author: Lowe, J.,

text:
    WASHINGTON SUBURBAN SANITARY COMMISSION v. PRIDE HOMES, INC. et al.
    [No. 379,
    September Term, 1980.]

      Decided December 15, 1980.

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

      Roger C. Duncan for appellant.

      James P. Salmon, with whom were Sasscer, Clagett, Channing & Bucher on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

In 1968 appellee Pride Homes, Inc. conveyed a right-of-way to appellant Washington Suburban Sanitary Commission (WSSC) for the installation and maintenance of a sewer line, and in 1969 appellant installed the line. Some six years later, on February 5,1975, appellant first returned to the site to repair damage to the line. At that time, appellant discovered that an excessive amount of soil had been placed over the line, thereby impeding its repair efforts. A trespass and nuisance suit filed in the Circuit Court for Prince George’s County ended by summary judgment entered in favor of appellees on the ground that the suit was barred by the statute of limitations.

Appellant’s single contention on appeal is that the trial judge erred because the statute of limitations does not run against an agency of the State of Maryland. We emphasize that appellant’s contention is a narrow one, not addressing any peripheral questions of limitations applicability, such as when its cause of action accrued (See, e.g., Poffenberger v. Risser, 46 Md. App. 600 (1980), and Moy v. Bell, 46 Md. App. 364 (1980)), or whether the service provided by appellant was proprietary or governmental (See, e.g., Goldberg v. Howard Co. Welfare Bd., 260 Md. 351 (1970), and Loan Corporation v. Baltimore, 175 Md. 676 (1939)). We will respond as narrowly as the issue was posed.

Appellant relies solely upon two cases. The first, Central Collection Unit v. Atlantic Container Line, 277 Md. 626, 628 (1976), espouses the principle of law relied upon:

"that limitations may not be asserted against the state when, in its sovereign capacity, it sues in its own courts.”

The second, Katz v. Washington Suburban Sanitary Commission, 284 Md. 503, 509 (1979), is relied upon because it held that the WSSC is a "State Agency,” apparently reasoning that because it has some of the attributes of its sovereign (e.g., the power of eminent domain and the power to create an employee merit system, Id. at 509), it has them all.

But appellant chooses to ignore the blatant distinction in the very title of a case which it cites as Central Collection Unit v. Atlantic Container Line. The appellant as properly designated in that case was Central Collection Unit, State of Maryland. There, it was the sovereign suing, and its unit was appended as descriptive, rather than prerequisite. Here, the WSSC may not sue in the name of the State because it is neither sovereign nor issue of the sovereign. It is a hybrid body corporate conceived as a result of a ménage á trois and derived primarily from the legislative loins of Montgomery and Prince George’s Counties. See Montgomery County, Md., Code ch. 86 (1972, 1977 Repl. Vol.) and Prince George’s County, Md., Code App. I (1975 ed.). See, also, Washington Suburban Sanitary District (WSSD) Code (1970). It was not until 1971 that it was given the imprimatur of sovereign legitimacy when the WSSC Code was legalized by the General Assembly in 1971 Md. Laws, Ch. 115.

In Neuenschwander v. Washington Suburban Sanitary Commission, 187 Md. 67 (1946), the Court of Appeals toiled with the task of auspicating for the State that which the State had had thrust upon it but was not yet quite able to adopt as its own. Noting that it was a "public corporation”. deriving its powers from the public local laws of the State’s progeny (the counties involved), the Court reasoned that the WSSC was a "municipal corporation,” as were the counties from whence it came. Id. at 74-76.

In light of that, it would seem that the Central Collection Unit case relied on by appellant should have supplied it with the answer to the single question it poses. As the Court pointed out, its discourse in that case was necessary to distinguish a previous holding which clearly established the law applicable to the case at bar.

"We have considered this matter at some length, in order to distinguish Goldberg v. Howard County Welfare Bd., 260 Md. 351, 272 A. 2d 397 (1971), upon which Atlantic relies. There, the Welfare Board brought suit in 1969 to recover some $9,314.09 in public assistance paid Harry L. Duvall between 1951 and 1969, and Messrs. Goldberg and Kane, trustees for Mr. Duvall, raised the defense of limitations. In Goldberg, we held that limitations were not a bar in an action in which a political subdivision was exercising a governmental function. It seems to us that Atlantic can derive small comfort from this. The distinction between the public, or governmental function, and the private, or proprietary right, which may be crucial in a suit brought by a political subdivision, has no more applicability in a suit brought by the State, in its capacity as sovereign, than it does in cases involving the assertion of adverse possession against the State.” Central Collection Unit, supra at 630.

Appellant, however, cannot fit itself into the Central Collection Unit category. Time stands still only for the sovereign, i.e., "in a suit brought by the State, in its capacity as sovereign.” The WSSC is a far cry from being "the State, in its capacity as sovereign.”

Even if this were not so, we could not conceive that when the General Assembly enacted its local laws creating the WSSC from the counties involved, it intended to grant it the right to sue without subjecting it to the same defenses available to all litigants. By the very nature of our limitations statute, which was created as a condition precedent to suit, Donnally v. Welfare Board, 200 Md. 534, 539 (1962), generally applicable to all litigants, the Legislature obviously intended to subject corporate litigants thereafter created as well. If statutory time conditions did not run against such public corporations, court rules with similar time constraints could also be ignored with impunity.

We conclude by responding briefly to an oral Parthian dart shot by appellant at argument when retreating from an attack by its judicial inquisitors. It suggests that Katz, supra, by finding the WSSC to be a State agency, reversed the holding of Neuenschwander that the WSSC was a municipal corporation. It is apparent after having read these cases that each was considering entirely different purposes. Katz was addressing whether the WSSC was immune from suit. Neuenschwander was analyzing the WSSC’s right to sue, which is precisely the subject of the instant case. Notably thé Court of Appeals never mentioned Neuenschwander in Katz, and we are quite certain that if the Court of Appeals chooses to reverse itself, it will do so clearly.

Judgment affirmed.

Costs to be paid by appellant.

      . This issue also arose in Prince George’s County, Maryland, et al. v. Herschel Blumberg, et al., 288 Md. 275 (1980). But the Court of Appeals ultimately did not determine whether the WSSC enjoys sovereign immunity from suits, finding instead that the suit against the WSSC in that case had been barred by plaintiffs’ below failure to exhaust their administrative remedies.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    T & R JOINT VENTURE v. OFFICE OF PLANNING AND ZONING OF ANNE ARUNDEL COUNTY ET AL.
    [No. 391,
    September Term, 1980.]

      Decided December 15, 1980.

      The cause was argued before Gilbert, C. J., and Melvin and Wilner, JJ.

      Thomas M. Downs, with whom were Harry C. Blumenthal and Blumenthal, May, Downs & Merrill, P.A. on the brief, for appellant.

      Steven P. Resnick, Deputy County Solicitor for Anne Arundel County, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

This is a zoning case, but the issue before us is solely one of "standing” — whether the Anne Arundel County Office of Planning and Zoning (OPZ) had the right to appeal a decision of the Zoning Hearing Officer to the County Board of Appeals and thence to the circuit court. The Board, applying the law then in effect, concluded that it did not, and thus dismissed OPZ’s appeal to it. The court, by applying a new ordinance, enacted during the pendency of the subsequent judicial appeal, concluded that OPZ did have the requisite standing, both before the Board and before it. The theretofore successful applicant (appellant) has appealed both aspects of the court’s ruling.

We may best approach the issue before us by first considering briefly the statutory process for implementing zoning changes in Anne Arundel County and the role played by the three county agencies most directly involved in that process. These agencies are OPZ, the Zoning Hearing Officer, and the Board of Appeals, each being created by, and drawing its basic authority from, the county charter.

OPZ is created by § 530 of the charter. Headed by a Planning and Zoning Officer, it is responsible for "planning for the physical development and growth of the County,” including preparation of a Master Plan for the county, and the "preparation, administration and enforcement of a zoning map and of zoning rules and regulations which shall constitute a zoning code.” These rules and regulations have legal effect only upon approval by the County Council through the enactment of an ordinance.

