author: Powers, J.,

text:
    C. DANIEL SAUNDERS v. JANE L. STRADLEY
    [No. 193,
    September Term, 1974.]

      Decided March 12, 1975.

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

      C. Daniel Saunders for appellant.
    No appearance or brief for appellee.
   Powers, J.,

delivered the opinion of the Court.

Prior to 15 December 1971, Kenneth M. Saunders and Catherine 0. Saunders, his wife, were the owners of a tract of land in Cecil County described as containing 38.50 acres, improved by a dwelling house and a barn. On that date they settled on a sale of the property to Jane L. Stradley, a real estate investor. The price was $100,000. From the record it appears that $29,000 was paid in cash at settlement and the balance of $71,000 by a note secured by a purchase money mortgage given by the buyer to Mr. and Mrs. Saunders. It was provided that $21,000 of the deferred purchase price, plus interest, was payable on 10 January 1972, and the remaining $50,000 was payable in monthly installments of $385.91, principal and interest, beginning on 15 January 1972, with the entire balance to be paid on or before 15 December 1981.

On 10 December 1973, C. Daniel Saunders, as assignee of the mortgage, filed in the Circuit Court for Cecil County an order to the clerk to docket a suit to foreclose the mortgage.

According to the advertisement later filed in the case, the sale was scheduled to be held on Saturday, 29 December 1973. On 21 December, Mrs. Stradley filed in the case a Petition To Enjoin Foreclosure Sale. The petition was signed by her attorneys, and signed individually by her. It contained her certificate that its contents were true and correct. In the petition she alleged that she had not received notice, as required by Maryland Rule W74, and alleged that she had made the payments required under the mortgage and was not in default or arrears. On the same day, the Circuit Court for Cecil County signed an order enjoining the assignee “from proceeding with said mortgage foreclosure sale until the matter is heard fully on its merits by this Court.”

A hearing on the merits was held on 9 January 1974. Mr. Kenneth Saunders and Mrs. Stradley were the only witnesses who testified at the hearing. Several exhibits were offered and received in evidence. They related to the making of the monthly payments on the mortgage, the payment of state and county taxes on the property, and an insurance policy on the improvements.

Checks by which many of the monthly payments were made showed that each was dated on the 15th of the month. Mrs. Stradley testified that she invariably mailed each payment on the same day that she wrote the check. She said also that a few of the checks were written and mailed before the due date. Mr. Saunders, on the other hand, said that each of the checks was received several days, and up to 10 or 11 days, after the due date.

The August 1973 payment seems to have precipitated the difficulties which led to the foreclosure action. Mr. Saunders, then living in Florida, wrote Mrs. Stradley on 22 August informing her that he had not received the payment due on the 15th, and commenting generally on the fact that the payments were always late. He suggested that she mail them several days early to allow for mailing time. The check, dated 14 August, and never cashed, was eventually received by Mr. Saunders on 20 September. The postmark on the envelope indicates that it was mailed in August 1973 and, while the second digit of the date is not entirely legible, it could be read as the 16th, and no later than the 19th of August.

All checks tendered for the monthly payments thereafter were rejected. The record indicates that from about that time on, there was correspondence between attorneys for the parties, but no copies of that correspondence are in the record.

Mrs. Stradley placed in evidence as an exhibit the bill rendered by the Treasurer of Cecil County for county and state taxes on the property for the year July 1, 1973 to June 30, 1974. The bill stated that the tax was due July 1, 1973, and contained a warning that, “all taxes unpaid on October 1st after due date, will draw interest from September 1st, at the rate of /s% per month”. The bill was receipted, showing payment of the tax and interest on 26 December 1973. Mrs. Stradley testified that she paid the bill on that day. She explained that the interest on the taxes was less than she would have to pay somewhere else and that she normally paid the taxes late so that she could make use of the money.

Questions by counsel and colloquy between them during the course of the examination of the witnesses, indicated that in early October a letter was written on behalf of Mr. and Mrs. Saunders referring to the lateness of the payments and non-payment of taxes as reasons for invoking the acceleration clause of the mortgage and for foreclosing.

In the typewritten portion of the mortgage, which details the indebtedness and the terms of payment, there is an acceleration clause which reads:

“In the event of nonpayment of any installment of principal or interest, when due and payable, the whole mortgage indebtedness shall, at the option of the Mortgagees, become due and payable.”

In that portion of the mortgage which is largely printed form, there are covenants to pay the mortgage debt and interest in accordance with the terms and conditions of the mortgage; to pay, when due, all water rents, ground rents, taxes, assessments, and other charges; a covenant against waste; and a covenant to keep the improvements on the property insured and to cause a standard mortgagee clause to be attached to such policies. The mortgage contains a further covenant and agreement,

“That, in the event of any default in any covenant of this mortgage, * * * then the whole mortgage indebtedness shall, at the option of the Mortgagee, be and become due and payable * * *.”

The mortgagor authorizes the mortgagee or his assigns, in the event of any default in any of the covenants of the mortgage, to sell the mortgaged property.

Another provision is that the mortgagee may at any time waive any of the covenants or conditions, in whole or in part, without in any way releasing the mortgagors from any of the covenants or conditions of the mortgage.

At the conclusion of the evidence offered at the hearing, and after arguments of counsel, the chancellor found that Mr. Saunders had, at least by implication, accepted the mail service as the means of receiving the checks. The chancellor then stated that under those circumstances, the date of mailing is the date of payment. He concluded that all of the payments in issue were made, at least in that manner, on or before the due date, and that there was no default in the mortgage installment payments.

The chancellor rejected the argument concerning Mrs. Stradley’s default by failure to pay the real estate taxes on time. He did so by saying that it wasn’t the non-payment of taxes that caused the bringing of this foreclosure proceeding. Undoubtedly, the judge made that comment because of the wording used by the assignee in his order to the clerk, which initiated the foreclosure case as far as the court records are concerned. The order directed the clerk to docket the suit as titled for foreclosure of the mortgage, and contained the phrase, “ * * * default having occurred by reason of non-payment of principal and interest in the terms thereof sk * * ”

The chancellor announced that he would sign a decree permanently enjoining sale of the property under foreclosure. Such a decree was signed on 11 January 1974, and filed on 14 January. It decreed:

“That the said C. Daniel Saunders, Assignee, be and he is hereby enjoined from foreclosing the property of the Respondent, Jane L. Stradley, as set out in said proceedings for any alleged violations up to and including the date of the hearing on January 9, 1974, * *

We have noted that the petition to enjoin the foreclosure contained an allegation that the petitioner had not received notice as required under Rule W74. The complete reference is Maryland Rule W74 a 2 (b). That subsection requires that in addition to the publication of the notice of sale, the person authorized to make the sale shall send a notice of the time, place, and terms by registered mail to the mortgagor, not earlier than 20 days and not later than 5 days before the date of sale. Although the record does not affirmatively show it, there is an indication in the record that such a notice was sent and returned undelivered. It is obvious that the purpose of the notice was in fact accomplished because the mortgagor’s petition to enjoin the sale was mailed to the assignee more than five days before the date of sale. We assume that there was no issue on this point before the chancellor because he did not decide it and, since it was not decided below, it is not before us in this appeal. Maryland Rule 1085.

Likewise, there is nothing properly before us in this appeal concerning the propriety of the order signed by the judge on the same day the petition to enjoin was filed, in which order the assignee was enjoined from proceeding with the foreclosure sale. While it was not so labeled, the order constituted an ex parte injunction. Under Maryland Rule BB72 a, an ex parte injunction shall not be granted unless it appears that immediate, substantial, and irreparable injury will result to the applicant before an adversary hearing can be had. This subsection also contains a provision that the judge may, in his discretion, communicate informally with the person against whom the injunction is sought, or his attorney.

Subsection b of Rule BB72 requires that an ex parte injunction shall give the adverse party leave to move for a hearing on not more than two days’ notice, and that it shall expire by its terms within a time which shall not exceed ten days. Rule BB75 provides that such an injunction shall not be issued unless a bond is filed in such amount as may be determined by the court, with such surety as may be approved by the clerk or with other security approved by the court. The Rule also provides that in the case of extraordinary hardship the requirement of surety or other security may be dispensed with, but there is no authorization in the rule to dispense altogether with the requirement that a bond be filed.

For the very reason that questions of whether an ex parte injunction should or should not be issued are ordinarily moot before the case can reach an appellate court, the equity courts should be especially alert to see that the parties comply with the applicable rules before an ex parte injunction is ordered. We call attention to the fact that the order entered below was not based on a showing that irreparable injury would result before an adversary hearing could be had. The order was entered 8 days before the scheduled sale and, even considering intervening holidays at that time of year, we think an adversary hearing could have been scheduled and held. We note that the record does not show that there was any attempt to communicate informally with the assignee. The order did not give the adverse party leave to move for a hearing on not more than two days’ notice, and it did not state by its terms that it would expire on a specified date. The order did not require the filing of any bond, with or without surety or other security.

In spite of its infirmities the ex parte injunction became moot when the time for the scheduled sale of the property passed. It is only the final injunction, ordered by the court on 11 January 1974, which is before us in this appeal.

We now determine whether the assignee should or should not have been enjoined from foreclosing for any alleged covenant violation up to the date of the January 9th hearing. To do so, we must analyze in more detail just what a foreclosure proceeding is in the law of Maryland, how and when issues are raised, and whether the assignee in this case, by any pleading he filed, limited the issues by excluding or waiving failure to pay taxes when due as a default. If the assignee did not so limit the issues, then the chancellor erred when he decided that “we can eliminate that point completely”.

The subject matter of mortgage foreclosure in Maryland has always been within the ordinary jurisdictional power of the equity courts, independently of any consent by the mortgagor, or provisions of the mortgage. Only the procedure has changed.

