadly weapon, assault and the use of a handgun in the commission of a crime. A State’s witness testified that he was told by Walters that he and Johnson had participated in previous holdups and that they had planned one for the night in question but “it didn’t go down right. We had to shoot the man.” Counsel for appellant Walters asked this witness on cross-examination:

“Where are you living at the present time?”

The State objected to this question, explaining at the ensuing bench conference:

“This man is under indictment for three B & E’s, two larcenies, all of which occurred subsequent to this occasion, and he is incarcerated in the Washington County Jail. But the fact he’s (indecipherable) is the same as if the Defendants were on the stand.”

It is apparent that the counsel for the State applied the same restriction to cross-examination of a witness that is applicable to cross-examination of an accused. The colloquy that followed indicates that the court also fell under the same misapprehension. Upon finding that the witness, though presently accused, had never been convicted, the trial judge refused to permit appellant to show where the witness was “currently residing” for the reason that:

“I don’t believe you can do indirectly what you can’t do directly.”

The two issues decided in Alford, supra, were, therefore, precisely those before the court below. First, was the naked question, “Where are you living at the present time?”, proper cross-examination? And, secondly, was it permissible for the defendant to reveal by that device that criminal charges were pending against the witness, or could he only cross-examine as to actual criminal convictions?

Cross-Examination as to Residence

The Alford Court, at 692-693, said:

“The present case, after the witness for the prosecution had testified to uncorroborated conversations of the defendant of a damaging character, was a proper one for searching cross-examination. The question ‘Where do you live?’ was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment, to which cross-examination may always be directed.”

The right to cross-examine witnesses as to place of residence is generally recognized, 37 A.L.R.2d 737, although we are unaware of any case in Maryland enforcing that right. The importance of such seemingly unimportant information was reemphasized by the Court in Smith v. Illinois, supra, 390 U. S. at 131:

“The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”

This right may only be denied in the exceptional circumstance where a witness has been intimidated and is in genuine fear for his safety. Cf. Beasley v. State, 271 Md. 521.

Accused and in Custody as Motivation

An “additional” reason for eliciting the witness’ residence, according to Alford at 693, is to show that the witness was in the custody of law enforcement authorities, thus revealing a possible motivation to testify favorably for the State. Although far from clear in the record of the case at bar, we discern from the bench conference that appellant may have been unaware of his right to question the witness about pending cases. Thus, as observed by the court, he may have been trying to do indirectly what he thought he could not do directly, i.e., show that the witness was in jail pending trial but not yet convicted. Nonetheless, it was error for the judge to deny the right to ask about the witness’ residence, whether the denial was based upon his discretionary right to restrict exploratory questioning on irrelevant issues, or was based upon the court’s assumption that it was impermissible to reveal that the witness was under indictment and in the custody of the State. We hold, pursuant to the dictates of Alford v. United States, supra, that a criminal defendant has a right to inquire of a witness testifying against him where he lives and to elicit the fact that the witness is under indictment or in police custody in order to show the witness’ bias, within the limitations set forth above.

Harmless Error

Obviously cases have held that if sufficient evidence on the subject is otherwise admitted, the prejudice of an erroneous ruling on right to so cross-examine may be overcome, e.g., United States v. Teller, 412 F. 2d 374, cert. den., 402 U. S. 949; United States v. Carminati, 247 F. 2d 640, cert. den., 355 U. S. 883; and see Mills v. State, supra.

And indeed the State here so contends. It claims that if the preclusion of the cross-examination was error, it was harmless because the fact of the witness’ confinement in police custody was brought out subsequently by the following testimony elicited from the witness:

“Q Did you talk to Mr. Boone about this case?

A I was at the Washington County Jail, and he had just got done talking to Mr. Johnson, and he had come up to me and asked me if I was involved in this case as a material witness. I didn’t know what to say. I just said, ‘I don’t know nothing about it.’ ”

We do not agree that this was sufficient to overcome the judge’s error in sustaining the State’s objection to defense counsel’s residence inquiry. This statement neither expressed nor implied residence at the jail, temporary or permanent, since there is no indication of whether the witness was a visitor, resident or guest there. To the contrary, it seems to show his presence resulted from his role as a “material witness” rather than as an inmate.

The State also contended on appeal that Alford was not apposite because appellant’s underlying purpose in inquiring about his residence must have been “to show that he had been either charged or convicted of previous crimes,” because the appellant mistakenly thought the witness was on parole. We do not so read the testimony to which the State points. True, no express purpose for the inquiry was proffered, but as we have indicated, appellant is not required to do so since he has a right to explore in this area. Alford v. United States, 282 U. S. at 692. Indeed, if pressed to determine the purpose of appellant’s exploration, we would assume that he hoped to show the influence and pressure to testify favorably for the State upon a witness incarcerated pending a parole violation hearing. We. do not find the error harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18; Dorsey v. State, 276 Md. 638.

Walters

Appellant Walters raised two issues. The first we have treated and upon it we reverse. In the second we find no error. That issue questioned:

“Whether the extra judicial statement allegedly made by one of three people in Walters’ company, while driving past Hull’s store, that the store ‘might be an easy place to hit’, was improperly admitted into evidence when Claudis Barger, the witness who reported the statement, indicated that he believed the statement was made by Walters, but he was not positive?”

Appellant’s argument is undercut by the facts. The controverted testimony came in as a recital of a conversation among the witness, the appellant Walters and other occupants of an automobile. The fact that the witness was not certain that it was Walters who made the statement does not affect its admissibility, only its weight. Appellant’s entire argument is predicated on the presupposition that the statement was made by someone else.

Johnson

Appellant Johnson raised only one issue on appeal and that questioned the sufficiency of the evidence. Our review of the evidence shows that it included the testimony of three positive eyewitnesses who identified him as the gunman at the robbery scene. Even one would have been sufficient to warrant a finding of guilt by the jury.

Mandate

As indicated, we reverse the judgments convicting appellant Walters and remand the case for a new trial. However, we affirm the conviction of appellant Johnson because, though jointly tried, he did not raise the question of denial of cross-examination on his appeal either by brief, Md. Rule 1046 f, or at oral argument. State Roads Comm. v. Halle, 228 Md. 24, 32.

As to appellant Walters, judgments reversed.