In addition to its planning function, vested by the charter, OPZ also performs certain administrative duties in terms of applications for zoning changes. The county code requires that applications for zoning map amendments, special exceptions, and variances be filed with OPZ. That office then sees to it, directly or indirectly, that the proper notice is posted on the property, and ultimately forwards the application to the Zoning Hearing Officer along with its comments. OPZ is authorized to appear at the hearing before the Zoning Hearing Officer and present its position with respect to the application.

The Office of Zoning Hearings is created by § 534 of the county charter. It is to be administered by the Zoning Hearing Officer who, under § 535, is responsible for conducting public hearings on petitions for zoning changes or reclassifications. He is authorized to grant variances and special exceptions "[sjubject to appropriate principles, standards, rules, conditions and safeguards . . .,” and he may also grant or deny reclassifications "in accordance with appropriate zoning regulations.” Some of the more detailed rules governing the prehearing, hearing, and post-hearing procedures are set out in the county code. See § 13-360 (Rules IX — XVI) and §§ 13-340.5 — 13-340.9 (Alternate Zoning Regulations).

The County Board of Appeals is created by § 601 of the county charter, pursuant to the authority conferred by Md. Ann. Code art. 25A, § 5. Among its other duties, the Board hears, de novo, all appeals from orders of the Zoning Hearing Officer. Further appeal is authorized to the circuit court. See county charter, § 604; Md. Ann. Code art. 25A, § 5 (U).

The controversy here began when appellant applied to have a 17-acre tract of land rezoned from R1 Residential to C3 General Commercial. Pursuant to the procedures described above, the matter was heard by the Zoning Hearing Officer. The Planning and Zoning Officer, or her designee, appeared at the hearing in opposition to the application. The thrust of her concern, apparently, was that the rezoning would require OPZ to make substantial alterations to the various master plans. Notwithstanding that objection, however, the Zoning Hearing Officer, on April 16, 1979, approved the application.

On May 14,1979, OPZ noted an appeal from that decision to the County Board of Appeals. Appellant moved to dismiss the appeal on the ground that OPZ had no standing to bring it, not being a person "aggrieved” by the Zoning Hearing Officer’s decision. The Board held an evidentiary hearing on the standing issue and ultimately agreed with appellant’s position. On September 14, 1979, it dismissed OPZ’s appeal solely on the ground that OPZ was not "aggrieved,” and therefore had no right to appeal. As noted, OPZ then, on October 5, 1979, appealed that decision to the circuit court.

On November 6, 1979, the County Executive signed into law Bill No. 141-79 which, by amending county code, § 2-200 (Rule 5), purported to give OPZ specific authority or standing to appeal "any decision of the zoning hearing officer.” Although the ordinance, by its own terms, took effect "forty-five (45) days fr;bm the date it bec[ame] law,” which presumably would have been December 21, 1979, the court nevertheless applied the ordinance in the case pending before it and thus held that the Board erred in dismissing OPZ’s appeal.

Prior to the enactment of the 1979 ordinance, and thus at all times during which OPZ’s appeal was pending before the Board, the law governing appeals to the Board was scattered among the State Code, the county charter, and the county code, and provided as follows:

(1) Md. Ann. Code art. 25A, § 5 (U) authorized the county, by local law, to create the Board of Appeals and to provide

"for the decision by the board on petition by any interested person ... of such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of . .. the county council, as shall be specified from time to time by such local laws enacted under this subsection: An application for a zoning variation or exception or amendment of a zoning ordinance map....” (Emphasis supplied.)

Section 5 (U) further provided (and still does provide) that any "person aggrieved by the decision of the board and a party to the proceeding before it” may appeal to the circuit court, and, if "aggrieved” by the decision there, may take further appeal to this Court. The section concludes with the statement that the "review proceedings provided [in it] shall be exclusive.”

(2) Acting pursuant to this authority from the General Assembly, the county, through article VI of its charter, created the Board of Appeals (§ 601) and set forth its powers (§ 602) and procedures (§ 603). Section 602 confirms the Board’s authority to review, de novo, decisions of the Zoning Hearing Officer, but neither it nor § 603 says anything directly about the interest one must have in order to bring an appeal to the Board. The charter deals with that in § 536, part of the subtitle relating to the Office of Zoning Hearings. Section 536 provides:

"Within thirty days after a decision of the Zoning Hearing Officer is rendered, any person or persons, jointly or severally, or any taxpayer or any official, office, department, corporation, board, or bureau of Anne Arundel County aggrieved by any decision of the Zoning Hearing Officer shall have the right to appeal therefrom to the County Board of Appeals.” (Emphasis supplied.)

(3) Three sections of the county code also bear directly on this subject. Section 13-359, being part of the "regular” zoning laws codified under Article VI ("Zoning Hearing Officer”) and captioned "Appeals from orders of zoning hearing officer,” repeats verbatim the provisions of § 536 of the charter. No change has been made in that section. Its counterpart in the "Alternate Zoning Regulations,” § 13-340.10(a), was (and still is) essentially the same, although not identical. It provides:

"Within thirty (30) days of the decision of the zoning hearing officer, any person, firm, corporation or governmental agency having an interest therein and aggrieved thereby may file a notice of appeal with the county board of appeals, pursuant to article 25 A of the Annotated Code of Maryland, and Article VI of the Charter of Anne Arundel County, Maryland (and any ordinance, rules or regulations adopted pursuant thereto).” (Emphasis supplied.)

Finally, there was § 2-200 (Rule 5), being part of article II (Board of Appeals), subtitle 2 (Rules of Practice and Procedure). Prior to the new ordinance, the relevant part of Rule 5 was nearly identical to § 536 of the charter and § 13-359 of the code. It expressly limited the right of appeal from the decision of the Zoning Hearing Officer to persons (and county officials and agencies) "aggrieved” by the Zoning Hearing Officer’s decision.

What we have, therefore, is a State statute (§ 5 (U)), empowering the county to confer standing before the Board to "any interested person,” but the actual conference of standing only to persons and agencies "aggrieved” by the lower administrative decision. The initial question then is whether, absent the new ordinance, OPZ was so "aggrieved,” that being the applicable standard in effect at the time of the administrative proceedings.

The condition of "aggrievement,” of being "aggrieved,” is a common prerequisite in the laws relating to administrative appeals, and particularly in zoning cases. The Court of Appeals first articulated some general standards or guidelines for determining who satisfies that condition (and who does not) in Bryniarski v. Montgomery County, 247 Md. 137 (1967). Though dealing there with the question of standing to appeal from a Board of Appeals rather than to it, the concepts are the same, it seems to us, in that the standard is still the requisite interest the would-be appellant must have in the decision he seeks to set aside. The Court noted, at p. 144:

"Generally speaking, the decisions indicate that a person aggrieved by the decision of a board of zoning appeals [read here, zoning hearing officer] is one whose personal or property rights are adversely affected by the decision of the board. The decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from that suffered by the public generally.”

Normally, in these cases, the appellant whose standing is questioned is a neighboring landowner. That was the situation in Bryniarski, and it was no doubt in that context that the Court set out some guidelines as to who is or is not "aggrieved”: an "adjoining, confronting or nearby property owner” is aggrieved; a person whose property is "far removed” from the subject property is ordinarily not aggrieved unless he can demonstrate that his “personal or property rights are specially and adversely affected. . . .”247 Md. at 145.

The Bryniarski test or definition of "aggrievement” has been confirmed and applied many times by the Court of Appeals. See, for example, Aubinoe v. Lewis, 250 Md. 645 (1968); Shore Acres Improvement Assoc., Inc. v. Anne Arundel County, 251 Md. 310 (1968); Wier v. Witney Land Co., 257 Md. 600 (1970); also Grooms v. LaVale Zoning Board, 27 Md. App. 266 (1975).

Appellant suggests that under Bryniarski it is necessary for the protestant to be a nearby property owner in order to have standing as an “aggrieved” person, and that such requirement applies equally to county agencies as it does to private individuals. Certainly, the basic equation is correct; as the statutes and ordinance (prior to the 1979 ordinance) are worded, county officials and agencies have no better or different inherent standing than do private individuals. But the underlying test is not so stringent. Bryniarski does not require the ownership of nearby property as the exclusive prerequisite. It also speaks of alternative "personal or property rights” that may provide an adequate interest in the proceeding.