Originally the jurisdiction of the court could be invoked only by filing a bill of complaint to foreclose the mortgage. The case followed the regular course of equity pleading. In Venable, The Law of Real Property and Leasehold Estates in Maryland (1892), the author says, at 215:

“After the pleadings * * * are filed, if the facts stated in the bill are denied in the answer, evidence is taken. If the case is admitted or made out, the court passes a decree * * *.”

At one time the decree was for “strict foreclosure”, which simply amounted to extinguishment of the mortgagor’s right of redemption. Later it became the practice for the decree to order that the property be sold, and to appoint a trustee to make the sale, which was then reported to the court for ratification.

Professor Venable goes on to discuss the more recent method of foreclosure of mortgages under a power of sale contained in the mortgage. He says, at 219-20:

“These Statutes were not intended to confer a new or special jurisdiction on courts of equity, but merely to regulate and perfect the method of proceeding where there was a power to sell in the mortgage* * *.
“In this case there is no necessity for any proceeding in court to have a trustee appointed to sell. The mortgagee or his attorney is clothed with such authority by the consent contained in the mortgage and from the filing of the bond as required by the Statute * * *. The power to sell is substituted for a decree * * *.
“The proceedings are instituted by filing the mortgage or a certified copy of it and a direction to the clerk of the Circuit Court in equity, in the county where the land lies, to docket a case.”

And the author goes on to say, at 221-22:

“The trustee’s report of sale is his first official intercourse with the Court, and its supervisory power then commences; and the Court cannot revise, confirm, ratify or reject the sale until it has been reported * * *. On such report, the jurisdiction of the Court becomes complete, and equitable principles such as are applicable to sales under decrees in other cases prevail * * *.”

Miller, Equity Procedure (1897), after a reference to foreclosure by formal proceedings, discusses the statutes which authorize the inclusion of a power of sale in a mortgage, and the procedure to be followed when a power of sale is exercised. The author goes on to say, at 535:

“The proceeding is wholly ex parte and without process, and does not constitute a ‘suit’. The purpose of the legislation was to provide a more expeditious and less expensive method of enforcing mortgages than the former proceedings by formal bill in equity.”

The statutory authorization for including a power of sale in a mortgage is now found in Code, Real Property Article, § 7-105. It previously appeared in Code, Article 21, § 7-105, and prior to that the substantive provisions, without essential difference, were found in Code, Art. 66, § § 5 et seq. Article 66 also included procedural provisions, but these were repealed in 1962 because procedure was then covered by Maryland Rules. The first Rule dealing with foreclosure of mortgages was Maryland Rule 1391, effective 1 January 1959. The subject matter is now covered by Maryland Rules W70 to W80.

Rule W72 c 1 provides that an action to foreclose a mortgage containing a power of sale shall be commenced by the filing of an order to docket, together with the mortgage, or a certified copy thereof, as an exhibit. Rule W72 e provides that jurisdiction of the court over the mortgaged property shall attach upon the docketing of the action. Before 1959 it had always been held that jurisdiction attached when the report of sale was filed. Warehime v. Carroll County Bldg. Ass’n, 44 Md. 512 (1876).

Rule W72 d says that it is not necessary that process issue or be served upon the opposite party, or that an answer be filed, or a hearing held. Rule W74 provides for the filing of a bond, the publication of notice and mailing of notice, for filing a report of the sale, and for conveyance after ratification.

None of the documents required in the course of these procedures appears to have the status of a pleading. Subsection b of W76 deals with the subject of an injunction to stay a sale or any proceedings after a sale. The rule places certain limitations on who may obtain an injunction, and provides that an injunction shall not be granted unless the petition alleges certain specified facts under oath. The rule does not specify whether an injunction may be sought by a petition in the same proceeding, or by a separate equity proceeding, and it appears that it may be done either way.

Under the former practice, when it was the filing of the report of sale which caused the jurisdiction of-the equity court to attach, the Court of Appeals indicated, in Hubbard v. Jarrell, 23 Md. 66 (1865), that the papers filed in such a proceeding are not to be tested for sufficiency as pleadings. In that case, an exception to the sale had asserted that the report did not show that any contingency, upon which the power of sale depended, had happened. The Court of Appeals said, at 81-82:

“But as the mortgage itself, with the advertisement of sale, was filed and constituted part of the proceedings, before an order of ratification was asked for or passed, everything was substantially complied with that was necessary to induce the proper action of the court, and to show a compliance with the law. If payment had in fact been made, or any contingency had not occurred upon which the power of sale depended, the mortgagors could show it, and thereby arrest the ratification of the sale. This objection is simply to the form of the report.”

In Northrop v. Beale, 170 Md. 439, 184 A. 900, cert. denied, 299 U. S. 516, 57 S. Ct. 236, 81 L. Ed. 381 (1936), the Court considered exceptions filed below to a report of sale, and a demurrer to the exceptions. It said, at 444:

“A report of sale is not a pleading, nor is an exception to such a report, and we know of no rule by which the legal sufficiency of such an exception must be raised by a demurrer.”

The Court reiterated the same point, and quoted from Northrop v. Beale, supra, in Southern Maryland Oil v. Kaminetz, 260 Md. 443, 272 A. 2d 641 (1971).

We are satisfied that an “order to docket” is not a pleading. This is so in spite of the fact that it is the delivery of the order to the clerk which gives the equity court jurisdiction over the mortgaged property when a power of sale is being exercised. But the order need not make factual allegations sufficient to show a right to proceed. No process is issued or served upon the filing of an order. It is not designed to be answered, denied, or traversed, so as to arrive at issues. It neither broadens nor narrows the scope of the court’s function in the case. It does not, without more, call upon the court to decide whether a complaining party is entitled to any equitable relief. Ruley v. Hyland, 77 Md. 487, 26 A. 1038 (1893).

In the case before us issues between the assignee and the mortgagor arose, not with the filing by the assignee of an order to docket, but when Mrs. Stradley, the mortgagor, filed her petition to enjoin the foreclosure. In her petition she alleged, under oath, that she had “made the payments as required under the mortgage when due every month”, and that she was “not in default or arrears on said mortgage”.

Maryland Rule W76 b 2 prescribes what must be alleged in a petition to enjoin a foreclosure sale. While Mrs. Stradley’s allegation that she was not in default appears to have been made in the context of monthly payments, it must be read to be as broad as the Rule requires. As a general allegation by the mortgagor of no default, it permitted a showing by the assignee of any default under the mortgage, without any requirement that it be previously pleaded. Mrs. Stradley herself provided the evidence to show a breach of her covenant to pay taxes.

The chancellor erred when he concluded that the assignee’s order to docket stated and limited the issues, or was required to do so. He should have considered whether the failure to pay taxes when due was a breach of a covenant in the mortgage.

Long ago the Court of Appeals held that breach of a covenant in a mortgage or deed of trust to pay taxes when due is a default which permits acceleration of the secured debt, and sale of the encumbered property by foreclosure. Gustav Adolph Build. Asso. v. Kratz, 55 Md. 394 (1881); Condon v. Maynard, 71 Md. 601, 18 A. 957 (1889).

In 3 Jones, Law of Mortgages of Real Property, § 2303 (8th ed. 1928), the author says:

“The payment of taxes may be made a condition, for breach of which foreclosure may be had. Where a mortgage contained a power of sale authorizing a sale for any breach of conditions, and there was a breach of the condition to pay taxes and assessments, the fact that the principal debt and interest are tendered or paid to the mortgagee does not defeat or render invalid the power of sale. The assignee of a mortgage may exercise the power of sale for a default in the payment of taxes occurring before the assignment.”

The Court has consistently applied the same view. In Stewart v. McCaddin, 107 Md. 314, 68 A. 571 (1908), the lower court enjoined foreclosure of a mortgage, but the Court of Appeals said that it was error to have restrained the sale, because there were two clear defaults. One was failure to pay the interest when due, and the other was failure to pay the taxes.

Foreclosure for breach of a covenant to pay taxes when legally demandable was held in Lotterer v. Leon, 138 Md. 318, 113 A. 887 (1921), to have been erroneously enjoined below, even when the taxes were promptly paid after notice. Rejecting an argument that equity should not permit enforcement of the default for the purpose of oppression, the Court said, at 328-29:

“Upon the failure of a mortgagor ... to pay the taxes within the time required by the mortgage, the mortgagee has the right to treat the whole mortgage debt as due, or to waive the default, and there is no legal or equitable principle upon which his right to so elect can be made to depend upon the motive prompting his election.”

Rather than the basic question of the right to foreclose for breach of a covenant to pay taxes, most of the cases have involved questions of when a tax is due and payable, or legally demandable, or in default. Findlay v. Darnall, 143 Md. 291, 122 A. 247 (1923), is an example. Such questions were answered quite clearly by the Court of Appeals in Nylen v. Geeraert, 246 Md. 4, 226 A. 2d 878 (1967), when it said, at 12:

“Where the deed of trust (or mortgage) contains a provision substantially like the one before us (using the word ‘default’) we think, as our predecessors seem to have suggested, that the obligor (or mortgagor) is in ‘default’ in respect of the payment of taxes if he allows them to remain unpaid after 1 October, the day they begin to bear interest.”

Non-payment of taxes, as a breach of a mortgage or deed of trust covenant, was again held, in Fontana v. Walker, 249 Md. 459, 462, 240 A. 2d 268, cert. denied, 393 U. S. 927, 89 S. Ct. 262, 21 L.Ed.2d 263 (1968), to be a default the day the taxes begin to bear interest.

As in several of the earlier cases, both the degree and the duration of the default in the case now before us seem small indeed, when compared with the harshness of foreclosure. The chancellor below in Nylen v. Geeraert, supra, made such a comparison, and could not bring himself to deny an injunction. The Court of Appeals said, at 12-13:

“One can share his sympathy for the plight of the appellees but one cannot disregard the rights of the appellants, however strict and uncompromising their attitude may be.”