Case remanded for a new trial.

One-half costs to be paid by Washington County.

As to appellant Johnson, judgments affirmed.

      . Kremen v. Rubin, 139 Md. 682, 692; Bonaparte v. Thayer, 95 Md. 548, 560; Nelson v. Seiler, 154 Md. 63, 68.

      . In McLaughlin v. State, 3 Md. App. 515, 524; Hurley v. State, 6 Md. App. 348, 355; Kable v. State, 17 Md. App. 16, 31; Burgess v. State, 161 Md. 162, 170. The following cases involved cross-examination of a defendant but have broad language, applying to all witnesses: Niemoth v. State, 160 Md. 544, 557; Duffy v. State, 151 Md. 456, 463-470.

      . The Maryland cases which state that indictments may never be used for impeachment do not fall within the Alford v. United States, 282 U. S. 687 exception because the criminal charges were not currently pending at the time the witness testified and thus there was no possibility of coercion to testify in exchange for favorable treatment from the State.

      . An example of objectionable cross-examination in this regard would be an attempt to elicit the nature of the offense, the amount of bond set, etc. The gravity of the charge is not material to the permissible inquiry as to possible inducements or coercive pressure which might cause a witness to falsely testify.

      . While recognizing both Alford, supra, and Smith v. Illinois, 390 U. S. 129, in a cryptic single sentence explanation, we treated the denial of that right as harmless error in Mills v. State, 12 Md. App. 449, 460.

      . “Q And where did you say you were living at the present time?
      A When I was working at The Hat?
      Q No, now.
      A Now? Well I had lost my house over this. My wife is staying with her parents in Mt. Alto, Pennsylvania. But I was living 321 Mitchell Avenue.
      Q Where are you living at the present time?
      MR. HOLLYDAY: May I approach the bench?
      BENCH CONFERENCE:
      MR. HOLLYDAY: This man is under indictment for three B & E’s, two larcenies, all of which occurred subsequent to this occasion, and he is incarcerated in the Washington County Jail. But the fact he’s (indecipherable) is the same as if the Defendants were on the stand.
      MR. MANGES: We’re entitled to know where he’s living. And also he’s on parole isn’t he?

        MR. HOLLYDAY: He has never been convicted to a crime in his life.
      MR. MANGES: Never been convicted?
      MR. HOLLYDAY: No sir.
      MR. MANGES: My information is he is . . . .
      MR. HOLLYDAY: But you can’t bring out. . . .
      MR. MANGES: He’s on parole.
      BY THE COURT: Then he’s surely been convicted.
      MR. HOLLYDAY: He was supposed to be arraigned in Frederick County tomorrow. He’s not been convicted.
      MR. MANGES: I understand he’s on parole.
      MR. HOLLYDAY: He is not. He is not. You can ask him if he’s ever been convicted of a crime.
      MR. MANGES: We feel we can show where he’s currently residing.
      BY THE COURT: I don’t believe you can do indirectly what you can’t do directly.
      MR. HOLLYDAY: I don’t object to him asking him if he’s ever been convicted of a crime, but I do object to ... .
      MR. MANGES: I want it on the record.
      End Bench Conference
      BY THE COURT: The objection of the State to the question is sustained.
      Q Have you ever been convicted of any crimes?
      A No sir.
      Q At no place at all?
      A No sir.” •

      . “Q Was there a time that Terry Walters made a comment to you about Hull’s Store?
      MR. MANGES: We object to leading questions. He’s already said now he didn’t.
      MR. HOLLYDAY: He said at that time.
      BY THE COURT: At that time.
      MR. MANGES: Object to the question, leading question.
      BY THE COURT: Yes. You can rephrase it.
      Q What conversations have you had prior to the shooting of Mr. Hull with Terry Walters in reference to the Hull’s Grocery Store?
      A At one time we was riding by there, and somebody in the car made a comment that might be an easy place to hit.
      Q Who was in the car when that was said?
      A There was three or four of us in the car.
      Q Were these Defendants in the car?
      A Yes sir.
      Q Now do you recall who made that statement?
      A I believe it was Terry. I’m not sure. I’m not positive of it.
      MR. MANGES: We move to strike.
      BY THE COURT: Be denied.”


author: Gilbert, J.,

text:
    ANNABEL WOLFE v. MADISON NATIONAL BANK
    [No. 696,
    September Term, 1975.]

      Decided March 3, 1976.

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

      Henry J. Noyes for appellant.

      Thomas E. Donahue, Jr., for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

This case, concerning the liability of a promissory note guarantor, after default on the guaranteed note by the maker thereof, presents a basic issue, perceptively delineated for the jury by Judge Samuel Barrick. The judge instructed the jury that the sole question before them was whether the guarantor, appellant, actually signed the guarantee agreement. A secondary matter concerning the amount of attorneys’ fees provided for in the guarantee has also been posited to us.

A “Joint Guarantee”, dated November 18,1971, securing a one hundred thousand dollar ($100,000) loan from Madison National Bank, appellee, to Abe Wolfe, appellant’s husband, contains the purported signatures of Abe Wolfe and his wife, Annabel Wolfe, the appellant. The agreement states that the guarantors:

“ . . . do hereby, jointly and severally, . . . unconditionally guarantee to the Madison National Bank [appellee], . .. the due and prompt payment of said loans and the due and prompt fulfillment of all obligations and liabilities of said borrower [Abe Wolfe] to the Madison National Bank . .. together with all expenses of enforcing or obtaining, or endeavoring to enforce or obtain, performance or payment thereof, including attorneys’ fees equal to 15 [fifteen] percent of the amount owed. . . . We further authorize any attorney to appear for us in any court of record and to waive the issuance and service of process and to confess judgment against us in favor of the holder of this note for such amount as may be unpaid thereon, plus interest and the aforesaid expenses and fees.”

By its terms, the guarantee agreement was to remain in effect “ . . . until such time as said Bank shall actually receive written notice of its withdrawal. ...”

Five days later, on November 23, 1971, a note evidencing the one hundred thousand dollar ($100,000) loan to Abe Wolfe was signed by him in his individual capacity. Collateral for the loan was a mortgage held by Fyne Poynt Realty Company, for property it had sold. Abe Wolfe was president of Pyne Poynt Realty. The note was renewed numerous times, and the same collateral was maintained on all renewals. The last renewal occurred on October 16, 1973, which was evidenced by a new note signed by Abe Wolfe, individually, and which matured on January 14, 1974.