What the cases have held, however, is that a public official, agency, or entity is not legally "aggrieved” by virtue of alternative personal or property rights merely because it has public duties and responsibilities of one sort or another, or because it represents the citizens of the subdivision. See Greenbelt v. Jaeger, 237 Md. 456 (1965); Maryland-National Capital Park and Planning Comm. v. Rockville, 269 Md. 240 (1973). In each of these cases, the Court concluded, directly or indirectly, that because the public agencies involved neither owned land near the subject property nor demonstrated a comparable special interest or damage, they were not (or would not have been) “aggrieved” by the zoning decision they sought to challenge, and thus did not have standing to pursue an administrative appeal from that decision.

It is conceded here that neither OPZ nor the county owns any property in sufficient proximity to the land in question to meet the more common and traditional test of aggrievement. The county relies instead on the fact that if the land is rezoned, OPZ will be required to make major revisions in the various master plans for which it is responsible. It is not suggested that the rezoning in question would significantly affect the health or welfare of the county or the basic integrity of the various master plans. Rather, it is asserted that any change in zoning means "that we have to go back to the drawing boards” in terms of demographic assumptions used in the plans.

That is clearly not the type of special interest, or personal or property right, required under the cases. The county is not static; the mere fact that a zoning change may require OPZ to review, or perhaps revise, some aspect of its master plan does not make it "aggrieved” by the change. See, in particular, Maryland-National Capital Park and Planning Comm. v. Rockville, supra, 269 Md. 240. Many people — public officials and private individuals — are put to extra work, or inconvenience, or even expense by zoning decisions; but that does not necessarily make them "aggrieved” in the legal and statutory sense. Compare Peoples Counsel v. Williams, 45 Md. App. 617 (1980).

Accordingly, we conclude that OPZ was not an "aggrieved” person and therefore, absent the 1979 ordinance, had no right of appeal to the Board from the action of the Zoning Hearing Officer.

The new ordinance, of course, sought to confer that authority. It amended § 2-200 (Rule 5) of the county code (but not § 13-359 or § 13-340.10 (a), much less § 536 of the county charter), by adding the following:

"The right of appeal is explicitly granted to the planning and zoning officer and is not limited to cases in which the county has an interest in the land subject to the decision of the zoning hearing officer. The planning and zoning officer, in his discretion, may appeal any decision of the zoning hearing officer notwithstanding his lack of a personal or property right adversely affected by the decision of the zoning hearing officer.”

In considering the effect of this ordinance, we note initially that appellant has not challenged its basic validity — whether it conforms to the supervening requirements of either art. 25A, § 5 (U) or the county charter — and we shall therefore not address that question. Rather, we shall assume the validity of the ordinance and consider only its applicability.

In giving effect to the new ordinance, the trial court relied on one of the rules of construction pertaining to retroactivity stated in Janda v. General Motors Corp., 237 Md. 161 (1964). Although pointing out that, absent an express legislative intent, statutes are not ordinarily applied retroactively, the Court held, at p. 169:

"A statute which affects or controls a matter still in litigation when it became law will be applied by the court reviewing the case at the time the statute takes effect although it was not yet law when the decision appealed from was rendered, even if matters or claims of substance (not constitutionally protected), as distinguished from matters procedural or those affecting the remedy are involved, unless the Legislature intended the contrary.”

Janda followed directly on the heels of Yorkdale Corp. v. Powell, 237 Md. 121 (1964), decided three days earlier. Yorkdale, a zoning case, applied the same principle, drawing upon earlier cases for the proposition that "an appellate court is bound to decide a case according to existing laws, even though a judgment rightful when rendered by the court below should be reversed as a consequence.” See 237 Md. at 124, quoting from Woman’s Club v. State Tax Comm., 195 Md. 16, 19 (1950), in turn quoting from earlier cases.

The statement of principle in Janda, despite some uneven application, appears to be still valid as an exception to the "widely recognized principle that the retroactive operation of a statute is disfavored.” State v. Johnson, 285 Md. 339, 343 (1979), and compare Attorney Grievance Comm. v. Klauber, 284 Md. 306 (1979) and State Comm, on Human Relations v. Amecom Div. of Litton Systems, Inc., 278 Md. 120 (1976). The rationale sometimes stated for this exception is that, "provided no 'vested right’ or contrary legislative intent is disturbed, it would be anomalous for a court to apply obsolete standards and issue a mandate that is inconsistent with current law.” Lucado v. State, 40 Md. App. 25, 31 (1978). The principle is an inherently rational one, but it can occasionally lead to some very unusual, and facially illogical, results.

We have found no case involving quite the same circumstances as are now before us; they are certainly unusual, if not unique. But there are a number of cases from which we may seek guidance.

One such case is United States v. Alabama, 362 U.S. 602 (1960), in which the Government sued to restrain the State of Alabama and certain of its election officials from conspiring to deny black citizens their voting rights in violation of the Fifteenth Amendment and various civil rights statutes. The action against the State was dismissed by the U. S. District Court on the ground that the Government had no legal authority to bring it. The dismissal, on that ground, was affirmed by the U. S. Court of Appeals, but, on the Government’s petition, the Supreme Court granted certiorari. While the case was pending in the Supreme Court, Congress passed the Civil Rights Act of 1960 which, among other things, specifically authorized such actions against a State. The Supreme Court, "|u]nder familiar principles,” held that "the case must be decided on the basis of the law now controlling,” and thus concluded that the District Court then did have jurisdiction, even if it were lacking it before. 362 U.S. at 604. The Court therefore vacated the judgments that had been properly rendered under the law in effect at the time and remanded the case "with instructions to reinstate the action as to the State of Alabama . . . .”

The effect of the Court’s decision in United States v. Alabama was essentially that which Janda would seem to require here — the "retroactive” conference of standing upon a plaintiff/appellant who did not have it when the action was commenced, and the consequent reinstatement of a case that had been quite properly dismissed because of the lack of standing current at the time. See United States v. Fresno Unifíed School District, 592 F.2d 1088 (9th Cir. 1979), cert. denied, 444 U.S. 837 (applying the concept in similar fashion to confer a "retroactive” standing on the Attorney General to bring employment discrimination actions against State and municipal public agencies), and United States v. County of Hawaii, 473 F. Supp. 261 (D. Hawaii 1979). See also Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Comm., 580 F.2d 698 (D.C. Cir. 1978), and Hospital Association of New York State, Inc. v. Toia, 435 F. Supp. 819 (S.D.N.Y. 1977). Compare, however, United States v. Board of Education, Garfíeld Heights, 581 F.2d 791 (6th Cir. 1978).

This aspect of Janda (and its Federal equivalent) is generally viewed as involving the retroactive application of law, and the discussion of it is normally in that context. But that view is only partially accurate. Janda really involves an admixture of both retro- and pro-spectivity; and when seen in that light, some of the facially illogical results flowing from it become a bit easier to understand and accept. It involves retroactive application in the sense that the issue before the court is ultimately resolved on the basis of principles that were not in being, or were not controlling, at the time the action was commenced (or at the time the underlying transaction occurred). But to the extent that it merely requires the court to apply the law currently in effect to a matter still before it, and thus not yet settled, the application is more in the nature of a prospective and current one.

Much of this, of course, is semantics. All of the discussion about retroactivity, of form or procedure versus substance, ultimately comes down to two things: (1) did the body that enacted the new law (whether legislative, executive/administrative, or judicial) give any clear indication as to whether or how it should be applied to pending matters, and (2) would it be basically unfair to so apply it? The Supreme Court made this clear in Bradley v. School Board of Richmond, 416 U.S. 696 (1974). It there considered the two countervailing views — one, that a new law is not to be applied in pending cases unless the law expressly says so, and the other, that such a law would be so applied unless there is a clear indication that it should not be. The Court opted for somewhat of a middle ground: "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Id. at 711.

The Court in Bradley did not define precisely what it meant by "manifest injustice,” but noted that the matter centered on (1) the nature and identity of the parties, (2) the nature of their rights, and (3) the nature of the impact of the change in law upon those rights. Although the Maryland Court of Appeals has not, to date, expressly adopted the Bradley analysis (or even cited Bradley), still, since the basic doctrine applied there is precisely the same as that announced and applied in Janda and its predecessors, and because it makes eminently good sense, we think it is a relevant and useful standard by which to gauge our own State law.