The Court then quoted from its opinion in Doeller v. Mortgage Guarantee Co., 166 Md. 500, 171 A. 856 (1934), where it said, of an interest payment made three days late:

“The appellant contends, and we think properly, that, if the mortgagor delayed paying the interest beyond the day on which it became due and payable, the entire mortgage debt became due and payable, and that the length of the delay was not material. Wiltsie on Foreclosure of Mortgages, sec. 43; 41 C. J. 845. For, if the default existed at all, it was by the agreement of the parties a complete, indivisible, and consummate thing, and unless affected by the doctrine of waiver, its mere duration would not affect its qualities, incidents, or effect. While the strict enforcement by the mortgagee of the rights flowing from it may appear, and, indeed, may be, harsh and oppressive, that consideration cannot be regarded as material in such a proceeding as this, where the default rests upon the deliberate agreement of the parties, where the right to the remedy and the remedy itself are definitely fixed by statute, and where the duty of the court to recognize the remedy and the mortgagee’s right thereto is mandatory.”

Because Mrs. Stradley, the mortgagor, had failed to pay the taxes when due, the mortgage held by Mr. and Mrs. Saunders was in default when the foreclosure proceeding was commenced. The court should not have enjoined the assignee from foreclosing. We shall reverse the decree, and remand the case for entry of an order dismissing the petition to enjoin the sale, after which the assignee may proceed with foreclosure.

Decree reversed.

Case remanded for entry of an order dismissing petition to enjoin sale.

Appellee to pay costs.

      . Professor Venable points out that the law did not even provide for any such proceeding, but that it had become the general practice, for convenience in titling papers and keeping docket entries, to file an order to the clerk to docket a case. Maryland Rule W72 c 1 now requires an order to docket. An editor’s note explains that there was no statutory requirement for such an order, but it was included in the Rule because it was believed to represent the prevailing practice.

      . Subsection 2. of Rule W72 c relates to an action to foreclose a mortgage containing an assent to a decree, a practice formerly used only in Baltimore City, but now available throughout the State.


source: Caselaw Access Project

author: Davidson, J.,

license: Public Domain

text:
    MELINDA MARGARET STACK STALEY v. WILLIAM CRESSLER STALEY
    [No. 225,
    September Term, 1974.]

      Decided March 12, 1975.

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

      Bill L. Yoho, with whom were Robert S. Hoyert, Gary Gasparovic and Hoyert & Yoho on the brief, for appellant.

      George W. Shadoan, with whom were Ferdinand J. Mack and Shadoan & Mack on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 28 January 1974, in the Circuit Court for Montgomery County, Judge H. Ralph Miller entered a decree in which, insofar as here relevant, he awarded the appellant, Melinda Margaret Stack Staley (mother), an absolute divorce from the appellee, William Cressler Staley (husband, alleged father), on the ground of a voluntary separation. In this decree Judge Miller denied the mother’s request for a permanent award of support for two children, Matthew Kale and Christopher Marc Staley, her twin sons whom she alleged were fathered by her husband. It is from that portion of the decree, which denied the paternity of the husband and his responsibility for child support, that the mother appeals.

The record shows that the parties were married on 6 July 1969 and lived together until 30 November 1971 at which time the husband left the marital home. Twin boys were born prematurely to the mother on 5 May 1973. The mother’s gynecologist testified that the probable date of conception was 20 September 1972, that the probable period of conception would include the two weeks before or after the estimated date of conception, and that it was possible, albeit improbable, that conception occurred on 5 October 1972. The mother testified that on 5 October 1972 the husband visited her at her apartment and engaged in sexual relations with her. The husband asserted that he came to her apartment on that date, but only to pick up some furniture. He denied that he had intercourse with her. There was evidence to show that the mother was associating with another man (alleged paramour) under suspicious circumstances before, during and after the period of conception.

On appeal the mother contends that the chancellor erred in applying the provisions of Maryland Code (1973 Repl. Vol.) Art. 16, §§ 66A through 66P, and in particular, § 66F (b) rather than the common law “Lord Mansfield Rule” and in admitting allegedly immaterial evidence. She concludes that the decision of the lower court was unsupported by the evidence and was clearly erroneous. Finally, she asserts that the lower court erred in not awarding her costs and attorney’s fees for this appeal. We find all but the latter of these contentions to be without merit.

I

In 1777 in an ejectment case involving the question of the claimant’s paternity, Lord Mansfield declared that:

“[t]he law of England is clear that the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage .... As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule founded in decency, morality, and policy, that they shall not be permitted to say after marriage that they have had no connection, and therefore that the offspring is spurious . . . .”

Goodright v. Moss, 2 Cowp. 591, 592-94, 98 Eng. Rep. 1257, 1258 (1777). In Maryland, until 1 June 1963, the “Lord Mansfield Rule,” derived from the English common law and named for its originator, was applied, regardless of the particular kind of case involved, whenever a question of the paternity of the child of a married woman arose. See Clark v. State, 208 Md. 316, 320-25, 118 A. 2d 365, 368-70 (1955) (bastardy proceeding); Dayhoff v. State, 206 Md. 25, 28-35, 109 A. 2d 760, 761-64 (1954) (criminal action for non-support of infant); Hall v., State, 176 Md. 488, 492-98, 5 A. 2d 916, 918-20 (1939) (bastardy proceeding); Hale v. State, 175 Md. 319, 321-23, 2 A. 2d 17, 18-20 (1938) (bastardy proceeding); Harward v. Harward, 173 Md. 339, 354-56, 196 A. 318, 325-26 (1938) (divorce on ground of wife’s adultery); Howell v. Howell, 166 Md. 531, 539-42, 171 A. 869, 872-74 (1934) (divorce action with claim for child support); Scanlon v. Walshe, 81 Md. 118, 129-32, 31 A. 498, 499-500 (1895) (proceeding to determine heirs under a will). This evidentiary rule, as formulated in Maryland, created a presumption that the child of a married woman was the legitimate issue of her husband, which presumption could be rebutted by clear and convincing testimony of a person other than the husband or mother, that the husband did not have intercourse with the mother at a time when conception of the child in question would have been possible. Once non-access was so shown, both the husband and mother could testify as to any other relevant facts, such as intercourse of the mother with another man and the identity of the father.

In 1963 the General Assembly enacted Art. 16, §§ 66A through 66P, Paternity Proceedings. Section 66F (b) of that statute modifies and relaxes the “Lord Mansfield Rule” by providing, in substance, that when a married woman brings a paternity proceeding against a man who is not her husband, the presumption that the child is the legitimate child of her husband can be rebutted by the testimony of persons other than the mother and her husband that the mother was living separate and apart from her husband at the time the child was conceived. Once the presumption is rebutted, both husband and mother may testify as to non-access as well as to any other relevant matters. Moreover, the mother’s burden of proof is met if she establishes by a preponderance of the evidence that the man who is not her husband is the father of her child. See Baker v. Lease, 236 Md. 246, 247-48, 203 A. 2d 700, 700-01 (1964); Corley v. Moore, 236 Md. 241, 245, 203 A. 2d 697, 699-700 (1964).

The mother contends that this legislative modification of the “Lord Mansfield Rule” applies only when a married woman brings a paternity proceeding against a man other than her husband. She maintains that this modified rule should not apply when a married woman attempts to establish, in an equity proceeding seeking permanent child support from her husband, the paternity of her husband for children conceived at a time when the parties were married but living separate and apart.

In Shelley v. Smith, 249 Md. 619, 627, 630-31, 241 A. 2d 682, 686, 688 (1968), an equity case brought to establish the right of a child to inherit from a man not married to his mother at the time of his conception and birth, the Court of Appeals said:

“The case at bar is not, of course, the kind of paternity proceeding envisaged by Code, Art. 16, § 66F and the relaxation of the Lord Mansfield rule, as set forth in § 66F (b), at least at first blush, does not appear to be applicable to any but the special proceeding therein provided. If this is indeed the case then a quite undesirable anomaly presents itself; viz., the existence of two different rules governing the resolution of identical issues of paternity, the Lord Mansfield rule in cases like the one before us and the § 66F (b) rule in paternity proceedings under the statute. We think this should not be. It contravenes both good order and common sense.”
“[T]he rules of evidence controlling the proof of paternity ought to be the same in either case. Hall v. State, supra. And there seems to be no reason why the rules emanating, in the first instance, from the governor’s commission and, in large part, adopted later by the Legislature should not apply in the relatively few cases where paternity is in issue in connection with questions involving the right to inherit rather than the right to support and maintenance. We so hold. . . .”

The Court of Appeals held that the evidentiary rules codified in § 66F (b) should be applied to inheritance proceedings involving the question of paternity.

In Altemus v. Altemus, 18 Md. App. 273, 306 A. 2d 581 (1973), this Court interpreted Shelley as making the modified version of the “Lord Mansfield Rule” applicable whenever a question of paternity arose, unless the Legislature had provided by statute for the application of a less strict rule for a particular kind of case. There, this Court said, at 18 Md. App. 281, 306 A. 2d 585:

“What the Court did in Shelley was not so much to extend a specific statute beyond the limited application the Legislature gave it, but to modify what was then Maryland’s version of the common law rule originally enunciated by Lord Mansfield, by engrafting onto our common law the same rule of public policy which was opened up by the enactment, of § 66F(b).
“While we have modernized the Maryland common law version of the Lord Mansfield Rule, this is not to say that the Legislature may not provide by statute for the application in a particular kind of case of a rule even less strict. This is true even though doing so may present an anomaly which contravenes both good order and common sense.” (Emphasis added.)

Thus we recognized that in Shelley the judicially created “Lord Mansfield Rule” had been judicially modified by the Court of Appeals to assure that uniform rules of evidence were applied, irrespective of the particular kind of case, whenever the question of paternity arose.