A bank officer testified that at the time of the latest renewal of the note, the Bank was aware that the mortgage constituting the collateral was in default. It is clear from the record that Pyne Poynt Realty, in lieu of foreclosure on the mortgage, took back a deed for the property, thus releasing the mortgage, and this fact was known to the Bank. Notwithstanding Mr. Wolfe’s release of the mortgage and receipt of a deed for the property, the same collateral i.e., the mortgage on the property, was recited to be the collateral.

Payment of the latter note was not made on the due date and, on January 29, 1974, in accordance with the terms of the note and guarantee agreement, a confessed judgment was entered against Abe and Annabel Wolfe. The judgment was for an amount equal to the principal of the loan, plus interest, and ten percent (10%) attorneys’ fees which had been authorized by the terms of the guaranteed note. Subsequently, on June 21, 1974, the judgment was vacated as to Annabel Wolfe. The order to vacate the judgment was modified on June 28, 1974, so that the judgment continued “ as a valid and subsisting [j]udgment [as to Annabel Wolfe] until trial determination. . . .” Both orders were revoked, and a new hearing concerning the vacating of the judgment was held September 6, 1974. The confessed judgment was ordered vacated, but, on September 25, 1974, a new order was filed permitting the confessed judgment to “ ... be opened and continued . ..” until the time of trial rather than vacated.

A trial was conducted on May 12, 1975, in the Circuit Court for Montgomery County before Judge Samuel Barrick and a jury, to determine whether the appellant was liable under the guarantee agreement. At the close of all the evidence, the Bank was permitted to amend its pleadings, over objection, so as to change the claim for attorneys’ fees from ten percent (10%), as provided in the note, to fifteen percent (15%), as stated in the guarantee agreement.

The trial judge instructed the jury that “ . . . this is a fairly simple case in that it seems the only issue for you to decide is whether Annabelle Wolfe executed this joint guarantee.. . .” He further instructed the jury that if it found that Annabel Wolfe did sign the guarantee, then it should return a verdict for the Bank in the amount of the loan, plus interest, and including fifteen percent (15%) attorneys’ fees. The jury’s verdict was in favor of the Bank for $128,458.

Appellant contends that the trial judge erred “ .. . in limiting the jury deliberations to [the] one single and narrow issue” of whether appellant signed the guarantee agreement. Appellant also argues that the trial judge should not have instructed the jury that fifteen percent (15%) attorneys’ fees would be proper since the confessed judgment only called for ten percent (10%) attorneys’ fees and, in any event, there was no valid confession of judgment against the appellant.

We think the trial judge was correct in his instructions to the jury. Essentially, Judge Barrick said that the only disputed fact for the jury to resolve was the authenticity of the signature that appeared on the guarantee agreement. As a matter of law, under the evidence produced in this case, if the signature was found to be that of appellant, then appellant was liable for the loan, interest on the loan, and for the amount of the attorneys’ fees as stated in the agreement. Judge Barrick properly narrowed and separated the issues of law and fact in his jury instructions.

The Uniform Commercial Code, as codified in Md. Ann. Code, Commercial Law Art. § 3-307, applies to the commercial paper purportedly containing appellant’s signature. That section of the Code provides:

“(1) Unless specifically denied in the pleadings each signature on an instrument is admitted. When the effectiveness of a signature is put in issue
(a) The burden of establishing it is on the party claiming under the signature; but
(b) The signature is presumed to be genuine or authorized. . . .
(2) When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.”

Appellant did raise the issue of the effectiveness of her signature. The official comment to § 3-307 relates that “[t]he burden is on the party claiming under the signature, but he is aided by the presumption that it is genuine. . . .” “Presumption” is defined in Md. Ann. Code, Commercial Law Art. § 1-201 (31), to mean “ . . . that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.”

In this case, the jury was presented with the guarantee agreement which contained what appeared to be the appellant’s signature, clearly subscribed thereto. This evidence raised the presumption of genuineness. Although appellant testified at trial that she could not remember seeing the agreement previously or signing it at any time, she admitted that she sometimes signed documents at her husband’s direction, and she did not read what she was signing. Appellant conceded that the signature “ . . . look[ed] like ...” hers. Appellant further admitted that at a deposition, taken July 25, 1974, she had testified that the signature on the guarantee agreement was, in fact, hers. Appellant’s husband testified that he could not recall instructing his wife to sign the guarantee agreement. The other testimony neither refuted nor verified that appellant had signed the instrument. As we have previously noted, the evidence was submitted to the jury on the factual issue of whether appellant signed the agreement. Under the evidence, the jury could find, as they did, that the appellant had signed the instrument, and, thus, that the Bank was entitled to enforce the guarantee agreement.

We observe that as a matter of law the guarantee agreement obligated appellant to repay the loan, interest, and attorneys’ fees. Under Md. Ann. Code, Commercial Law Art. § 3-416, a “Contract of guarantor” is defined as: “(1) ‘Payment guaranteed’ or equivalent words added to a signature mean that the signer engages that if the instrument is not paid when due he will pay it according to its tenor without resort by the holder to any other party.” In the guarantee agreement bearing appellant’s signature, it is stated, “ . .. we [the undersigned] do hereby, jointly and severally, . . . unconditionally guarantee . . . due and prompt payment... .” (Emphasis supplied). See Art Plate Glass & Mirror Corp. v. Fidelity Construction Co., 194 Md. 110, 69 A. 2d 808 (1949).