There is, of course, no clear statutory direction with respect to the ordinance before us. It took effect 45 days from enactment because that is what the county charter requires, but it is absolutely silent as to its effect on pending cases. Nor does the record reveal any legislative history from which such a direction might fairly be inferred. Thus, under Bradley, there being no clear direction "to the contrary,” in the absence of "manifest injustice,” the ordinance should be applied.

The three criteria set forth in Bradley with respect to "manifest injustice” seem to imply, at least tacitly, that "manifest injustice” must be viewed in a more or less composite fashion, and not solely from the perspective of one party. A benefit conferred on one party by a new law is, at the same time, a benefit taken from the other. Thus, whatever the court does will inevitably favor one side or the other. To apply the new law is to favor the party whom the lawmaker desired to be favored; to refrain from applying it is to favor his adversary with a benefit that the law has sought to remove from him. Against that, however, the court must always consider and give special weight to the detrimental impact of removing the benefit/detriment of the old law — that which presumably guided the conduct of the parties — for at some point there lurk the protective constraints of due process. These considerations would seem to form the necessary linkage among the three criteria.

The new ordinance, if applied, interferes with no vested or Constitutional rights. It does not control, or even affect, the merits of appellant’s zoning application. It would do nothing more than permit OPZ to have its day before the Board of Appeals. That, of course, is a detriment of sorts to appellant, who formerly was free from attack at the secondary level by OPZ; but it is not, in the grand scheme of things, all that significant a detriment. Appellant was not immune from all attack before the Board, only from those not satisfying the somewhat narrow, judicially-fashioned test of "aggrievement.” The ordinance seeks to recognize that which the courts have not — the special, important, and legally mandated public responsibilities of OPZ and, because of those special duties, it purports to give that office the status of an "aggrieved” person. The essence of the ordinance, then, if applied in this case, is to give OPZ a right to speak in the protection of its plan, and to remove from appellant the right it had to be free of OPZ opposition at the Board of Appeals level. We cannot find this to be a manifest injustice.

Appellant has also raised the issue of OPZ’s right to appeal to the circuit court from the adverse decision of the Board of Appeals. Its position is that Bill 141-79 only confers a right of appeal to the Board, not from the Board to the circuit court. The simple answer to this argument is that the new ordinance is not needed to sustain OPZ’s right to seek judicial review. Because of appellant’s motion to dismiss, the only issue litigated before the Board was OPZ’s "standing” as an appellant; the underlying zoning controversy was never directly addressed. In terms of the Board’s adverse decision, then — that OPZ had no "standing” — OPZ was an "aggrieved” party and therefore entitled to appeal under Md. Ann. Code art. 25A, § 5 (U), county charter, § 604, and county code, § 2-102.

Judgment affirmed; appellant to pay the costs.

      . It appears from the county code that there are two sets of zoning regulations in effect in Anne Arundel County — One set, denoted as "Alternate Zoning Regulations,” which governs in five tax assessment districts and parts of one other and one set for the balance of the county. The wording used to describe the procedure for initiating changes in zoning varies somewhat in the two sets of regulations, but in terms of the issue before us, the basic procedure is essentially the same. Compare § 13-360 (Rules VIII and IX) and § 13-338.7 (Alternate Zoning Regulations). At oral argument, the parties were uncertain whether this dichotomy is still in effect in light of subsequent comprehensive rezoning. We have since been advised by the County Solicitor that the alternate regulations now govern throughout the county.

      . See, for example, county code, § 13-360 (Rule VIII (a)).

      . Although our answer to this question is not directly^ determinative of this appeal, it is necessary to consider it for two reasons: first, if the answer were in the affirmative, the more thorny question of whether to apply the new ordinance would be moot, and to that extent, it is a prerequisite to our consideration of the second issue; second, it was raised below and on appeal and is therefore properly before us. It also bears indirectly on what we shall deem to be the dispositive issue.

      . By Bill No. 150-80, enacted October 22, 1980, the authority provided by the 1979 Ordinance was recodified without substantive change, as § 2-101 of the county code.

      . There have been literally dozens of cases in which the Court has been faced with the question of whether to apply an intervening change in the law to a pending case. Some of the decisions are not easy to reconcile, and thus the diligent lawyer or judge can easily find some authority for both sides of the proposition.

      . In a later case, Hamling v. United States, 418 U.S. 87,102 (1974), the Court stated the rule in much more summary fashion: "Our prior decisions establish a general rule that a change in the law occurring after a relevant event in a case will be given effect while the case is on direct review.” In the context in which that statement appears, however, and especially as Bradley is cited as authority for it, we do not consider it a departure from the two conditions mentioned in Bradley— that such application would not result in manifest injustice or contravene clear legislative intent.

      . Section 307(i). Perhaps the one principle that is constant in all the Maryland cases is that the establishment of an effective date in accordance with the governing organic law has no bearing on whether the law should be applied to cases then pending. It is an entirely neutral circumstance.

      . By way of contrast, we note the case of County Council v. Carl M. Freeman Associates, Inc., 281 Md. 70 (1977). In Freeman, the County Council for Prince George’s County, sitting as the District Council for the Maryland-Washington Regional District in Prince George’s County, approved a sectional map amendment by resolution. Freeman appealed that action to the circuit court and prevailed when the court concluded that Md. Ann. Code art. 66D, § 8-101 (fa) (1957, 1970 Repl. Vol., 1976 Cum. Supp.) required the county to act by ordinance and not by resolution. On appeal, the Court of Appeals reversed the circuit court because between the time of the lower court’s decision and the time of the appellate Court’s Opinion, the General Assembly amended the statute to allow sectional map amendments to be made by resolution. Though the zoning map was invalidly adopted and was ineffective when Freeman obtained the circuit court decision, Janda, supra, required the retroactive validation of the resolution. Freeman’s rights, it would seem, were far more significantly and detrimentally affected there than appellant’s are here.


author: Morton, J.,

text:
    WENDELL BEARD v. STATE OF MARYLAND
    [No. 421,
    September Term, 1980.]

      Decided December 15, 1980.

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

      Joseph L. Evans, Assigned Public Defender, with whom was Michael E. Marr, Assigned Public Defender, on the brief, for appellant.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Gary

      Bass, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Appellant, Wendell Beard, was convicted by a jury sitting in the Criminal Court of Baltimore (Murphy, J., presiding) of 1) first degree murder; 2) unlawful use of a handgun in the commission of a felony or crime of violence; 3) unlawfully carrying a handgun; and 4) unlawful use of a credit card. A life sentence was imposed on the murder conviction; fifteen years consecutive on the handgun violation (Md. Ann. Code art. 27, § 36B (d)); three years concurrent on the second handgun violation (Md. Ann. Code art. 27, § 36B (b)); and three years concurrent on the credit card violation.

In this appeal the following issues are presented:

"1. Should the convictions for the use of a handgun in commission of a felony and for possession of a handgun be reversed in that the State failed to show that the weapons in question were, in fact, handguns?
2. Did the trial court commit plain error in failing to instruct the jury as to the definition of and burden of proof for 'handgun’?
3. Did the trial court commit plain error in inappropriately commenting to the jury that a finding of guilt on the robbery count would be inconsistent with an acquittal on the homicide count?
4. Was the evidence sufficient to support the jury’s verdict?”

The record reveals that about 1 p.m. on September 1,1979, Officer George Trainor responded to a call over his police car radio and upon his arrival at the 900 block of Hendler’s Lane in Baltimore City he found the body of Beryl Friedrick, a white male, 43 years of age, lying in a pool of blood beside a blue Ford Torino. It was stipulated that Mr. Friedrick was pronounced dead at the Maryland General Hospital, the cause of death being a gunshot wound to his head, fired at close range from a small caliber weapon.