We find Shelley, supra, to be dispositive. The application of evidentiary rules set forth in § 66F (b) to equity actions for child support brought by a mother against a man who was her husband at the time of the conception of the child but who nonetheless denies paternity, permits uniform rules of evidence to control the proof of paternity, thereby assuring that a child’s right to support does not depend upon whether the paternity issue is raised in a proceeding pursuant to Art. 16, § 66A through 66P or in some other kind of equity proceeding. The Legislature has not established a less strict test for such other equity proceedings. Accordingly, we hold that in an equity action for child support brought by a mother against a man who was her husband at the time of conception, the applicable rules of evidence governing the proof of paternity are those set forth in Art. 16, § 66F (b). The chancellor did not err in applying the evidentiary rules set forth in that section of the Code.

II

The mother contends that the chancellor erred in admitting, over objection, the testimony of two detectives concerning her association with an alleged paramour, under suspicious circumstances, in February and March, 1973, a time when she was already some five or six months pregnant. Their observations, in the words of the chancellor, “would have been enough to support an allegation of adultery by the husband under the Maryland law.”

In Maryland evidence tending to show that a mother engaged in sexual relations with men other than the alleged father, or associated with other men under suspicious circumstances at or about the time of conception is admissible on the question of paternity. Twining v. State, 234 Md. 97, 102, 198 A. 2d 291, 294 (1964); Brennan v. State, 151 Md. 265, 269, 134 A. 148, 149-50 (1926); Seibert v. State, 133 Md. 309, 313-14, 105 A. 161, 163 (1918); Jones v. State, 132 Md. 142, 146-47, 103 A. 459, 460 (1918). Such evidence, which “predicates an equal possibility of conception through someone else’s act,” 1 Wigmore, Evidence, § 133 at 564 (3d. ed/1940), is material to the question of paternity because it tends to establish that someone other than the person alleged may be the father of the child. Evidence of a mother’s association with a man other than the alleged father under suspicious circumstances at a time not within the period of conception is immaterial “except as bearing upon the nature of their relationship.” Seibert, supra, at 133 Md. 314, 105 A. 163; 10 C.J.S. Bastards, § 85 at 174 (1938). If there is evidence of a relationship existing between the mother and the other man during the period of conception, evidence concerning the nature of their relationship at other times would be material. The existence of an illicit relationship between them at such other times would tend to show that it was probable that the nature of their relationship during the period of conception was similarly illicit. Evidence of misconduct by a mother, prior to and/or after the period of conception with a man other than the alleged father, who had opportunities for sexual intimacy with her during the period of conception, is a material aid to the trier-of-facts in determining the probability of misconduct during the period of conception. Because such evidence tends to establish that a person other than the alleged father is, in fact, the father of the child, it is material and admissible. See State v. Rook, 519 P. 2d 252, 257 (Wash. App. 1974); I v. D., 158 A. 2d 716, 721 (N.J. Super. 1960); Guy v. State, 102 So. 243, 244 (Ala. App. 1924); 10 Am.Jur.2d, Bastards, § 116 at 927 (1963).

Here there was evidence to show that, although the mother and her husband were living separate and apart during the period of conception, the husband had visited the mother during that time. There was conflicting evidence on the question of whether intercourse then occurred between them. Thus, it was critical for the husband to show that during the period of conception the mother had engaged in sexual relations with another man.

One of the wife’s neighbors, a flight engineer in the United States Air Force, testified that, during the period of conception, he went into his backyard with a telescope for the express purpose of spying on the mother’s activities while in the alleged paramour’s apartment. He stated that on three or four occasions, at about 10:30 or 11:00 p.m., he observed the mother and her alleged paramour sitting close together on a sofa and kissing just before the lights went out. He also testified that on some occasions he saw the alleged paramour, dressed “casually,” leaving the mother’s apartment at about 7:00 a.m., returning to his own apartment, and shortly thereafter leaving for work dressed in a business suit, shirt and tie.

The testimony presented by the private detectives about other acts of possible misconduct on the part of the mother and her alleged paramour subsequent to the period of conception related to the nature of their relationship and substantially increased the probability that their association during the period of conception did, in fact, involve illicit relations. Because these facts were material in showing that a person other than the husband might be the father of the twins, the testimony concerning them was admissible. We hold that, since there was evidence of a relationship between the mother and her alleged paramour during the period of conception, the chancellor did not err in admitting evidence of possible misconduct occurring between them at times subsequent to the period of conception.

Ill

The mother contends that the chancellor erred in admitting, over objection, the testimony of her neighbor that in August, 1972, she stated that she was holding her alleged paramour responsible as the father of her twins. She points out that a pregnancy test on 6 September 1972 indicated that she was not then pregnant and, that other evidence showed that she did not conceive the twins until sometime around 20 September 1972. She maintains that the purported statement allegedly made in August 1972 had no relevance or materiality to the question of the paternity of the twins because it did not, and could not, constitute an admission that her husband did not father them.

It is the function of the trial court to judge the credibility of the witnesses and the weight to be given their testimony. Ritter v. Danbury, 15 Md. App. 309, 313, 290 A. 2d 173, 175 (1972); Kimble v. Keefer, 11 Md. App. 48, 50, 272 A. 2d 668, 669 (1971); Maryland Rule 1086. A trial court may credit all or part of any witness’s testimony. See Basoff v. State, 208 Md. 643, 654-55, 119 A. 2d 917, 923 (1956); United Railways & Electric Co. v. State, for use of Lapka, 163 Md. 313, 323-24, 163 A. 90, 93-94 (1932); 98 C.J.S. Witnesses, § 458 at 321 (1957).

Here the record shows that the neighbor testifying as to the statement lived in close proximity to the mother, not only at the alleged time the statement was made, but also until the time of trial. Thus, he had ample opportunity to hear the statement had it been made at a later date when, in fact, the mother was pregnant with the twins. Moreover, the mother’s gynecologist, who determined on 1 November 1972 that the mother was pregnant with the twins, testified that on that date, or shortly thereafter, the mother told him that her husband was not the father of the children. Under these circumstances the chancellor was not clearly erroneous in crediting that portion of the witness’s testimony concerning the making of such a statement and its contents, and in discrediting that portion of the testimony relating to the date upon which the statement was made. On this state of the facts the mother’s statement constituted an admission that her alleged paramour was the father of the twins, and was relevant and material to the issue of paternity. The chancellor did not err in admitting the mother’s statement.

IV

The mother contends that the chancellor’s determination that her husband was not the father of the twins was not supported by the evidence and was clearly erroneous. We do not agree.

Here the record shows that the parties were married at the time of the twins’ conception. Thus, the presumption that the husband was the father of the twins arose. A person other than the mother and the husband testified, and the parties agreed, that they were living separate and apart during the period of conception. There was no evidence to the contrary. Therefore, the record supports the chancellor’s finding that the presumption of legitimacy was overcome. Accordingly*, both husband and wife became competent to testify as to the non-access of the husband or as to any other relevant matters. The mother then carried the burden of proving the husband’s paternity by a preponderance of the evidence without the aid of the presumption.

In order to meet her burden of proving that the husband was the twins’ father, the mother was required to show by a preponderance of the evidence:

(1) that she engaged in an act of sexual intercourse with the alleged father which caused the onset of pregnancy, and
(2) that he, to the exclusion of all others, was the father of her twins.

See Ritter, supra, at 15 Md. App. 312, 290 A. 2d 175; Kimble, supra, at 11 Md. App. 50, 272 A. 2d 669. There was conflicting evidence as to whether sexual intercourse transpired between the mother and her husband on 5 October 1972, a date at which conception was possible, though not probable, as well as conflicting evidence as to whether the mother engaged in illicit sexual relations with her alleged paramour during the period of conception. It is not the function of an appellate court to determine the comparative weight of conflicting evidence. If there is any competent, material evidence to support the factual findings below, we cannot hold those findings to be clearly erroneous. Davidson v. Katz, 254 Md. 69, 74-75, 79-80, 255 A. 2d 49, 52, 54-55 (1969); Larmore v. Larmore, 241 Md. 586, 589, 217 A. 2d 338, 340 (1966); Gosman v. Gosman, 19 Md. App. 66, 78, 309 A. 2d 34, 40 (1973), rev’d on other grounds, 271 Md. 514 (1974); Maryland Rule 1086.

Here there was ample evidence to show that during the period of conception the mother engaged in illicit sexual relations with a man other than her husband. This evidence, if believed, was more than sufficient to sustain the chancellor’s finding that the mother had failed to carry her burden of proving by a preponderance of the evidence that the husband was the father of the twins. On the record before us we conclude that the chancellor was not clearly erroneous in finding that the husband was not the father of the twins.

V

The mother finally contends that the chancellor erred in failing to grant her motion for costs and attorney’s fees for the prosecution of her appeal. The motion was filed on 21 February 1974, the same day on which she noted her appeal to this Court from the order denying child support. On 13 May 1974 a memorandum, signed by the chancellor, was filed, which stated:

“There are no points or authorities to indicate this Court has any jurisdiction after the appeal has been noted. If no jurisdiction this motion must be presented to the Court of Appeals.”

No order granting or denying the motion was ever filed.

This Court will not ordinarily decide any point or question which was not tried and decided below. Maryland Rule 1085. Because we believe that a decision on the question of whether a trial court has jurisdiction to award counsel fees and costs for the prosecution of an appeal from an order denying child support payments once the appeal has been noted, is necessary and desirable for the guidance of the lower court, we shall decide this question even though it was not decided below. Maryland Rule 1085.

Maryland Code (1957, 1973 Repl. Vol.) Art. 16, § 5A provides:

“In all cases where a person makes an application for a decree or modification of a decree with respect to the custody, the amount of support or visitation rights concerning a child or children of the parties, or files any form of proceeding to recover arrearages of child support or otherwise to enforce such decree, the court, after considering the financial status of both parties, their respective needs and whether there was substantial justification for instituting or defending the proceeding, may make such award of costs and counsel fees to either party as shall be just and proper under all the circumstances. (1967, ch. 488.)”