With respect to the instruction on the attorneys’ fees, we think that basic contract principles resolve the question. The guarantee agreement is a contract between the appellant and the Bank. The “ . . . rule is that if there is no fraud, duress or mutual mistake, one who has the capacity to understand a written document who reads and signs it, or, without reading it or having it read to him, signs it, is bound by his signature as to all of its terms.” Binder v. Benson, 225 Md. 456, 461, 171 A. 2d 248, 250 (1961). See Rossi v. Douglas, 203 Md. 190, 199, 100 A. 2d 3, 7 (1953). Appellant testified that she is a high school graduate, she had been the manager of a small hosiery shop at age nineteen, and she had worked as a clerk-typist for the government. No contention is made in this case that appellant was unable to understand the guarantee agreement or that fraud, duress, or mistake occurred. The plain, clear, and unambiguous terms of the guarantee agreement indicate that if it became necessary to enforce the contract, and expenses were incurred, then the guarantor, appellant, would be liable for those expenses “ . . . including attorneys’ fees equal to 15 percent [15%] of the amount owed.” By appellant’s own guarantee contract with the Bank, she was obligated to pay fifteen percent (15%) attorneys’ fees. Recently, in Mortgage Investors v. Citizens Bank and Trust Co., 29 Md. App. 591, 349 A. 2d 647 (1976), we upheld a promissory note provision for attorneys’ fees because the contract was freely entered into by the parties. Similarly, in this case, appellant willingly entered the guarantee agreement. Since the Bank was enforcing the terms of both the guarantee contract and the guaranteed note, either amount of attorneys’ fees could have been claimed. Consequently, the amendment to the Bank’s pleading was permissible and the judge’s instructions that if the jury determined that appellant had signed the guarantee agreement, then the verdict should include fifteen percent (15%) attorneys’ fees, was proper.

The jury verdict was for $128,458. This sum included $100,000 as the principal amount of the note, $13,458 interest, and $15,000 attorneys’ fees. The judgment entered on the verdict provided for interest on the entire verdict from May 12, 1975. Interest should not be allowed upon that $15,000 portion of the verdict concerned with the attorneys’ fees as such fees are part of the costs and costs do not bear interest. Webster v. People’s Loan, Sav. & Deposit Bank, 160 Md. 57, 152 A. 815 (1931). We, therefore, modify the judgment to read: “Judgment in favor of plaintiff, Madison National Bank, against the defendant, Annabel Wolfe, for $113,458, current money with interest from May 12, 1975, and an attorney’s fee of $15,000, and costs.”

Judgment modified and as modified affirmed.

Costs to be paid by appellant.

      . Mr. Wolfe is not a party to this appeal.

      . The terms of the agreement allowed the guarantor to withdraw from the agreement, but the withdrawal would be effective only as to future loans and not to those theretofore incurred. It is beyond dispute that no such written notice was given in this case.

      . Regardless of the disposition of the collateral, in this case, the guarantee agreement authorized the Bank to exchange or surrender collateral “ . .. without notice to or further assent from . . .” the guarantors, and the guarantors agreed to “ ... remain bound upon this guaranty notwithstanding such changes, surrender and extensions” of collateral.


author: Orth, C. J.,

text:
    DONALD E. MULES v. MARYLAND RACING COMMISSION
    [No. 718,
    September Term, 1975.]

      Decided March 3, 1976.

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

      William F. C. Marlow, Jr. and W. Stanwood Whiting, with whom was Edward C. Covahey, Jr. on the brief, for appellant.

      Josef E. Rosenblatt, Assistant Attorney General, with whom were Francis B. Burch, Attorney General and Jon F. Oster, Deputy Attorney General on the brief, for appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, May 25,1976.

   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF THE CASE

The Federal Proceedings

On 18 December 1974, in the United States District Court for the District of Maryland, Donald E. Mules was found guilty by a jury of six violations of the laws pertaining to controlled dangerous substances. Motions for arrest of judgment, for judgment of acquittal, and for a new trial were filed on 26 December and denied, upon hearing, on 20 March 1975. Mules was thereupon sentenced to a total term of imprisonment for three years. He noted an appeal to the United States Court of Appeals for the Fourth Circuit. The judgments were affirmed in a per curiam opinion filed 19 January 1976. United States v. Mules, 532 Fed. 2d 752. In the usual course, the mandate will issue twenty-one days from the date of the decision, with thirty days thereafter permitted to petition the Supreme Court of the United States for writ of certiorari. Fed. R. App. P. 41 (a) and (b); Rules of Supreme Court, rule 22.

The State Proceedings

The federal proceedings had a collateral effect. For over two decades Mules had been licensed to practice veterinary medicine in Maryland. Agricultural Art. § 2-301 through § 2-313. For some years he specialized in equine veterinary medicine. The Maryland Racing Commission (Commission) was created and established by the General Assembly as part of the Department of Licensing and Regulation. Its jurisdiction, supervision, powers and duties, subject to the power and authority of the Secretary of Licensing and Regulation, extend to all persons, associations and corporations conducting any meeting in Maryland whereat horse racing shall be permitted for any stake, purse or reward. Code, art. 78B, § 1. The Commission has “full power to prescribe rules, regulations and conditions under which all horse races shall be conducted within the State of Maryland.” Code, art. 78B, § 11 (a). Under that power, it duly adopted, pursuant to Code, art. 41, § 9, rules governing thoroughbred racing. Commission Rule 09.10.46.08 provides:

“No Veterinarian shall be allowed to practice at the race track of any Racing Association under the jurisdiction of the Commission until such Veterinarian shall have obtained a license from the Commission. Such license must be applied for and issued annually. Such license may be revoked or suspended, for cause, by the Commission.”

Mules was first issued a license by the Commission on 13 April 1967 to practice veterinary medicine at the various race tracks in this State. Thereafter, the Commission issued him a license for each calendar year through 1974.

The Proceedings Involving the Stewards

Code, art. 78B, § 5 (b) requires that there be three Stewards at every race meeting. Commission Rule 09.10.44.10 grants the Stewards the power and imposes on them the duty to regulate and govern the conduct of all. . . persons attendant on horses during, before and after races.” Commission Rule 09.10.44.22 provides:

“If the Stewards shall find that any person licensed by the Commission has violated any of the Rules and Regulations of the Commission or has been involved in any improper turf practice, they may exclude such persons from the grounds, or any portion of such grounds, of the association conducting the meeting or the grounds of any other association under the jurisdiction of the Commission or by suspension from acting or riding during the meeting, or for a period not exceeding 20 days after the meeting, or by fine not exceeding $200, or by both; and, if they consider necessary, any further punishment or additional fine, they shall promptly refer the matter to the Commission.”