Darlene Roles testified she had known appellant about thirteen years and that sometime in the afternoon of September 1, 1979, he arrived at her apartment and gave her "a brown and beige bag” which he requested that she hold for him. He also showed her some credit cards in the name of Beryl Friedrick and said he wanted to turn them over to her boyfriend, Martin Venable, "because he heard Marty could work credit cards.” After appellant left the apartment, according to Miss Roles, she looked in the bag and observed blood stained clothing and a "gun and some bullets inside the cloth.”

Later in her testimony the following colloquy occurred:

"THE COURT: What kind of a weapon was it that you saw in the bag? Do you know the difference between a revolver and automatic pistol?
A. No. I don’t know nothing about guns as far as the name of them.
THE COURT: Well, do you know the difference between the kind that revolves when the trigger is pulled and the kind that ejects the shell through the top?
A. No.
THE COURT: Can you describe the one that you saw?
A. Well, the one that I seen was — it was sort of big and brown — rusty — it looked like an old gun to me. It looked rusty like. And it was big. It was rather big.”

The only other testimony regarding the gun was as follows:

"By MR. DANEMAN [Attorney for Defendant]:
Q. Ma’am, this here big, rusty gun, was it bigger than Martin Venable’s gun that he left in your apartment?
A. Yes.
Q. Martin Venable’s gun was a .38, wasn’t it?
A. I don’t know what it was.”

We think there is real merit in the appellant’s contention that his convictions for the use of a handgun in the commission of a felony and for the unlawful possession of a handgun should be reversed because the State failed to show that the weapon in question was, in fact, a handgun. We have set forth above the only testimony with respect to the description of the gun allegedly used by appellant and it is self-evident that this evidence falls far short of proving, beyond a reasonable doubt, that the victim’s death resulted from the use of a handgun as that term is defined in Md. Ann. Code art. 27, § 441.

It is certainly true that the trial judge sought to elicit from the witness, Miss Roles, a more particularized description of the gun than the State had produced with her simple answer that the bag had contained "a gun and some bullets.” The record does not disclose the size or capacity of the bag, which evidence might have indicated that it was only large enough to conceal a handgun. While it is apparent from Miss Roles’ testimony that she knew little, if anything, about guns, she did not strike us as anything but an intelligent witness. It would have been a simple matter to ask her whether the bag, which the appellant handed to her, contained a gun which is ordinarily fired by the use of a hand or whether it was a gun which normally was fired from the shoulder. Her answer might have shed some descriptive light upon the type of gun in the bag.

So often cases come before this Court when it is evident that the State makes little, if any, effort to produce evidence which would make clear that the weapon is, in fact, a handgun and yet that is the very core of the crime which the State is attempting to prove was committed by the accused. We think the prosecuting attorneys throughout the State would be well advised to give more than lip service to establishing the type of gun used by the accused.

The evidence in this case does not, in our opinion, demonstrate beyond a reasonable doubt that the gun used by the appellant was a handgun. It probably was. On the other hand, the issue is much too critical to the fair trial rights of the appellant to resolve the issue through speculation, conjecture or probability.

Accordingly, we reverse the judgments of conviction for the handgun violations.

In view of this holding we do not reach the appellant’s second issue that the trial court committed plain error in failing to instruct the jury regarding the definition and burden of proof for a handgun.

The third issue involves the trial judge’s response to a question submitted by the jury during the course of its deliberations. No objection to the court’s response was interposed by appellant’s trial counsel and since we cannot say there was any plain error in the instructions material to the rights of the appellant, the issue is not properly before this Court. Maryland Rule 757 h.

Finally, we find no merit in appellant’s contention that the evidence was legally insufficient to sustain his conviction of first degree murder and his conviction for the unlawful use of a credit card.

There was evidence that within hours of the murder the appellant handed Miss Roles credit cards which had been issued in the name of the victim; there were bloodstained clothes and a gun in the bag he handed her to keep for him; appellant’s fingerprints were found on the victim’s car; there was evidence that he and a witness named Logan attempted to use one of the credit cards to purchase a pair of trousers; and finally there was evidence that appellant told Logan he had shot a man to get the card. There was ample evidence to support the convictions.

Judgment of conviction for first degree murder, affirmed; judgment of conviction for unlawful use of a credit card, affirmed; judgment of conviction for unlawful use of a handgun in the commission of a felony, reversed; judgment of conviction for unlawfully carrying a handgun, reversed; one-half the costs to be paid by appellant; one-half the costs not reallocated as part of the judgments of this court pursuant to Maryland Rule 1082 f.


author: Liss, J.,

text:
    JUDITH B. BAER et al. v. GERALD R. BROWN et al.
    [No. 450,
    September Term, 1980.]

      Decided December 16, 1980.

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

      James M. Smith, with whom were R. Clark Faint, Jr., and Gebhardt & Smith on the brief, for appellants.

      Paul J. Feeley for appellees.
   Liss, J.,

delivered the opinion of the Court.

On July 9, 1979, the Board of Liquor License Commissioners for Baltimore County (hereafter Board) denied the application of Gerald R. Brown, G. Rich O’Shea, Paul J. Feeley and County Cork, Inc., appellees, for a new Class A (BWL) alcoholic beverages license to be used in the operation of a package goods liquor store in Manor Center, a shopping center located in Phoenix, Maryland. An appeal from that decision was filed in the Circuit Court for Baltimore County on August 6, 1979. On January 11,1980, the presiding judge issued a memorandum opinion and order reversing the Board’s decision and granting the license for which the appellees had applied. The appellants in this case, consisting of residents and businessmen of the Tenth Election District, appellants, appeal from that decision to this Court.

Manor Center is a shopping center located in a rural section of Baltimore County at the intersection of Jarrettsville Pike and Sweet Air Road. The section is known as "Four Corners” and is part of the Tenth Election District of Baltimore County. That district is sparsely populated and had an estimated population of 8062 as of July 1, 1980. At the time of the subject alcoholic beverages license application, there were two existing liquor outlets in close proximity to the proposed new liquor license premises known as Carroll’s Market and The Starting Gate.

At the hearing before the Board, appellees presented the testimony of investors in Manor Center and the proposed liquor outlet. At the same hearing, six witnesses testified on behalf of the appellants as to the adequacy of the existing liquor establishments in the area. They stated their opinions that another license was not necessary to accommodate the public in the Tenth Election District. In addition, a proffer was made that eight additional protestants, if allowed to testify, would offer cumulative testimony as to the adequacy of existing facilities and the lack of need for another license. At the conclusion of the lengthy hearing, the Board issued its decision denying appellees’ application on the basis of the close proximity of the existing outlets and concluded that an additional license was not necessary to accommodate the public.

Appellees filed an order of appeal to the Circuit Court for Baltimore County and the appellants filed a motion to intervene which was granted. The Board transmitted the record to the Circuit Court on September 6, 1979. A hearing was held in the Circuit Court, and the matter was held sub curia by the trial judge. Subsequently, the judge entered an order dated October 8,1979 remanding the case to the Board with instructions that it take further testimony on the issue of the need for public accommodation. The Board and the appellants objected to the remand on the basis that the trial court did not have the authority under the provisions of Article 2B, Section 175 of the Annotated Code of Maryland (1976 Repl. Vol.) to issue such an order. In the interim, on October 22,1979, the trial judge entered an order extending the time for decision of the appeal before him for a period of ninety days from October 4,1979. The October 22 order was signed some six weeks after the expiration of the thirty day statutory period. On November 8, 1979, the court revised its order of remand and assigned the case for an evidentiary hearing in the circuit court. That hearing was held on December 17,1979, and the matter was again held sub curia. By order dated January 2,1980, the trial judge extended the court’s jurisdiction for an additional period of ten days. On January 11, 1980, the trial judge filed a memorandum opinion and order which reversed the Board’s decision and granted the appellees’ application for a liquor license. It is from that order that this appeal has been filed.

The appellant raises the following issues:

1. a. Whether the decision of the Board of Liquor License Commissioners was affirmed by operation of law because the circuit court failed to decide the appeal within the mandatory thirty day jurisdictional period required by Article 2B, Section 175 (e) (3)?

b. Whether the order issued by the trial judge remanding the proceedings to the Board for additional testimony and the subsequent order setting the case for further evidentiary hearing in the circuit court effectively extended the mandatory jurisdictional period?