While this statute unequivocally establishes a person’s right, under certain circumstances, to an award of costs and counsel fees for the prosecution of a trial in a child support proceeding, it does not specifically indicate whether a person under the same circumstances is entitled to such costs and fees on appeal and, if so, whether the trial court has jurisdiction to award such costs and fees after an appeal has been entered.

In Rhoderick v. Rhoderick, 257 Md. 354, 359-60, 263 A. 2d 512, 515 (1970), a mother, dissatisfied with the amount awarded in response to her petition for increased child support, filed an appeal to the Court of Appeals. Thereafter, and while the appeal was pending, she filed a petition pursuant to Art. 16, § 5A, in the Circuit Court for Baltimore County, seeking counsel fees and the allowance of costs for the prosecution of her appeal. Her petition was dismissed.

The Court of Appeals held that it was error for the trial court to dismiss her petition for costs and attorney’s fees for prosecuting an appeal even though the appeal had been entered and was pending at the time of dismissal. The court determined as a matter of law that the appeal was substantially justified. The order dismissing the petition was reversed, and the case was remanded, insofar as here relevant, to permit the trial court to make a proper allowance for counsel fees for legal services in prosecuting the appeal. Thus, the Court of Appeals established that under Art. 16, § 5A, a person seeking child support payments is a privileged suitor; that she is entitled to counsel fees and court costs, not only for the trial, but also for the prosecution of her appeal; and that a trial court has jurisdiction over the award of costs and counsel fees on appeal even after the appeal has been entered.

We believe that Rhoderick is dispositive. Here the record shows that much probative evidence was presented by the mother to support her allegation that the husband was the father of the twins and was, therefore, responsible for their support. Her effort to obtain financial assistance for them from the man whom she alleged to be their father was made in good faith and undertaken in their best interests. We find as a matter of law that while the mother did not prevail upon the merits, she did have substantial justification for instituting this proceeding. Rhoderick, supra, at 257 Md. 360-62, 263 A. 2d 515-16; Peterman v. Peterman, 14 Md. App. 310, 316, 286 A. 2d 812, 816 (1972). We shall remand this case in order to permit the trial court to make a proper allowance for counsel fees for prosecuting this appeal. In order to arrive at an appropriate determination the trial court shall take further testimony in regard to the financial status of the parties, their respective needs, the amount of legal services rendered, and the reasonable value of such services.

Order affirmed.

Case remanded for further proceedings as to counsel fees in accordance with this opinion. Costs to be paid by appellee.

      . In Altemus the modified version of the “Lord Mansfield Rule” was not applied to proceedings under the Uniform Reciprocal Enforcement of Support Act because that Act contained a less strict evidentiary rule. Altemus, supra, at 18 Md. App. 281-82, 306 A. 2d 585-86; Maryland Code (1957, 1969 Repl. Vol), Art. 89C, § 21.

      . Cases, such as Ritter, supra, and Kimble, supra, which hold that a mother’s testimony standing alone, if believed, is sufficient to establish paternity, are inapposite to this case. Here the chancellor obviously failed to credit the mother’s testimony that her relationship with another man during the period of conception was platonic and did not involve sexual intercourse.

      . The record shows that on 7 March 1974 the mother filed a document entitled “Points and Authorities.” Notwithstanding the title of the document, it contained no citation of authorities to support herrnotion for appellate costs and attorney’s fees in an appeal from the denial of child support.

      . An analagous result is reached under Maryland Code (1957, 1973 Repl. Vol.) Art. 16, § 5 (a), which provides:
      “In all cases where alimony or alimony pendente lite and counsel fees are claimed, the court shall not award such alimony or counsel fees unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs.”
      Like Art. 16, § 5A, this provision, which establishes a wife’s right, under certain circumstances, to an award of counsel fees for the prosecution of a trial in an alimony proceeding, does not specifically indicate whether under the same circumstances she is entitled to counsel fees on appeal and, if so, whether the trial court has jurisdiction to award such counsel fees after an appeal has been entered.
      The Court of Appeals has long and consistently held that a wife living separate and apart from her husband is a privileged suitor when she seeks alimony, that as such she is entitled to counsel fees and costs for the prosecution of the trial, and that the husband should be required to pay counsel fees for services rendered his wife and her costs on an appeal concerning the matter of alimony when it appears that her income is insufficient to care for her ne'eds and when her appeal was taken in good faith. Finally, the court has frequently reiterated that an application to order the husband to pay his wife’s costs and counsel fees for the prosecution of her appeal should be acted upon by the chancellor even after the appeal has been entered, as such matters are within the jurisdiction of the trial court. Dougherty v. Dougherty, 187 Md. 21, 33-34, 48 A. 2d 451, 457-58 (1946); Timanus v. Timanus, 178 Md. 640, 644, 16 A. 2d 918, 920-21 (1940); Dicus v. Dicus, 131 Md. 87, 90, 101 A. 697, 698 (1917); Crane v. Crane, 128 Md. 214, 219-20, 97 A. 535, 536-37 (1916); Buckner v. Buckner, 118 Md. 263, 266-67, 84 A. 471, 473 (1912); Rohrback v. Rohrback, 75 Md. 317, 318-19, 23 A. 610, 611 (1892). The decision in Rhoderick, supra, establishes that, as a result of the State’s interest in protecting the welfare of children, a person seeking support payments for a child is granted the same “privileged suitor” status traditionally accorded to a wife seeking alimony.

      . The mother presented in evidence photographs of the husband as an infant, of two of his children by a previous marriage, and of his sister’s twins and younger son, all of which photographs revealed, according to the chancellor, markedly similar physical traits to those of the twins — blond hair, blue eyes and fair skin. In addition a blood test administered to the husband and the twins did not exclude the husband as the possible father. The mother denied that her relationship with the alleged paramour was illicit. Most importantly, the record shows that the husband had an opportunity for sexual intercourse with the mother during the period of conception. In sum, the chancellor acknowledged that the evidence in the case had left him “in a quandary.” He concluded that the evidence was in “a state of equal balance.” His determination that the husband was not the father was predicated solely upon the mother’s failure to carry her burden of proof.

      . The mother’s motion to strike certain exhibits concerning her financial status, which the husband appended to his brief on appeal, is granted. The relative financial status of the parties, as set forth above, will be before the trial court on remand.


author: Moore, J.,

text:
    JOHN H. GRIFFIN et al. v. ANNE ARUNDEL COUNTY, MARYLAND et al.
    [No. 250,
    September Term, 1974.]

      Decided March 12, 1975.

      The cause was argued before Powers, Davidson and Moore, JJ.

      Nicholas J. Fotos and Robert D. Frierson for appellants.

      Roger D. Redden, with whom were Paul F. Borden, County Solicitor for Anne Arundel County, John M. Court, Assistant County Solicitor for Anne Arundel County and William Gar Richlin on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

John H. Griffin and six other residents and property owners of historic Annapolis brought a class action in equity in the Circuit Court for Anne Arundel County seeking injunctive and declaratory relief against Anne Arundel County and the State of Maryland. The gravamen of the complaint was that the County Council for Anne Arundel County imposes an ad valorem property tax on all property owners of the County, including property owners within the City of Annapolis, for services such as fire and police protection, public works, recreation and parks, planning and zoning, mosquito control and Board of Liquor Control — services actually being supplied exclusively through their own city government and with respect to which there is also a city ad valorem property tax; and that an ad valorem property tax rate differential allowed by the County for municipal residents is arbitrary, represents only one-third of the amount to which they are lawfully entitled and bears a disproportionate relationship to benefits actually received.

The specific relief requested was the entry of a declaratory decree that (a) the imposition by the County of ad valorem property taxes upon the owners of real property in the City of Annapolis “is, and if continued will be, illegal and void in violation of Articles 15 and 23 of the Maryland Declaration of Rights and the Fourteenth Amendment to the Constitution of the United States” ; and (b) that tax levies imposed upon the appellants since 1966 be declared void and illegal and that damages be awarded to petitioners and the class they represent for the difference between the tax differential allowed and the greater amount to which they were legally entitled. The injunctive relief prayed was also twofold. Appellants sought injunctions (a) forbidding the collection of any real property tax against the petitioners and all property owners similarly situated for the fiscal year 1973-74 “based on the illegal differential taxation imposed” ; and (b) forbidding any tax sales for delinquent taxes against the petitioners or the members of the class.

The chancellor (Childs, J.) sustained, without leave to amend, the demurrer interposed by the State of Maryland and no error is assigned with respect to that ruling. In a memorandum opinion and order the chancellor, in reliance upon Hunt. v. Montgomery County, 248 Md. 403, 237 A. 2d 35 (1968) and Maryland Rule 610, rendered a summary declaratory judgment in favor of Anne Arundel County, finding no basis for an adjudication of violations of the state or federal constitutions and that the questions presented were of legislative rather than judicial cognizance.

I

FA CTUAL BA CKGRO UND

The City of Annapolis is a municipal corporation governed by the provisions of Article 23A of the Maryland Code which implements Article XI-E of the Maryland Constitution, ratified November 2,1954. Anne Arundel County adhered to the county commissioner form of government until 1964 when it became a charter county pursuant to Article XI-A of the Maryland Constitution, ratified November 2, 1915, and Article 25A of the Code. Since the fiscal year 1966, except for the fiscal years 1970 and ’71, the County Council has granted to property owners within the City of Annapolis a tax differential as shown by the following table adapted from paragraph 24 of the bill of complaint:

Fiscal Year Rate Charged
City Non-City
1966 2.60 2.83
1967 2.63 2.86
1968 2.69 2.89
1969 2.69 2.89
1970 3.00 3.00
1971 3.00 3.00
1972 2.95 3.25
1973 2.82 3.12
1974 2.29 2.59

The tax differential granted, as distinguished from the differential to which appellants claim to be entitled, is alleged in the bill of complaint to be as follows:

Fiscal Year Tax Differential
Granted Claimed
1966 .23 .56
1967 .23 .61
1968 .20 .74
1969 .20 .91
1970 .00 .81
1971 .00 .80
1972 .30 .75
1973 .30 .97
1974 .30 .85

The case was disposed of without the taking of testimony, as indicated above, and the record before us does not disclose, for any of the fiscal years in question, the constituent elements of the tax rate differential nor the legal or legislative means utilized to effect the differential, nor, indeed, the basis for appellants’ calculations of the differential claimed.