At the time the convictions of Mules were rendered in the federal court, a meet was being held at Laurel. On 21 December 1974, after the convictions in the federal court but before the imposition of sentence thereon, the Stewards at the Laurel meet ordered that Mules be suspended because of the federal convictions and denied him the privileges of the grounds during the suspension. Mules could have appealed to the Commission. Commission Rules 09.10.44.22-1-2-3-4. He filed, however, an action in the Circuit Court for Baltimore County, Equity No. 82051, to enjoin the Stewards from denying him access to the race tracks in Maryland or from otherwise interfering with his practice of veterinary medicine, until final determination of the federal criminal proceedings. On 9 January 1975, the Circuit Court for Baltimore County denied the request for an injunction. The chancellor found that the Stewards had “inherent power” under the Commission Rules to control those who have access to the tracks, including a licensed veterinarian “if the actions of such person have or tend to have an adverse effect on the conduct of racing in the State.” He concluded that, in the circumstances, the Stewards could suspend Mules during the current meeting and for 20 days thereafter. The current meeting at Laurel ended 1 January 1975. Thus, the suspension was effective for 20 days after that date. The chancellor cautioned: “It is imperative, however, that the Maryland Racing Commission set a prompt hearing for the purpose of affording Dr. Mules an opportunity to present his case.”

The Proceedings Involving the Commission

The opportunity for Mules to present his case to the Commission came through his application to practice as a veterinarian at the tracks during the year 1975. Question 6 of the application asked: “Have you ever been denied a license to work as a veterinarian by any Commission or Racing Association?” Mules struck out the words “by any Commission or Racing Association”, placed a check mark in the box designating “Yes”, and inscribed: “By Stewards at Laurel Race Course.” He explained, “Having been found guilty in U. S. District Court for the District of Md. Dec. 18, 1974.”

Commission Rule 09.10.24.02 provides:

“The Commission may refuse to issue or renew a license or may suspend or revoke a license issued pursuant to this section if it shall find that the applicant, or any person who is a partner, agent, employee or associate of the applicant, has been convicted of a crime in any jurisdiction, or is associating or consorting with any person or persons who have been convicted of a crime or crimes in any jurisdiction or jurisdictions, or is consorting or associating with, or has consorted with bookmakers, touts or persons of similar pursuits, or has himself engaged in similar pursuits, or is financially irresponsible, or has been guilty of or attempted any fraud or misrepresentation in connection with racing, breeding, or otherwise, or has violated or attempted to violate any lav/ with respect to racing in any jurisdiction or any rule, regulation or order of the Commission, or shall have violated any rule of racing which shall have been approved or adopted by the Commission, or has been guilty of or engaged in similar related or like practices.”

On 13 January 1975, the Commission held a hearing on the application. See Commission Rule 09.10.10.01. After testimony was received and argument heard, Commissioner Carle A. Jackson, according to the transcript of the proceedings, moved that “we deny the application of Dr. Mules and deny him the privileges of the grounds.” The motion was seconded by Commissioner Donald S. Levinson and a vote was taken. Commission Chairman J. Newton Brewer, Jr. said: “The record will show that Commissioners Jackson, Brewer and Levinson voted to deny Dr. Mules his license.” A document entitled “Findings of Fact and Order”, hereinafter referred to as “Commission Opinion”, is reproduced in the Joint Record Extract. It apparently was taken from a xerographic copy of a document attached to the Petition filed by Mules pursuant to Maryland Rule B2, § e. Alleged to be labelled “Exhibit #1” but actually labelled “Exhibit A”, it is made a part of the Petition. The document ends with an “Order” reading: “It is the day of January 1975, ORDERED by the Maryland Racing Commission that the application for a veterinarian’s license of Donald Elmer Mules be denied and that he be denied the privileges of the grounds.” Not only is the date incomplete, but the document is not subscribed, although there are lines for the signatures of the three Commissioners and the Secretary. There is no executed original or copy of an executed original of this document in the record transmitted to us.

The Appeal Proceedings in the Circuit Court for Baltimore County

On 17 January 1975 Mules filed an Order of Appeal in the Circuit Court for Baltimore County, requesting that the Clerk “Please enter an Appeal from the decision of the Maryland Racing Commission dated January 13, 1975 in the above-captioned matter.” Md. Rule B2, § a. He filed a petition as required by Md. Rule B2, § e, setting forth the action appealed from, the error committed by the Commission in taking its action, and the relief sought. The action appealed from was the refusal of the Commission to issue him a license to practice veterinary medicine for 1975 at the Maryland Race Tracks, and the denial of access to the Tracks. The errors alleged to have been committed by the Commission were basing its action on the conviction of him of a crime when he had not been convicted of a crime within the meaning of Commission Rule 09.10.24.02, and basing its action on his guilt of or attempting “any fraud or misrepresentation in connection with racing, breeding, or otherwise . . .” under that Rule. The relief sought was the reversal of “the ruling of the Maryland Racing Commission denying [him] access to the Maryland Race Tracks and further denying [his] application to practice veterinary medicine at the Maryland Race Tracks for the calendar year 1975.”

The appeal was heard by the Circuit Court for Baltimore County starting on 23 May 1975. It continued intermittently thereafter. On 21 July the court filed an opinion and order. The order read: “The decision of the Maryland Racing Commission dated January 13, 1975, is affirmed; the court costs shall be paid by the appellant, Dr. Mules.” Mules noted an appeal to the Court of Special Appeals from that judgment.

ISSUES FOR DECISION

Although, as we have indicated, the copies of the Commission Opinion in the record before us are not complete as they lack a date and the signatures of the Commissioners, it is manifest from the opinion of the court below that it was completely satisfied that the Commission had made the findings of fact and issued the order on 13 January 1975 as set out in the Commission Opinion. In any event, it is clear that the Commission refused to issue Mules a License for 1975 and that it denied him the “privileges of the grounds.”

The position of Mules has been consistent at all levels. Its essence is that the Commission cannot take action against him on the basis of the federal court convictions until those convictions have become final. It seems that he considers “final” in accordance with the formula enunciated in Linkletter v. Walker, 381 U. S. 618 (1965), where the Court said, at 622, note 5: “By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed . . . .”