2. Whether the trial judge erred in overruling the decision of the Board that the proposed license was not necessary for the accommodation of the public?

1. a. and b.

The statutes which govern the decision in this case are found, in pertinent part, in Article 2B, Section 60 a of the Annotated Code of Maryland (1957, 1976 Repl. Vol., 1980 Cum. Supp.), which provides:

(a.) General procedure. — If the board of license commissioners for the city or any county determines that the granting of the license is not necessary for the accommodation of the public ... then the application shall be disapproved and the license applied for shall be refused.

Section 175 of Article 2B, provides for an appeal from the decision of the Board, and the scope of that appeal is found in Subsection (e) of Section 175. It provides, in part:

(1) (i) Upon the hearing of such appeal, the action of the local board shall be presumed by the court to be proper and to best serve the public interest. The burden of proof shall be upon the petitioner to show that the decision complained of was against the public interest and that the local board’s discretion in rendering its decision was not honestly and fairly exercised, or that such decision was arbitrary, or procured by fraud, or unsupported by any substantial evidence, or was unreasonable, or that such decision was beyond the powers of the board, and was illegal. The case shall be heard by the court without the intervention of a jury. If in the opinion of the court it is impracticable to determine the question presented to the court, in the case on appeal, without the hearing of additional evidence, or if in the opinion of the court any qualified litigant has been deprived of the opportunity to offer evidence, or if the interests of justice otherwise require that further evidence should be taken, the court may hear such additional testimony to such extent and in such manner as may be necessary.
* * *
(3) The failure of the court to determine an appeal within a period of 30 days after the record has been filed in court by the local board as above provided, shall constitute an automatic affirmance of the local board’s decision, unless the time has been extended by the court for good cause shown.

Subsection (e) of Section 175 also includes the following:

(4) (ii) In addition to the other powers of the court provided in this article, the court may remand the proceedings to the local board in the following counties:

(A) Carroll County
(B) Charles County
(C) Howard County
(D) Prince George’s County

The appellees have filed a motion to dismiss the instant appeal based upon the provisions of Article 2B, Section 175 (f) which provide as follows:

Finality of appeal. — The decision of the court thus given shall be final and effective at once. No further appeal shall lie nor shall there be any other remedy by which the local board’s decision may be reviewed in court, either by way of mandamus, injunction, certiorari or otherwise. However, if any judge of the circuit court of any county, or the Baltimore City Court, shall in any case finally decide a point of law at variance with any decision previously rendered by any other judge of the State on the same question, an appeal may be taken from the decision rendered to the Court of Special Appeals. Any such appeal shall not stay the action of the lower court. The Court of Special Appeals shall only decide the question of law involved in such an appeal and shall not pass upon any question of fact.

Appellees urge that the trial judge’s decision in this case is not in conflict with or at variance with any decision previously rendered by any other judge of the State on the same question and that therefore the appellants’ appeal to this Court will not lie. We do not agree. In the cases of Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957) and Pearce v. Board, 228 Md. 515, 180 A.2d 651 (1962), the Court of Appeals held that the thirty day jurisdictional provision set forth in Article 2B, Section 675 (e) (3) is mandatory and not discretionary. Appellees contend that the order of remand for further testimony was an effective determination of the appeal in the thirty day period. This contention is made in the face of the question whether the trial judge had the authority to make such remand under Section 175 (e).

The subsequent attempt by the trial judge to extend the jurisdictional period by order on October 22, 1979 after the expiration of the mandatory thirty day period is at least facially in conflict with the holdings in Scherr and Pearce. Under these circumstances, the motion to dismiss is denied.

The leading case delineating the authority of the circuit courts to determine appeals from the various liquor boards of the State is Scherr v. Braun, supra. In that case, the trial court, in reversing a liquor board decision, failed to issue a decision within the thirty day jurisdictional period but granted an extension of time to decide the appeal after the expiration of the thirty days. Judge Hammond (later Chief Judge of the Court of Appeals) reviewed the history of Section 175 and similar statutes and concluded that the time limitation for deciding liquor appeals was mandatory and consistent with the Legislature’s intention to restrict the right of appeal at entry stage in these cases. Judge Hammond said:

We think the restriction on the court’s right to act after thirty days is not modal but is so interwoven with the special authority granted the court as to be a part of it, a limitation on its powers. We read the statute as if it said in terms to the Courts: "You have thirty days to decide the appeal — or as much longer as you have, within the thirty days, extended the time. If you fail to act within the stated time, ■the authority given in the first instance to decide or act in the case is automatically withdrawn and you have no further power whatever in the matter.” [Emphasis added.] [211 Md. at 566.]

In Jabine v. Priola, 45 Md. App. 218, 229, 412 A.2d 1277 (1980), this Court held: "It thus appears incumbent upon the parties appealing to the circuit court ... either to obtain, within thirty days, a decision on the merits or an order, premised upon good cause, extending the time for review.”

The appeal came on for hearing on October 4, 1979, and four days after the hearing the trial judge signed an order remanding the case to the Board "to afford appellant an opportunity to produce evidence of the need or necessity of the issuance of the license for the accommodation of the public.” The order of remand did not extend the time for deciding the case. On October 22, 1979, a new order was signed in which it was stated that the court orally extended the time to determine the appeal at the October 4 hearing because the court had only received the file from the clerk’s office ten minutes before court convened and the court had not had an opportunity to read the transcript of the proceedings. The oral extension of time is not included in the transcript of the October 4 hearing, and it is conceded no date of extension was set either orally or in writing. The October 22 order extended the time for the determination of the appeal nunc pro tunc for a period of ninety days from October 4, 1979.

The Board and the appellants filed an objection to the court’s order remanding the case to the Board for further hearing on the ground that there was no provision for remand to the Board available to the court under Article 2B, Section 175, Subsection 4 (ii), which restricted the power to remand only to the counties specifically mentioned in that Subsection (i.e., Carroll County, Charles County, Howard County, and Prince George’s County). The court apparently accepted the appellants’ contentions, and on November 8, 1979, rescinded the order remanding the case to the Board for further testimony and directed that the "matter be assigned a hearing before the circuit court to permit appellants to produce evidence of the need or necessity of the issuance of the license. . ..” That evidentiary hearing was held before the court on December 17,1979, and on January 2, 1980 the court ordered "that the time for making a determination of the appeal shall be extended for a period of ten days from this date because of the taking of additional testimony by the court.” The appeal was finally determined on January 11, 1980.

Accepting, as we do, that the trial judge did orally attempt to extend the time for determination of the appeal at the hearing before him on October 4, that action would not be sufficient to reserve jurisdiction in the circuit court. The question here to be decided is what action must be taken by the court in order to extend the time and to preserve its jurisdiction under Section 175 (e) (3). The statute is clear that the action of the liquor board is automatically affirmed after thirty days "unless the time has been extended for good cause shown.”

In Scherr v. Braun, supra, the Court of Appeals stated the procedural requirements to be adhered to with regard to the statute as follows:

For good cause shown, any judge of the court to which the appeal has been taken may extend the time for the determination of the case. In this way, the court has full control of the matter. It can meet any practicality that may arise. True, the obligation is cast upon the parties to make sure that the court in due time either decides the case or passes the proper order of extension. Such an order must be passed within a prescribed period or be ineffective. This is not an unusual requirement. [211 Md. at 564-65.]

It seems clear to us that an appropriate written order of extension must be sought and granted within the thirty day period from the date when the record is filed with the circuit court. As we held in Jabine v. Priola, supra, the time is not automatically extended by a court order permitting a party to intervene and participate in the proceedings. Likewise, the time is not automatically extended by remanding the case to the Board for further testimony nor by scheduling a hearing in the circuit court for the same purpose. We hold that the nunc pro tunc order of October 22 was entirely ineffective to resurrect the jurisdiction of the circuit court which had been lost by the expiration of the thirty day period without the issuance of an effective order.