Appellants concede that the tax money paid by them to the County is spent for public purposes but they contend that the taxes are levied, not for the benefit of the “public of the City of Annapolis, but exclusively for the public of Anne Arundel County, specifically excluding those taxpayers of said County within the said City.” The failure of the County government to provide what is termed a lawful tax differential for real property owners within the City is alleged to constitute illegal “double taxation” prohibited by Article 15 and Article 23 of the Maryland Declaration of Rights and violative of Section One of the Fourteenth Amendment to the Federal Constitution, in that appellants are denied equal protection of the laws and are deprived of their property without due process.

As the chancellor observed in his written opinion, the issues surrounding County-City relationships presented in the instant case are not new and are not confined to Anne Arundel County alone. They have long engaged the attention of the General Assembly of Maryland and Commissions appointed pursuant to legislative action. Thus, a Joint Resolution of the 1959 Maryland General Assembly (Joint Resolution #26) resulted in the appointment by the Governor of a 13-member commission “to study problems of City-County fiscal relationships” and its report to the Governor almost four years later contained the following observations:

“The problem of tax differentials is one which has long been of concern to state and local government officials, not only in Maryland but in other states as well. A number of attempts have been made to cope with it, in order to eliminate some of the inequities which have existed in the tax structures of neighboring jurisdictions within states and counties, but to date none have been wholly successful.
“The problem arises primarily as a result of the fact that in many counties the county government established a single tax rate on all taxable property, whereas it may appear to provide some of its services only in the unincorporated areas of the county and leave the furnishing of these services within the cities and towns to the municipal governments. The results are that owners of property within the incorporated areas pay both the county and municipal governments for these services, such as street maintenance or police service, but they may receive the services only from the city or town governments. The resident of the municipality thus pays the same amount in taxes to the county government as does the resident of the unincorporated area, but receives none of these services from the County in return for his tax dollars.
“The problem of tax differentials is noted most often in Maryland in connection with such activities as street construction and maintenance, police and fire services, in which municipal governments frequently engage. It is encountered least often in connection with education, judicial administration and welfare matters, since the county governments are normally charged with these responsibilities and the city and town governments neither provide services nor levy taxes to underwrite them. These activities would be the responsibility of the county governments whether or not the municipalities existed.” p. 10 (Emphasis added.)

It was the conclusion of the Commission that the problem was not amenable to any “single solution and that any possible solutions would have to be developed on a County-by-County basis.” Toward this end, the Commission recommended that county and municipal governments be encouraged to create Commissions to identify governmental activities within the County with respect to which financial inequities exist as between taxpayers within incorporated areas and those in unincorporated areas; and to devise solutions to alleviate the problem.

The chancellor in his written opinion in this case specifically noted that the entire matter was also the subject of an extensive Report by the Committee on Taxation and Fiscal Affairs of the Legislative Council of Maryland in 1970.

With reference to then existing county-municipal fiscal relationships, that Report pointed out that a number of different practices were concurrently in effect in the counties. These included:

1. County Property Tax Rate Differential
Harford County, for example, allowed a .20 cent differential, under a specifically enacted Ordinance, reflecting expenditures for County roads and street lighting; Cecil County in 1969 and Allegany in 1970 enacted Local Laws that authorized the Counties to impose a differential property tax rate for municipal residents.
2. Reimbursement of Portion of County Taxes Collected in Municipal Corporations
Caroline, Carroll and Queen Anne Counties provided reimbursement to the municipal corporations for a portion of the County taxes collected on the municipal assessed valuation.
3. Fixed County Grant
Fixed grants were made in Allegany, Dorchester and Somerset Counties mandated by local law and to be utilized for street maintenance; the City of Takoma Park received a grant from Montgomery County in lieu of County expenditures for police services and public libraries within the City limits.
4. Proceeds of County Revenue Operations
The Counties of Harford, Kent, Somerset and Worcester paid a portion of the proceeds from the profits of County Liquor Dispensaries to the municipal corporations.
5. Provision of Services
Certain services would be provided by the County to the municipality without charge. Illustrative of these services was staff ' assistance for planning and zoning and Code enforcement programs.
6. State Mandated Grants
Two State mandated grants to counties were noted (a) .37% of the taxable income of the residents of the municipality; and (b) a sum equivalent to the amount of the tax on bank stock that the municipality received in the 1968 fiscal year.

In the Report’s discussion of the subject of property tax rate differential, it was stated that a lower county property tax for residents of municipal corporations would prevent “any ‘double taxation.’ ” The differential was deemed to be more “visible” to the taxpayer. But it was also pointed out that: “[i]f the premise of the property tax differential [for municipal residents] is accepted as public policy” the implementation thereof raises a number of questions with respect to the calculation of the costs of services not provided to municipal residents and how to determine what revenues are involved.

The ultimate findings of the Report of the Taxation and Fiscal Affairs Committee with respect to property tax rate differentials for municipal residents were as follows:

“The Committee on Taxation and Fiscal Matters finds that there are instances in Maryland where the residents of municipal corporations are paying county taxes for services that are not provided to them by the county and for which they also must pay municipal taxes for the same service. The most easily identified service is highway maintenance. Other services that can be subject to double taxation are police protection, parks, recreation, refuse disposal, planning and zoning, and mosquito control.
“The Committee further finds that the existing allocation of State-shared taxes among counties and municipal corporations and the existing requirements for the counties to make certain revenues available to municipal corporations have created instances where municipal corporations are receiving a disproportionate share of revenues for the type of services provided. Consequently, while some municipal residents are being subject to double taxation, some municipal residents are receiving double benefit from the allocation of non-property tax revenues. In such instances the residents outside of municipal corporations are paying a higher property tax rate than they should be paying.
“The Committee does not believe that a state mandated property tax rate differential for municipal residents is warranted at this time. It believes that while State action could correct some inequities it might also tend to promote the uneconomical or ineffective providing of services by small units of government and limit the flexibility of transferring or merging governmental services at the local level. The Committee also believes because of the variation in the types of governmental services provided by the local governments that determination of the countywide nature of a service can only be made at the county level and not at the state level.” (Emphasis added.)

Special note was taken by the Committee with respect to Anne Arundel County as shown by the following excerpt from the Report’s Conclusions and Recommendations:

“The Committee notes in Anne Arundel County where the question oí a property tax rate differential has been the subject of considerable discussion by both public officials and private citizens that the County Council of Anne Arundel County and the Mayor and Aldermen of the City of Annapolis have enacted similar resolutions calling for a study of county-city fiscal relationships by a management and fiscal consultant. The Committee hopes that both units of government take prompt action to initiate this study.”

A consulting firm was indeed engaged to make a study and report of the fiscal relationships between the City of Annapolis and the County but the results of its Report do not appear in the record. It is disclosed, however, that there was subsequently established a Committee known as the “Annapolis Fair Tax Committee”, of which the appellant, John H. Griffin, was chairman. A communication from Mr. Griffin to the County Council dated May 14, 1973, annexed to the bill of complaint, made it plain that the Committee did not object to the County’s not expending in Annapolis tax monies for fire and police protection, public works, recreation and parks and similar services; but that it was considered unlawful and improper for the County to tax city residents for these and similar services which were being furnished only to that part of the County outside the city limits of Annapolis. During the fiscal year 1972-73, appellant stated, the excess levy for these services on Annapolis residents had been calculated by a joint City-County Tax Differential Committee to be more than $700,000. Attached to the communication was an Ordinance adopted by the County Council of Prince George’s County in its 1972 Legislative Session providing for “a reduced tax to citizens in a municipality for services rendered by a municipality which relieve the County from increased expenditures to supply these services.”

Notwithstanding the broad language of the prayers for relief contained in the petition below, it appears clear that appellants do not contend that they are not subject to the imposition of any ad valorem property tax by the County. Rather, their contention is that they are being illegally taxed by the County for a substantial portion of the County tax levy.

II

CONSTITUTIONAL ISSUES

Since the power to tax is an inherent attribute of sovereignty and since a County is only an agency or subdivision of the State, it is fundamental that the power of a County (or County Board of Commissioners) to tax is not inherent but is a delegated power and exists only when and to the extent granted by the State. The authority of a municipality to tax is similarly a delegated power. The County’s authority to tax is derived from Article XI-A of the Constitution and Code, Article 25A, Section 5 (O); a municipality’s authority derives from Article XI-E of the Constitution and Code, Article 23A, Section 2.

With respect to all taxes in Maryland — State, County and Municipal — Article 15 of the Declaration of Rights provides that they . . . “shall be uniform within each class or sub-class of land, improvements on land and personal property which the respective taxing powers may have directed to be subjected to the tax levy; yet fines, duties or taxes may properly and justly be imposed, or laid with a political view for the good government and benefit of the community.” (Emphasis added.)