When Mules attacked the action of the Stewards in suspending his license by seeking to enjoin them from denying him access to the tracks or from otherwise interfering with his practice of veterinary medicine, it was on the ground that measures against him were precluded until final determination of the criminal proceedings. At the hearing before the Commission, Mules’ attorney, as pointed out in the Commission Opinion, “argued at length that the Commission should construe those references in its Rules to a ‘conviction of a crime’ to mean conviction after exhaustion of all appellate remedies.” At the appeal proceedings before the Circuit Court for Baltimore County, as noted by the court in its opinion, Mules maintained “that he should be permitted to continue his practice at the Maryland Tracks until he has exhausted his appeals from his criminal conviction.” On the appeal before this Court, he presents the question:

“Under Rule 09.10.24.02 of the Maryland Racing Commission which purports to allow the exclusion of any licensee of the Commission from the race tracks of this State upon ‘conviction of a crime,’ was it proper to bar the appellant, a veterinarian, from the tracks, upon the verdict and judgment in the United States District Court, where the appellant pursued a prompt and timely appeal therefrom?”

He argues that the action of the Commission was improper pending appellate determinations.

As consistent as Mules’ position have been the decisions thereon below. The chancellor in the injunction proceeding remarked: “I might add that in my judgment the fact that the case has not yet gone through the appellate procedures does not affect the fact that Dr. Mules has been convicted of a crime, which in and of itself shows he is not worthy of access to race tracks.” The Commission, in making its determination said: “While the Rules of Racing do not define ‘conviction of a crime’, -. . . the Commission’s broad discretionary powers permit it to conclude that a finding of guilt by a jury in the United States District Court meets the definition of a ‘conviction of a crime’.” Although pointing out that “the Commission’s powers to refuse to issue a license may be based on grounds other than conviction of a crime”, the Commission made clear that the basis of its action was the convictions. It declared: “In summary, the Commission believes that Dr. Mules’ conviction in the United States District Court is sufficient cause for the Commission to refuse to grant him a license in the exercise of its broad discretionary powers to control all aspects of racing.” It later repeated this view: “[I]t is the Commission’s conclusion that Dr. Mules’ conviction in the United States District Court is sufficient cause to deny his application for a veterinarian’s license.” The judge on appeal below was of like mind. Observing that the Commission concluded that the finding of guilty by a jury in the federal court met the definition of “a conviction of a crime” as used in the Rules, he said: “A fortiori is this true when, as the evidence now shows, the verdict of the jury of ‘guilty’ was converted into a judgment of conviction and sentence.” The issue of what is meant by “conviction of a crime” in the contemplation of the Commission Rules is now before us.

The question is, does the phrase “has been convicted of a crime in any jurisdiction”, as used in Commission Rule 09.10.24.02, contemplate that the provisions of the Rule may be invoked: (1) upon the entering of a verdict of guilty by a court or jury in a criminal action; or (2) upon the imposition of sentence on a verdict of guilty; or (3) upon the exhaustion of all direct appeal rights, that is when the judgment of conviction and sentence becomes final under the Linkletter formula.

The Mootness of the Case

The question whether the Commission was wrong in refusing to license Mules for the year 1975 would ordinarily be moot because it involves a license for a year which has ended. Comrs. of Vienna v. Phillips Co., 207 Md. 12, 19-20 (1955). We believe, however, that the circumstances here provide a justification for a conclusion of nonmootness. We adopt the rationale of Roe v. Wade, 410 U. S. 113 (1973). In Roe an action was brought for declaratory and injunctive relief respecting Texas criminal abortion laws which were claimed to be unconstitutional. The action was instituted by Jane Roe, unmarried and pregnant, who alleged that she was unable to obtain a legal abortion in Texas. The record did not disclose that she was pregnant at the time of the district court hearing or when the opinion and judgment were filed, and the rule in federal cases was that an actual controversy must exist at stages of appellate or certiorari review and not simply at the date action is initiated. It was suggested that the case had become moot because Jane Roe and all other members of her class were no longer subject to any pregnancy which existed when the action was filed. The Court said, at 125:

“But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be ‘capable of repetition, yet evading review’.”

The denial of a license to Mules could certainly be “capable of repetition, yet evading review,”'on the point he presents. If he applies for a license for 1976, and the application is denied, and he exercises his appellate rights, that denial may also become moot by the passage of the calendar year before appellate determinations. But even if we did not think that a conclusion of nonmootness was justified, we would be constrained to express our opinion in the issue. The Court of Appeals did so in Comrs. of Vienna v. Phillips Co., supra, despite the mootness of the case due to the fact that it involved a license for a year which had ended, “because of the continued vitality of the question and of the controversy and because the ordinance continues in force.” 207 Md., at 19. The question and controversy here have continued vitality and the relevant Rules continue in force. We shall look at the merits of the issue.

DECISION

The Commission refused to consider Mules’ convictions “in the simple terms of a failure in character or personal habits,” and declined to accept his suggestion that they were mere technical violations of the law. It noted that its concern “for the scrupulous and exact management of narcotic drugs is amply illustrated in its rules. . . .” It said that it “must view seriously the fact that these violations of, federal statutes involved the mismanagement and deceit in connection with a narcotic drug.” See note 10, supra. It considered “the failure to keep accurate records on a controlled substance such as cocaine as a serious breach of the standards that it requires of a veterinarian practicing at tracks under its jurisdiction.” It pointed out that it “has a continuing concern for the strict regulation and record keeping for all controlled substances that may be administered to thoroughbred horses.” The Commission therefore believed that although its Rules did not define “conviction of a crime”, “the import of the Rules when viewed with the Commission’s broad discretionary powers permit it to conclude that a finding of guilty by a jury in the United States District Court meets the definition of a ‘conviction of a crime’.” The court below on appeal was in complete agreement. We are also. We find that “conviction of a crime in any jurisdiction”, as used in Commission Rule 09.10.24.02, contemplates that the Rule may be invoked upon the entering of a verdict of guilty in a criminal action in a court of competent jurisdiction.