Judge Hammond in Scherr stated the philosophy which is determinative of the strict construction required in appeals under Section 175. He said:

The action of the Legislature in requiring speedy decision in appeals from license boards and insuring affirmance of the board if its mandate was not heeded, is consistent with its very evident desire to limit and circumscribe the right of appeal. As is noted in Brashears v. Lindenbaum, 189 Md. 619, 626 [56 A.2d 844 (1948)], the statute gives very clear indication of the Legislature’s intention "to restrict the right of appeal at every stage.” The duty of deciding the propriety of granting or refusing a license and of passing on the facts is confided to the local board. On appeal to the trial court, the action of the local board is presumed to be proper and to best serve the public interests. The appellant bears the burden of proof of showing that the decision is against the public interests or that it was arbitrary or fraudulent, unsupported by any substantial evidence, or illegal. The decision must be made within thirty days or by virtue of the statute there is an automatic affirmance of the board’s action. It is then set forth in Code, 1951, Art. 2B, Sec. 166 (e) that: "The decision of the court thus given shall be final and effective at once * * * nor shall there be any other remedy by which the local board’s decision may be reviewed in court, either by way of mandamus, injunction, certiorari or otherwise.” It is apparent that in giving the right of appeal to courts, the Legislature conferred a special statutory jurisdiction on the courts and made the exercise of that jurisdiction the only right of the court to review the local board, to the exclusion of any common law remedy. No principle is better established than that in exercising a statutory power, a court is without jurisdiction unless it complies with the statute. r211 Md. at 562-63.]

We conclude that upon the expiration of the thirty day jurisdictional period without the entry of a written order extending the time for decision, the Board’s action was automatically affirmed and the circuit court had no further jurisdiction over the matter. It is therefore unnecessary for us to consider any of the remaining issues in the case.

Order óf Circuit Court reversed, order of Board of Liquor Licenses affirmed.

Costs to be paid by appellees.

      . See Prince George’s County v. Commonwealth Land Title Insurance Co., 47 Md. App. 380, 423 A.2d 270 (1980) for a discussion by Judge Weant as to the legal effect of nunc pro tunc orders.

        . Currently Article 2B, Section 175 (f).


author: MacDaniel, J.,

text:
    PHILIP MILLER et ux. v. UNITED STATES NAVAL INSTITUTE
    [No. 452,
    September Term, 1980.]

      Decided December 16, 1980.

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

      John R. Shematz, with whom was John G. Goettee on the brief, for appellants.

      S. Kennon Scott, with whom was William M. Simmons on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

This is an appeal from an Order of the Circuit Court for Anne Arundel County sustaining a demurrer. In September 1979, appellants Philip Miller and Rita Miller, his wife, filed a bill in equity for specific performance of a contract made by appellee, the United States Naval Institute, to purchase certain land. The precise issue of appellee’s breach, vel non, is not before us. Rather, the appellee demurred, and the demurrer was sustained, upon the ground that, even assuming appellee’s breach, specific performance was precluded since the contract contained a liquidated damages clause designed to constitute appellants’ sole remedy.

As related in their Bill of Complaint, appellants owned an improved parcel of land, 6.33 acres more or less, on Ritchie Highway in Arnold, Maryland. By contract of sale dated August 24, 1978, appellee agreed to purchase this property for $315,000. Appellee paid appellants a deposit of $10,000 against the purchase price, and Paragraph 14 of the contract of sale provided, in part, that:

"... the Sellers and Purchaser are required and agree to make full settlement in accordance with the terms hereof. If the Purchaser shall fail to do so, the deposit herein provided shall be forfeited and the Purchaser shall thereby be relieved from further liability hereunder.”

Appellants alleged that appellee failed to proceed to settlement in accordance with the terms of the contract, and so prayed for specific performance. Appellee asserted that, by the terms of their contract, the parties had specifically agreed that in the event of appellee’s breach appellants’ remedy would be limited to retention of the deposit as liquidated damages. Appellee suggested that "the law of this State holds that in light of the language of the contract specific performance is not available as a remedy to the [appellants] for three reasons: First, the parties have fixed a specific sum as liquidated damages; Second, the contract language clearly expresses the rights of the parties upon default; Third, the liquidated damage clause is self executing.”

The chancellor agreed with appellee. We quote from his Memorandum of Opinion and Order:

"In the present proceedings, the parties executed an agreement which not only provides for liquidated damages but states expressly that 'the Purchaser shall (by payment of the liquidated damages) be relieved from further liability hereunder’.
In ruling of [sic] any Demurrer, it is the duty of the Court to look only to the Bill of Complaint, to accept as true all well pleaded facts and to draw any reasonable inferences. Hooke v. Equitable Credit Corp., 42 Md. App. 610 (1979).
It is the holding of this Court that the Plaintiffs’ Bill of Complaint does not state a valid cause of action inasmuch as the contract clearly demonstrates that it was the intention of the parties to limit the available remedy on default by the purchaser to liquidated damages.”

On the other hand, appellants maintain that the contract demonstrates no such thing. Paragraph 14, they argue, does not grant appellee an alternative to performance, but rather grants appellants, alone, the option of accepting the penalty (thereby relieving appellee of further liability) or of rejecting it in order to pursue their equitable remedies. Thus, the issue for decision here is whether the inclusion of the liquidated damages clause, supra, in a contract of sale forecloses a real estate vendor’s right to seek specific performance in the event of the vendee’s default.

We begin by noting the following general propositions, found in 71 Am. Jur. 2d Specific Performance, §§ 57-59, at pp. 83-87:

"Parties to contracts frequently stipulate and agree in advance as to the amount to be paid by one party to the other in the event of the former’s breach of agreement;.... Questions frequently arise as to the effect of such provisions upon the right of the party in whose favor they run, to a decree of specific performance of the contract.... [T]he view taken by the great preponderance of authority among the cases is that the right to specific performance is not to be determined by the character of the provision as one for a penalty or for liquidated damages, but by whether the provision was intended merely as security for performance of the contract or as an alternative to the main obligation, giving the party against whom the relief is sought the option either to perform the main obligation or to pay or forfeit the penalty or liquidated sum. Whenever it appears that the intention of the parties was that the contract should be performed and that a stipulation for liquidated damages or a penalty was inserted merely as a security for such performance, then the contract will be specifically enforced notwithstanding the contract is alternative in form. Generally speaking, it is only where the contract stipulates for one of two things in the alternative the performance of certain acts or the payment of a certain amount of money in lieu thereof that equity will not decree a specifíc performance of the first alternative.
The basis of the general rule which allows specific performance of a contract containing a stipulation for a pecuniary forfeiture or penalty or for liquidated damages in the event of default if the obligation to pay such forfeiture or damages is not an alternative to the main obligation, but is security for the performance thereof, is the intention of the parties; this intention is to be derived from the instrument or contract according to the ordinary and usual rules of construction, taking into consideration the terms of the contract, the subject matter, and the surrounding circumstances. When it is the intention that a stipulation is to be regarded as security for the performance of a contract by the vendee, specific performance may be had, but when the stipulation is intended as a substitute for performance and the vendee may comply with the contract or pay liquidated damages in lieu thereof, specific performance is not available.. ..
The question ... must in the last analysis be determined from a consideration of the terms and language of the particular contract in question. . ..
The cases are almost unanimous in support of the rule that a mere provision in a land contract that in case of default the vendee shall forfeit, as liquidated damages, the deposit made on the contract, does not preclude the vendor from maintaining a suit for specific performance. And the vendor’s retention of an earnest-money payment, in accordance with the contract, is not an acceptance of liquidated damages under a provision therefor, and does not bar his right to specific performance; in such case the provision for liquidated damages is irrelevant, since the vendor is not seeking damages but rather the purchase price. In this respect, it has been said: 'It would be highly inconsistent to require the seller to yield up the earnest money which was intended as part payment and then sue at equity to get the same funds back also as part payment.’ ” (Emphasis added; citations omitted.)