Another applicable State constitutional provision is Article 23 of the Declaration of Rights, the due process clause: “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”

Also generally applicable, of course, are the provisions of Section One of the Fourteenth Amendment to the Constitution of the United States: “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Both in the bill of complaint and in argument below, considerable emphasis has been laid by appellants upon the claim of “double taxation.” As Mr. Justice Holmes stated in now familiar language in the case of Fort Smith Lumber Company v. Arkansas, 251 U. S. 532 (1920): “The objection to the taxation as double may be laid on one side. That is a matter of state law alone. The Fourteenth Amendment no more forbids double taxation than it does doubling the amount of a tax; short of confiscation or proceedings unconstitutional on other grounds.” Double taxation occurs only when “two taxes of the same character are imposed on the same property, for the same purpose, by the same taxing authority within the same jurisdiction during the same taxing period.” Rhyne, Municipal Law (1957), p. 673, cited in Associated Home Builders v. City of Walnut Creek, 484 P. 2d 606, (Cal. 1971). Where there are different taxing authorities, as here, it is established that there can be levies by the respective taxing entities on the same property for similar purposes without resulting in double taxation. Kucharski v. White, 247 N.E.2d 428 (Ill. 1969). In Kucharski the Supreme Court of Illinois upheld a tax levy by a municipality for, among other things, the support of a library facility notwithstanding the fact that the taxpayer had already been taxed by the “Prospect Heights Library District” for another library. See also Board of Highway Commissioners v. City of Bloomington, 97 N. E. 280 (Ill. 1911); Fox Bakersfield Theatre Corp. v. City of Bakersfield, 222 P. 2d 879 (Cal. 1950). Baker v. Druesedow, 263 U. S. 137 (1923).

The tax challenged here is the only ad valorem tax levied on the appellants’ property by Anne Arundel County. As the chancellor observed: “The city residents are taxed as county residents in the same manner and according to the same rate (before any differential adjustment) as those county residents living outside the city. The county imposes no additional tax on the city dwellers, as such.” (Emphasis added.) If the County were to impose an additional levy of the same kind, double taxation would result. That, however, is not the case.

All assessable real property within the City is taxed by the County at the same rate. Thus, the rule of uniformity — the principal mandate of Article 15 of the Declaration of Rights — is satisfied. As stated in McQuillin’s treatise on Municipal Corporations (3d ed., Vol. 16, § 44.21): “The rule of uniformity is not violated by double taxation resulting from taxes levied by different authorities if each authority adheres to the uniformity rule in its levies.” State v. Leaksville, 165 S.E.2d 201 (N.C. 1969); City of Pelly v. Harris County Water Control & Improvement District, 198 S.W.2d 450 (Tex. 1946).

Furthermore, the constitutionality of the imposition of an ad valorem property tax does not require the demonstration of specific benefit to the property owners who are taxed. This principal was stated by the Supreme Court of the United States in the case of St. Louis and S. W. Railway Co. v. Nattin, 277 U. S. 157 (1928) and Memphis and C. Railway Co. v. Pace, 282 U. S. 241 (1931). In the Nattin case the Court observed:

“As the assailed tax was general and ad valorem its legality does not depend upon the receipt of any special benefit by the taxpayer.”

In Pace, supra, the Court stated:

“Where the tax is laid generally on all property or all real property within the taxing unit, it does not become arbitrary or discriminatory merely because it is spread over such property on an ad valorem basis; nor where the tax is thus general and ad valorem does its validity depend upon the receipt of some special benefit as distinguished from the general benefit to the community.” (Emphasis added.)

Speaking more generally with respect to the element of benefit, the Supreme Court said in Carmichael v. Southern. Coal & Coke Co., 301 U. S. 495 (1937):

“A tax is not an assessment of benefits. It is as we have said, a means of distributing the burden of the cost of government. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes.” (Emphasis added.)

In a relatively recent State case, People ex rel. Hanrahan v. Caliendo, 277 N.E.2d 319 (Ill. 1971) the Supreme Court of Illinois rejected a challenge to the constitutionality of the State’s Urban Transportation District Act and the creation pursuant thereto of the Chicago Urban Transportation District, established for the purpose of providing mass transportation facilities. Pursuant to the Act, the City Council of Chicago adopted a resolution designating an area within the City as an urban transportation district and plans were adopted to construct new rapid transit routes and systems at an estimate cost of $750,000,000. Part of the cost was to be funded through the issuing of bonds and the funds to satisfy the bonds were to come from general taxes to be levied on the real and personal property situated in the district. The Court upheld the contention that the legality of the district did not depend on whether the property within it would be specifically benefited, “as it was created for the ‘general benefit of the community’ within the meaning of Memphis and Charleston Railway Co. v. Pace, 282 U. S. 241, 51 S. Ct. 108, 75 L. Ed. 315, and St. Louis and Southwestern Railway Co. v. Nattin, 277 U. S. 157, 48 S. Ct. 438, 72 L. Ed. 830.” The Court also observed:

“[T]he defendants contend, and correctly, we consider, that general public improvements, to be paid for by general ad valorem property taxes, do not impose upon the taxing authority any burden of showing special benefit. In Nattin the court said: ‘As the assailed tax was general and ad valorem, its legality does not depend upon the receipt of any special benefit by the taxpayer. ’ ” (Emphasis added.)

In the instant case the proceeds from the ad valorem tax levied by the County are being employed for the benefit of the residents of Anne Arundel County. This is all that the Fourteenth Amendment of the United States Constitution specifically requires and we are constrained to agree that the fact that the appellants have not received what they conceive as their “pro rata” proportion of benefits is insufficient to support a claim that the County has violated the federal Constitution.

Furthermore, we are impelled to the conclusion that there is no constitutional basis for appellants’ claim of unlawful discrimination against residents of the County residing in Annapolis in favor of the County residents residing elsewhere. Unfortunately for the taxpayers, the standard of review of State policy under the equal protection clause of the Fourteenth Amendment is narrow indeed. As the Supreme Court stated in San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 40 (1973):

“A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State’s system be shown to bear some rational relationship to legitimate state purposes.”

And where questions of State fiscal policy are concerned the above statement of the Court is particularly appropriate, as is demonstrated in the following statement in Madden v. Kentucky, 309 U. S. 83, 87-88 (1940):

“It has . . . been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. . . .” (Emphasis added.)

See also Becker v. Levitt, 489 F. 2d 1087 (2d Cir. 1973).

Moreover, appellants are not aided by the cases on which they rely: County Commissioners of Carroll County v. Mayor and Common Council of Westminster, 123 Md. 198, 91 A. 412 (1914) and the so-called Laurel cases, County Commissioners of Prince George’s County v. Commissioners of Laurel, 51 Md. 457 (1879) (Laurel I) and The County Commissioners of Prince George’s County v. Commissioners of Laurel, 70 Md. 443 (1889) (Laurel II).

In these cases legislative enactments had authorized tax adjustments from the County to the Municipality located within the County. In Laurel I, an act of the General Assembly of Maryland directed that taxes levied for road purposes on real estate in the Town of Laurel were to be paid to the Commissioners of the Town for the purpose of road improvements within the corporate limits. The Court of Appeals held that there was no infringement upon Article 15 of the Bill of Rights because the statute, the Court found, merely applied the road tax to roads in which the entire public had an interest although located within the limits of Laurel. (The law was, however, held to be repugnant to a subsequent statute which introduced a new policy with respect to the public roads of Prince George’s County.)

In Laurel II, the Court was confronted with a statute “more sweeping in its operation” and presenting a different question. This statute took not only the road tax but all taxes levied on real estate in the Town of Laurel and applied them not solely to the roads, as was done by the Act involved in Laurel I, but to any other desirable improvements in the Town which the Town Commissioners might decide proper. The Court of Appeals held the enactment unconstitutional, under Article 15 of the Bill of Rights, saying:

“It is too plain for argument that such legislation cannot be sustained. It is practically exempting the owners of real estate in Laurel from contribution pro tanto to the necessary expenses of the county government. If it be competent to take the taxes levied upon the real estate in the town for such purposes, all taxes levied on the personal property within the town limits could be taken for the same object, and thus the citizens of Laurel would, in fact, be relieved from contributing a farthing to the support of the county government; and the whole county expenses would be thrown on those who live in the rural districts; and the rural districts would be indirectly supporting a corporation which gave them no protection or advantages. . . . it is too plain for discussion, that the citizens of the town are relieved from sharing the expenses of the county, while enjoying all the benefits of county government. This is in plain violation of Art. 15, of the Bill of Rights.” (Emphasis added.)

The Carroll County case, supra, held that an Act of the General Assembly was not in violation of Article 15 of the Bill of Rights in providing that it was the duty of the County Commissioners of Carroll County to pay annually to the Mayor and Common Council of Westminster one-half the amount of taxes levied and collected annually by the County for road purposes upon property within the limits of the City, to be used by the City for the repair, maintenance and improvements of City streets and roads. The question posed, the Court pointed out, was whether the Legislature could lawfully direct the application of money raised by taxation upon property within the corporate limits to defray certain specific expenses within the same limits. The Court cited with approval the case of Board of Supervisors v. The City of Springfield, 63 Ill. 66 (1872), in which it was held that the revenues of a County are not the property of a County in the sense in which the revenue of a private corporation is regarded, that the power of the Legislature in regard to them is plenary, and that an act providing for an apportionment between a County and a City of tax monies does not contravene a constitutional provision with regard to equal and uniform taxation.

Thus it is plain that these cases would tend to support the proposition that a legislative enactment providing for a property tax rate differential for municipal residents would not offend Article 15 of the Declaration of Rights so long as it did not relieve the City property owners of all tax liability for county services. This, however, is far from sustaining appellants’ claim that Article 15, under the circumstances of this case, requires a County to remit to a municipal corporation within its boundaries a portion of the proceeds of the County ad valorem tax collected within the confines of the municipality.