“Horse racing is an endeavor and undertaking that necessarily must be the subject of intensive, extensive and minute regulation.... It exists only because it is financed by the receipts from controlled legalized gambling which must be kept as far above suspicion as possible, not only to sustain and profit the racing fraternity but to feed substantial, although by today’s standards relatively few, millions to the State’s revenues. Not surprisingly the legislature has given the Commission full power to control racing.” Jacobson v. Md. Racing Comm’n., 261 Md. 180, 183 (1971). One of the ways the Commission controls racing is through its Rules. It may make such rules generally regulating all matters pertaining to horse racing, and regulating the conduct of all persons, individuals, associations, or corporations, holding or conducting horse race meetings within Maryland, and the conduct of all owners, trainers, jockeys, jockeys’ agents, grooms, or other persons, including veterinarians, who participate in racing at the meetings. Commission Rule 09.10.01.01. The manifest object of the Rules is to insure that horse racing “may be conducted fairly, decently and clean . . . .” Mahoney v. Byers, 187 Md. 81, 84 (1946).

In making our determination of the meaning of “convicted of a crime”, we are strongly persuaded by the view of the Commission. Not only is the general rule that courts are not permitted to substitute their judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken, Grosman v. Real Estate Comm’n., 267 Md. 259, 265 (1972), and see Code, art. 41, § 252 (d), but the authority of the Commission to construe its own Rules is compatible with the full power the General Assembly bestowed upon it to control horse racing. Further, it is patent that the interpretation adopted by the Commission is not only consistent with, but essential to, its function and duty to see that horse racing is conducted fairly, decently and cleanly. The nature of the crime here, as the Commission believed, clearly could bear a direct and substantial relationship to horse racing. To permit a person to practice veterinary medicine at the tracks, after being found guilty of such a crime, during the protracted period of time it takes to exhaust appellate procedures would be contrary to the public interest. We find support for the view that “conviction of a crime” is satisfied upon the rendering of a verdict of guilty in the Rules themselves. Commission Rule 09.10.56.18, sets out in full in note 9 supra, recognizing the need for prompt action to preserve the integrity of horse racing, provides that when a person subject to the jurisdiction of the Commission “is formally charged with violation of . . . any criminal statute of this or any other State, the Commission may suspend him until the charge has been tried, dismissed or otherwise disposed of.” Unless the charge is dismissed or otherwise disposed of, the suspension is authorized until the person is “tried” thereon. If “conviction of a crime” required exhaustion of all appeal remedies, there would be a vacuum between the trial resulting in a verdict of guilty and the “conviction.” During that period the suspension would not be in effect, and the Commission would be powerless to act. Patently, this was not the intent of the Rules.

Mules also claims that 09.10.24.02 of the Commission Rules is “void per se with respect to the phrase ‘convicted of a crime’, for overbreadth and vagueness” and that the application to him was “unauthorized, unreasonable, and invalid” because the misconduct attributed to him “was unrelated to the conduct of horse racing.” We have indicated that the Commission found that the crimes of which he was convicted were very much related to the conduct of horse racing and particularly so with respect to a veterinarian licensed to treat horses at the tracks. As the Commission pointed out, its concern was manifest from its Rules concerning controlled substances and medication and treatment of horses at the meetings. We are in full accord with the belief of the Commission. We find that the misconduct of Mules was related to the conduct of horse racing, and that the application of 09.10.24.02 to him was not, for that reason, unauthorized, unreasonable and invalid.

As to 09.10.24.02 being void per se with respect to “convicted of a crime” for overbreadth and vagueness, we note initially that the Court of Appeals has determined that, “except in rare instances, [the doctrine of vagueness] is applicable only in criminal cases.” Maryland National Capital Pk. & Pln’g. Comm’n. v. Rockville, 272 Md. 550, 559 (1974). The Court said:

“The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. . . . [N]o man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed, [emphasis added]” 272 Md. at 559, quoting U. S. v. Harriss, 347 U. S. 612, 617 (1954).

The Court of Appeals noted that in the rare instance of a civil statute held to be unconstitutionally vague, what had been imposed was the “ ‘exaction of obedience to a rule or standard which was so vague and indefinite as to really be no rule or standard at all.’ ” Small Co. v. American Sugar Ref. Co., 267 U. S. 233, 239 (1925) quoted in 272 Md. at 559.

In any event, 09.10.24.02 is not vague as applied to Mules. He was convicted of specific offenses, serious in nature, and related to the proper conduct of horse racing. He cannot maintain that some other veterinarian, who has been convicted of a mere traffic offense, could be refused a license to practice at the tracks. In other words, the application of the Rule is constitutional as to Mules, and he may not attack it on the ground that as applied to others under other circumstances, it might be unconstitutional. The Supreme Court expressed it thus in Broadrick v. Oklahoma, 413 U. S. 601, 610 (1973):

“Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in situations not before the Court.”

Or, as Mr. Justice Holmes said: “If there is any difficulty ... it will be time enough to consider it when raised by someone whom it concerns.” United States v. Wurzbach, 280 U. S. 396, 399 (1930). See United States v. Raines, 362 U. S. 17, 21-22 (1960). We have announced our accord with this principle and applied it. Colburn v. Colburn, 20 Md. App. 346, 354 (1974); Minner v. Minner, 19 Md. App. 154, 158 (1973). Mules supplies no valid reason to depart from it.

The scope of judicial review of actions of administrative agencies is delineated in Code, art. 41, § 255 (g). It contains eight reasons why a decision of an agency may be reversed or modified. None apply so as to give occasion to reverse or modify the decision here. The court below was right in affirming it.

Order of 21 July 1975 of the Circuit Court for Baltimore County affirmed; costs to be paid by appellant.

      . The United States v. Dr. Donald E. Mules, DVM, DEA Registrant #AM 1531309, Criminal Docket No. 74-0336-N.

      . Mules was charged under an eight count indictment and found guilty of the offenses presented in the 1st, 2nd, 4th, 6th, 7th and 8th counts: failing to keep and furnish complete and accurate records for cocaine as required by Title 21, U. S. Code, § 828 (a) (c) (2); failing to keep on a current basis accurate records for dispensing cocaine in violation of Title 21, U. S. Code, § 827 (a) (3) (b); knowingly and willfully making false and fraudulent representations to an agent of the Drug Enforcement Administration in violation of Title 18, U. S. Code, § 1-001; knowingly and intentionally furnishing fraudulent material information in the form of records required to be kept under Title 21, U. S. Code, § 843 (a) (4); and omitting material information from the record required to be kept under Title 21, U. S. Code, § 827 (a) (3) in violation of Title 21, U. S. Code, § 843 (a) (4).