The law in Maryland has been well settled, and in accord with these views, since the Court of Appeals’ decision in Rogers v. Dorrance, 140 Md. 419 (1922). In Rogers the vendor appealed a circuit court order sustaining a demurrer to his bill of complaint for the specific performance of a real estate contract of sale. The parties’ contract contained a "forfeiture clause” which provided that:

" 'If, for any reason, the vendee shall fail in any particular to perform the covenants, conditions and stipulations herein expressed, on his part to be performed, within the time specified, ... then all sums paid on account of the purchase money and all buildings erected on the above-described property and all crops planted thereon shall be forfeited and retained by the vendors as liquidated damages for the breach thereof, and this contract shall be void.’ ”

The vendee argued that this clause limited the vendor’s remedy to the retention of the amount fixed as liquidated damages, and that it precluded the vendor from resorting to a court of equity for specific performance; upon this ground the demurrer was sustained. The Court of Appeals reversed. We quote the Court’s opinion, at 140 Md. 424-25:

"Whatever may be the decisions elsewhere, the rule is well established in this country that a provision, in a contract for the sale of land, such as is contained in the contract in this case, and termed a forfeiture clause, is a provision for the exclusive benefit of the vendor, and the vendee cannot, by his own default, put an end to the contract.
In Stewart v. Griffith, 217 U.S. 323, the Supreme Court of the United States, under a somewhat similar state of facts, decreed a specific performance of the contract. MR. JUSTICE HOLMES, in delivering the opinion of the Court, held that the tenor of'the agreement’ throughout imports mutual undertakings. 'We are satisfied,’ he said, that the vendee 'bound himself to take the land.’ * * * The condition plainly is for the benefit of the vendor and hardly less plainly for his benefit alone, except so far as it may have fixed a time when the vendee might have called for performance if he had chosen to do so, which he did not. This being so, the word void means voidable at the vendor’s election and the condition may be insisted upon or waived at his choice.’
. In the more recent case of Western Union Telegraph Co. v. Brown, 253 U.S. 101, the Supreme Court re-affirmed and followed the rule laid down in Stewart v. Griffith, supra, and held, under similar stipulations, 'the word void means voidable at the vendor’s election and the condition may be insisted upon or waived at his choice.’ ...
Considering the stipulation, or the forfeiture clause, contained in the contract in this case, in the light of the facts and circumstances surrounding the parties at the time of the execution of the contract, as disclosed by the record, we find nothing that would take this case out of the well settled rule of law, established by the decisions we have cited, or could be construed to deny the plaintiffs the relief by way of specific performance.
In Popplein v. Foley, 61 Md. 381, it is said: 'While specific execution is a matter not of absolute right in the party, but of sound discretion in the court, yet if a contract respecting real property is in writing and is certain and fair in all its parts, for an adequate consideration and capable of being performed, it is as much a matter of course for a court of equity to decree specific performance of it as it is for a court of law to give damages for breach of it.’ Cochran v. Pascault, 54 Md. 1; Lucas v. Long, 125 Md. 427.”

The Court of Appeals affirmed this rule in Armstrong v. Stiffler, 189 Md. 630 (1948). The case was an appeal from a circuit court order overruling appellant’s demurrer to appellee’s bill for specific performance of a stock option. Appellant had agreed to sell and transfer all his stock on a certain date for $300 per share. The option agreement which appellant signed also provided: "In case of default I promise to pay $300 per share ... as liquidated damages.” Appellant contended that this provision barred specific performance. The Court of Appeals disagreed and affirmed the circuit court’s order. The Court based its holding upon its decision in Rogers, supra, stating at 189 Md. 635:

"The Rodgers [sic] case holds that provision, in a contract of sale of land, for forfeiture of part payments does not preclude the vendor from specific performance, following Stewart v. Griffith, 217 U.S. 323, 30 S.Ct. 528, 54 L. Ed. 782, 19 Ann. Cas. 639, and Western Union Tel. Co. v. Brown, 253 U.S. 101, 40 S.Ct. 460, 64 L.Ed. 803. It has generally been held that specific performance should be denied because of a liquidated damage clause only when the contract shows that the clause was intended to give an option to perform or pay damages. Brown v. Norcross, 59 N.J. Eq. 427, 430, 431, 45 A. 605; Rittenhouse v. Swiecicke, 94 N.J. Eq. 36, 38-40, 118 A. 261; Phoenix Ins. C. v. Continental Ins. Co., 87 N.Y. 400, 405, 406. Normally contracts are made to be performed, not to give an option to perform or pay damages. Linz v. Schuck, 106 Md. 220, 67 A. 286, 11 L.R.A., N.S., 789, 124 Am. St. Rep. 481. Forfeiture and damage clauses are means to insure performance, not optional alternatives for performance. See also Restatement, Contracts, sec. 378, comment a. There is nothing in these option agreements which indicates that the liquidated damage clause gives a license to break the contract and pay damages.”

Appellee maintains that the circuit court’s ruling was correct since it effectuated the intent of the parties (citing Kasten Construction Company, Inc. v. Rod Enterprises, 268 Md. 318 (1973), Schapiro v. Jefferson, 203 Md. 372 (1953)); furthermore, it insists the ruling was mandated by Hahn v. Concordia Society, 42 Md. 460 (1875). But Hahn is distinguishable, and is not controlling. Indeed, it was distinguished, in Rogers, supra, (following motion for reargument, 140 Md. at 427-28) and in Armstrong, supra, where the Court observed, at 634-35:

"[Hahn] was a suit for specific performance (by injunction) of a negative provision in a contract of employment of an actor, under the then comparatively recent doctrine of Lumley v. Wagner, 1 De G., M. & G. 604. The contract provided that if the actor should break his engagement after the contract was signed, .'he obligates himself to pay to the complainants a conventional fíne of $200, which sum is forfeited by any violation of the contract and requires no particular legal proceedings for its execution.’ (Italics in opinion.) 42 Md. at page 463. In the light of subsequent’ decisions it is clear that Hahn was not so exceptional a performer as the opera singers, baseball players and others to whom the doctrine of Lumley v. Wagner has been restricted. The court, however, did not decide this question but held that the liquidated damage clause covered any violation of the contract and the employers by their own contract thus indicated that they could seek redress only in a court of law and were precluded from resort to equity. The Hahn case has never been extended, but in Rogers v. Dorrance, 140 Md. 419, 427, 428, 117 A. 564, 32 A.L.R. 573, was distinguished by stressing the 'conventional fine’ and by stating the decision substantially as we have just stated it.” (Emphasis added.)

In this case, as in Rogers, the parties’ agreement does not clearly indicate that they relinquish their equitable remedies in the event of default. There is nothing in the language of their contract which expressly forecloses appellants’ right to seek specific performance following appellee’s breach. That being so, the forfeiture clause in question must be interpreted merely to grant security for appellee’s performance, and not to grant appellee an alternative to performance. This is especially so here, where the parties’ contract is for the sale of real property. The parties’ rights to specific performance ought not be foreclosed (thereby confining their remedies to those available at law) absent a clear expression of their intent to do so, since "... it is ... well settled in Courts of equity 'that in general the legal remedy of damages is inadequate in all agreements for the sale or letting of land, or of any estate therein;....’” Maryland Clay Co. v. Simpers, 96 Md. 1, 7 (1902). Accordingly, the circuit court’s decision to sustain appellee’s demurrer was erroneous and must be reversed.

Order reversed.

Case remanded for further proceedings consistent with the views stated in this opinion.

Appellee to pay the costs.

      . Compare Blood v. Gibbons, 288 Md. 268 (1980), wherein seller’s retention of deposit as liquidated damages precluded further action at law for damages under the contract. Seller held to have waived rights to further legal remedies following his election to declare forfeiture of deposit monies.

      . In Stewart v. Griffith, 217 U.S. 323, the contract provided that "In case the remainder of the ... purchase price be not paid ... then the said $500 so paid ... is to be forfeited and the contract of sale and conveyance to be null and void, and of no effect in law,....”; in Rogers, supra, the contract stated that, in the event of buyer’s breach, the purchase money, buildings and crops "shall be forfeited and retained by the vendors as liquidated damages ... and this contract shall be void”; and, as noted earlier, the contract sub judice provided that, upon breach by the vendee, "the deposit herein shall be forfeited and the Purchaser shall thereby be relieved from further liability hereunder.” In our view, each of these provisions expresses an identical intent; the differences among these provisions are superficial only, and do not affect our result in this case.

      . The appropriateness of the remedy of specific performance was not argued here so we did not address that point. But since this question may arise on remand we think it helpful to note that Judge Wilner’s opinion for this Court in Archway Motors v. Herman, 37 Md. App. 674 (1977), contains an excellent discussion on that topic.