Appellants’ reliance upon certain legislative enactments of the General Assembly of Maryland prior to the adoption of the Anne Arundel County Charter in 1964, as well as the provisions of the charter itself, is similarly misplaced. Appellants cite, for example, the provisions of Chapter 251, Public Local Laws, 1949, whereby the Legislature authorized and empowered the County Commissioners to appropriate funds for fire protection purposes in each of the Election Districts of Anne Arundel County and provided that the tax levied in Annapolis was to be paid to the City for distribution to volunteer fire companies; Chapter 717 of the Public Local Laws, 1953, which authorized the County to levy a special restriction tax, but provided that such levy would not apply to the Sixth Election District, the City of Annapolis; Chapter 717, Public Local Laws, 1953, which excepted Annapolis from legislation authorizing the Commissioners to set up garbage zones; Chapter 790, Public Local Laws, 1959, which empowered the County Commissioners to borrow funds for construction and improvement of roads and to issue and sell bonds to be funded by tax levy upon each of the eight special taxing districts corresponding to the established election district, but excepting the City of Annapolis from its provisions.

These statutes are inapposite. The issues in the present case do not concern legislative authority to create special use or taxing districts wherein the proceeds from the special taxes can be expended only in the district in which they are collected.

Finally, the applicable provisions of Section 718 of the Charter of Anne Arundel County supply no strength to appellants’ position. The specific language to which appellants appear to advert is the following sentence from Section 718 b relating to “General Revenue and Receipts and Appropriations:

“A tax imposed upon all assessable property or class of property in the County which exempts assessable property in an incorporated municipality subject to the provisions of Article XI-E of the State Constitution shall not be deemed or construed to be a ‘special tax’ for the purposes of this section and all receipts from such tax shall be paid into and appropriated from the general fund.” (Emphasis added.)

And also the provisions of subsection d relating to levies for roads:

“No tax for the purpose of raising revenue for the construction and maintenance of public roads shall be levied upon any assessable property in the County except on a Countywide basis, exclusive of incorporated municipalities subject to the provisions of Article XI-E of the State Constitution which operate and maintain their own road or street system.” (Emphasis added.) “It would give a strained and unnatural meaning to the word to hold that it included such activities of the Council as the adjustment of the fiscal affairs of the county even if these activities included the appropriation of money by resolution. What those who drafted the amendment were trying to do was not to restrict county authorities in these duties long exercised by them. The restrictions were intended to apply to the exercise of the power of local legislation, whether such exercise was by an enactment called a ‘law’ or by one termed an ‘ordinance’. The nomenclature used does not change this obvious intention, nor does it lead us to any other conclusion in the interpretation of the constitutional provision. We do not think the budget and levy making power is affected by the proviso in Section 3, and we hold that the budget and the appropriation and the tax levy are none of them ‘legislation’ as the word is used in that proviso. ” (Emphasis added.)

Again, this is at best a recognition of the propriety of enactments extending special tax treatment to incorporated towns and cities but to hold that such special treatment is mandated would be indeed a tortured and wholly improper interpretation.

We note the rather novel argument advanced for the first time in appellants’ reply brief that the appellants’ real complaint is not that there is a violation of the uniformity requirements of Article 15 of the Declaration of Rights but, rather, a violation of Article 11A of the Maryland Constitution which provided for chartered counties. Appellants argue that Article 11A, Section 3, expressly prohibits the County from enacting laws or regulations for any incorporated municipalities .. . “on any matter covered ... by the Act incorporating it, or any subsequent Act or Acts amendatory thereto” ; that Section 44 of the City Charter empowers the City to provide by Ordinance “for the levying and collection, without limitation, upon all property within the present or future limits... of ad valorem taxes . . . necessary to meet its obligations. . . .” The adoption of a tax levy by the County, it is contended, constitutes the enactment of a law and, the syllogism runs, when the levy includes a charge to the property owners for municipal services to be expended outside the City similar to those provided by the City, the levy is an unconstitutional enactment in violation of the above prohibition contained in Article 11A.

We think that the decision of the Court of Appeals in Schneider v. Lansdale, 191 Md. 317, 61 A. 2d 671 (1948) undermines appellants’ contentions. In Schneider the Court had before it for decision the question whether the adoption by the County of a budget and the enactment of appropriations and tax levy measures constituted “legislation” within the meaning of Section 3 of Article 11A which required that all legislation must be enacted within one month during the year. The case involved the proposed Charter for Montgomery County, scheduled for submission to the voters in the November 1948 General Election. Article 2, Section 3 of the proposed Charter provided that the County Council should sit in Legislative Session during May of each year. Other provisions required public hearings on the expense budget between June 10th and June 15th, the adoption of the budget and the passage of a resolution appropriating the necessary amount, after such hearings and not later than June 30th. The lower court had held that these latter provisions concerned the enactment of legislation and since such legislation had to be enacted after the month of May, the budget and tax sections violated the provisions of Article 11A, Section 3 and were uncon stitutional.

Chief Judge Marbury in a lengthy historical analysis of the exercise of the taxing power in Maryland concluded that the power of fixing County expenditures and raising money to defray them was not a new power conferred upon the counties by Article 11A but, on the contrary, was a power always previously exercised by an appropriate agency in every county and was not “legislation” in the ordinary acceptation of the term. Judge Marbury concluded for the Court:

For the reasons above outlined, we conclude that the chancellor’s disposition of the petition before him must be affirmed. We note, however, that the opinion of the Court contains an order that plaintiff’s petition is “dismissed.” For the reasons which we have set out in Urbana Civic Association, Inc. v. The Frederick County Board of County Commissioners, et al., 23 Md. App. 49, 325 A. 2d 755 (1974), it was proper for the chancellor to dispose of the petition for declaratory judgment as on a motion for summary judgment. Nonetheless, as explained in Urbana, the correct judicial procedure is to make a written declaration of the rights of the petitioners who seek a declaratory judgment. This the chancellor accomplished in the well-considered written opinion to which we have referred. It was technical error, therefore, then to order that the petition be dismissed, an error which we find possible to correct by a modification of the final Order to state that summary judgment is granted to the appellees.

Because none of the appellants is entitled to the relief denied by the trial court, we do not reach the subsidiary question of their entitlement to a class suit. See, Borden v. Director State Department of Assessments and Taxation, et al., 19 Md. App. 112, 309 A. 2d 773 (1973).

We are constrained to observe, in affirming the chancellor’s action, that fundamental considerations of fairness indicate that the City of Annapolis — and perhaps other municipalities throughout Maryland — may be entitled to more equitable tax treatment by the counties than they receive. That the problem of County and Municipal fiscal relationships is susceptible of local legislative adjustment appears to have been demonstrated by the action in 1972 of the County Council for Prince George’s County, to which we have referred. We have found that appellants in this case are without a judicial remedy; but even if their cause were amenable to judicial intervention, the very nature of the problems involved in adjusting City-County taxation, with their complex economic and policy considerations, argues persuasively for legislative rather than judicial action.

Judgment modified and as modified affirmed; costs to be equally divided.

      . Appellants conceded below, in their oral argument, that they were legally unable to justify their prayers for damages or a refund of taxes previously paid.

      . An exhibit annexed to the bill of complaint, and represented to be a statement of the County’s “intent” appears to constitute a work sheet relating to the County Budget for the fiscal year 1966 at the top of which it is stated: “This year a formula was developed to establish a proper relationship within the City of Annapolis regarding their proportional costs of the total County operation. Through this formula, Annapolis will not be called upon to pay the County for services that are being supplied through their own City government.” No reference to this exhibit was made in the proceeding below, nor upon this appeal.

      . Report of the Maryland Commission on City-County Fiscal Relationships transmitted to J. Millard Tawes, Governor of Maryland, on December 30,1963, by Clayton C. Carter, Chairman.

      . This Report of the Legislative Council resulted from the referral to the Council of House Bill 1473 introduced by Delegates Fornos, Anderson and Allen of Anne Arundel County and Delegate Santangelo of Prince George’s County which would have required county governments to levy a tax on property located within the municipal corporation which reflected only those services which the County provided to municipal residents; and pot to reflect expenditures for services provided solely to residents outside of municipal corporations such as police and fire protection, street maintenance and lighting, refuse collection, code enforcements, planning and zoning, parks and recreation and utilities.
      In addition, Senate Bill 150, introduced by Senator Conroy of Prince George’s County, has been referred to the Legislative Council after an unfavorable report by the County’s senatorial delegation.

      . For example, some municipal expenditures are supplemental to and not in lieu of county services, such as a county park outside the municipal limits which also benefits the municipal residents.

      . The report, by the Davon Management Company of Wash., D.C., was transmitted to the City-County Tax Differential Committee on May 1,1971. The first of three major findings contained in the report was the following: “First, a review of county service benefits as distributed between city and other county taxpayers reveals that for true equity, the city taxpayer should receive tax relief in recognition of a number of county services of which the city resident receives no obvious benefit. In all cases the lack of benefit to the city resident stems from the fact that the city provides the same service as the county within its boundaries. The functional areas where city residents do not receive' proportionate benefits are: roads and bridges, storm drains, mosquito control, street lights, signalization, police, fire inspections and permits (other than electrical inspections and animal control), planning and zoning and recreation and parks.” (Emphasis in original.)

      . Bill #CB 205-1972 introduced by Councilmen White, Francois and Hart on November 6, 1972 to add a new section 7-5.3 to the Prince George’s County Code, adopted November 29,1972.

      . Appellant Griffin, according to the bill of complaint, was in effect overcharged by the County in the sum of $74.83 for the 1972-3 tax year. This, he alleged, was the amount which should have been deducted from his County tax bill of $384.31 and represented “the unlawful double taxation levied by the County for the said 1972-3 tax year.”

      . The argument contained in appellants’ reply brief that Article 15 of the Declaration of Rights requires that ad valorem taxes imposed by the County not only be uniform but also benefit the community being taxed wrongly seems to assume that the term “community” is the geographic area outside the city limits. The obvious meaning of the “community” which is to be benefited by the appropriate tax is the political subdivision itself — here, the entire County, including the land within the city.

      . It was held, however, that these provisions were not so inseparable from the remainder of the Charter as to prevent the submission of the other part to the voters. Art. XI-A was amended in 1956 (1955, Ch. 557, ratified Nov. 6, 1956) to extend the legislative sessions to forty-five days “which may but need not be consecutive.”