      . The docket entry under date of 24 March 1975 reads:
      “Judgment: That the Defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of One (1) Year as to each of Counts Nos. 1 and 2, Imprisonment for a period of Three (3) Years as to each of Counts Nos. 4, 6, 7 and 8. Said sentence as to Counts Nos. 1, 2, 4, 6, 7 and 8 to run concurrently, making a total term of imprisonment of Three (3) Years; Upon a Jury Verdict of ‘Not Guilty’ as to each of Counts Nos. 3 and 5, a Judgment of Acquittal is entered by the Court, Order (Northrop, C. J. — Dated March 20, 1975)”

      . Formerly Code, art. 43, §§ 150-157. For what “practice of veterinary medicine” includes and does not include, see Agricultural Art. § 2-301 (f) and (g).

      . Maryland Agency Rules, .09 (Department of Licensing and Regulation) .10 (Maryland Racing Commission), hereinafter referred to as “Commission Rule”.

      . The propriety of the equity proceedings is not before us.

      . The Order was captioned: “Maryland Racing Commission v. Donald E. Mules, D.V.M.”

      . Mules sought to stay the action of the Commission. His motion to that effect was denied by the Circuit Court for Baltimore County upon hearing on 10 February 1975. Md. Rule B6, § a.

      . It is not clear what is meant by “privileges of the grounds.” Mules apparently construes it as denying him access to the tracks for he so complains in the Petition filed with his appeal to the Circuit Court. Commission Rule 09.10.56.18 reads:
      “When any person subject to the jurisdiction of the Commission is formally charged with violation of the racing rules or any criminal statute of this or any other State, the Commission may suspend him until the charge, has been tried, dismissed or otherwise disposed of. When a person subject to the jurisdiction of the Commission is convicted of a criminal offense, in this or any other State, or the United States, the Commission may rule him off.”
      Whether the Commission intended to “rule him off’, denying Mules any and all access to the tracks, or whether it intended to deny him merely the privileges of the grounds insofar as such privileges were necessary to the practice of veterinary medicine by him, was not established. In any event, Mules presents no question as to Commission Rule 09.10.56.18 in the appeal before us.

      . The Commission expressed its evaluation of Dr. Mules’ testimony:
      “The gist of Dr. Mules’ testimony before the Commission conveyed the highly technical nature of the crimes with which he was charged and found guilty in the United States District Court. However, the Commission must view seriously the fact that these violations of Federal statutes involved the mismanagement and deceit in connection with a narcotic drug. The Commission's concern for the scrupulous and exact management of narcotic drugs is amply illustrated in its rules and, therefore,' the Commission cannot view Dr. Mules’ conviction in the simple terms of a failure in character or personal habits.”

      . For a discussion of mootness as applied in the judicial decisions of this State, see State v. Siegel, 13 Md. App. 444, 471-472 (1971), affirmed 266 Md. 256 (1972). We said, 13 Md. App. at 472, n. 29:
      “The dismissal by courts of moot cases had been grounded at times on constitutional limitations of power. At other times they accept as a rule of decision governing the exercise of jurisdiction that a case which is moot will not be decided. In Lloyd [v. Supervisor of Elections, 206 Md. 36 (1954)] at 43 the Court found it unnecessary to decide whether its practice in dismissing appeals which were moot as to the parties, was because of a constitutional lack of power or whether it was the application of a rule of decision. It seems that the point is still left open. Board of Education v. Montgomery County, 237 Md. 191, 195; Board of Public Welfare v. Myers, 224 Md. 246, 251.”

      . A pseudonym.

      . When the Department of Licensing and Regulation was created as a principal department of the State government, Code, art. 41, § 221(a), the Maryland Racing Commission was included within it, Code, art. 41, § 221A (a). Section 221A (b) of art. 41 provided that the Department shall not have a board of review and that § 3C of the article, requiring that appeals from decisions of departments or agencies included within a department be heard by such a board, was inapplicable. Therefore, any party aggrieved by a final decision of the Commission is, by Code, art. 41 § 255 (a), entitled to judicial review as provided by § 255. But see, Code, art. 78B, § 10, as to licenses for the holding of a racing meeting. Proceedings for review shall be instituted in the circuit court of the county or in the Baltimore City Court, as the case may be, either where any party resides or has a principal place of business, § 255 (b). Review of any final judgment of those courts may be obtained by appeal to the Court of Special Appeals. Code, art. 41, § 256; Courts Art. § 12-308. Mules followed this course.

      . See, for example, subsections .04, .05 and .08 of Commission Rule 09.10.11 and subsections .02, .04, .06, .10, and .10-1 of 09.10.46.

      . In Comptroller v. Rockhill, Inc., 205 Md. 226, 234 (1954), the Court said:
      “There are several different classes of administrative rules. Some are legislative rules, which receive statutory force upon going into effect. Others are interpretative rules, which only interpret the statute to guide the administrative agency in the performance of its duties until directed otherwise by decisions of the courts. Some rules are merely rules of procedure. Others implement the statute by stating the policy by which the agency will be governed in the exercise of its authority.”
      We think that the Commission Rules are by nature legislative rules which received statutory force upon going into effect.

      . We observe that the authority of the Commission to refuse to issue or renew a license under Commission Rule 09.10.24.02 is discretionary. Thus, the nature of the crime of which an applicant is convicted may be considered by the Commission.

      . “Racing indeed is not ‘a strictly private business’.” Greenfeld v. Md. Jockey Club, 190 Md. 96, 104 (1948). “The state has at least two substantial interests to be served. It has a humanitarian interest in protecting the health of the horse, and it has a broader and more weighty interest in protecting the purity of the sport, both from the standpoint of protecting its own substantial revenues derived from taxes on legalized pari-mutuel betting and protecting patrons of the sport from being defrauded.” Hubel, et al. v. The West Virginia Racing Commission, 513 F. 2d 240, 243 (4th Cir., 1975.)

      . State v. Rappaport, 211 Md. 523 (1957), on which Mules heavily relies, held that a person whose sentence had been suspended after a verdict of guilty in a New York criminal proceeding had not been convicted for purposes of Code, art. 33, § 193. Rappaport does not compel a decision contrary to that which we have reached in the circumstances of the instant case.