text:
    LEON GREGORY JOHNSON v. STATE OF MARYLAND
    [No. 511,
    September Term, 1979.]

      Decided February 13, 1980.

      The cause was submitted on briefs to Morton, Thompson and Lowe, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Victoria A. Salner, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Valerie A. Leonhart, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Steven Scheinin, Assistant State’s Attorney for Baltimore County, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant, Leon Gregory Johnson, was convicted by a jury sitting in the Circuit Court for Baltimore County (Land, J., presiding) of armed robbery (art. 27, § 488) and the use of a handgun in a crime of violence (art. 27, § 36B (d)). He was sentenced to ten years for the armed robbery and five years for the handgun violation, the latter sentence to be served consecutively to the first. On appeal he questions the sufficiency of the evidence for the handgun violation and the propriety of four decisions by the trial judge: his refusal to grant a change of venue, his refusal to strike a certain juror, his lack of a ruling on a motion to suppress and his refusal to allow appellant to discharge his court appointed counsel.

Sufficiency of the Evidence

The evidence consisted of testimony of two eyewitnesses. They were both employees of a Pantry Pride store and were in the office of that establishment on the day of the crime. One of them, Robin Litz, was working the check cashing window. She testified:

"I was standing at the check cashing window, and this gentleman came up and I asked if I could help him. He said give me your money, and I looked at him. I leaned over to look over the ledge to see if he had a check. That’s when he pulled the gun, and he asked me to give him his money and he gave me a blue duffle bag to put the money in.
Q. What was the color of the gun, do you know?
A. It was like a silver gray.
Q. And how much of the gun could you see?
A. Well, he pulled it out — and I don’t know if it was under the bag or his coat. I saw like where you put the bullets in, and then what you shoot out of.”

Ms. Litz identified the appellant in court as the robber.

The other eyewitness, George Krause, was not on duty but was standing next to Ms. Litz at the time of the crime. He testified:

"... I was in the office talking to Mr. Pogach, and approximately at that time a gentleman came up and pointed a gun at Robin and asked for all of the money.
Q. Okay. Now, how much of this could you see and hear from where you were standing?
A. Well, I was approximately three to four feet behind Robin, and Robin drew my attention. I don’t know how long the gentleman was there, but she drew my attention, and I saw pretty much. I saw Robin give him the money. I could not see — I could not see the gun, but I could see his face and approximately down to his chest, and I could see Robin fill the bag full.”

Mr. Krause also made an in court identification of appellant as the robber. The gun was not introduced into evidence.

Appellant contends that the testimony was insufficient to establish beyond a reasonable doubt that the gun was a "handgun” as that term is used in art. 27, § 36B (d). We disagree. Article 27, § 36F (a) defines a "handgun” as: "any pistol, revolver or other firearm capable of being concealed on the person ... .” In Howell v. State, 278 Md. 389, 396 (1976), the Court of Appeals concluded that:

"to be a firearm it must propel a missile by gunpowder or some such similar explosive ....”

Appellant relies on Tisdale v. State, 30 Md. App. 334 (1976) and Pharr v. State, 36 Md. App. 615 (1977), cert. denied, 281 Md. 742 (1979). In Tisdale we reversed a handgun conviction because the weapon there was described as a ".22 calibre gas pistol,” a "blank gun.” 30 Md. App. at 341. We held that this was insufficient evidence "as to the nature of the weapon.” 30 Md. App. at 345. In Pharr we reversed another handgun conviction because, although the victim had testified her assailant had used a "silver handgun,” the defendant had confessed to having (and, we infer, using) a "silver blank gun.” 36 Md. App. at 632.

In the instant case the uncontradicted testimony of Ms. Litz was that appellant pulled a gun from either his duffle bag or his coat; and that she knew it was a gun because she could see where "you put the bullets in” and "what you shoot out of.” Unlike the situation in Tisdale and Pharr, there is no testimony to indicate that the weapon here may have been a blank gun and not a "firearm,” outside the scope of § 36F, as defined by Howell.

Rather, the situation is more properly analogous to that in Couplin v. State, 37 Md. App. 567 (1977). There the victim gave an imprecise description of the weapon ("It had two barrels. It was a handgun and that’s about it.” 37 Md. App. at 576), which was not introduced into evidence. We said, in affirming the handgun conviction:

"In Todd [v. State, 28 Md. App. 127 (1975)], this Court stated at 28 Md. App. 132 that '[t]angible evidence in the form of the weapon used in an offense is not an essential to proof of the use of a weapon.’ A fortiori, such proof may rest upon extrinsic evidence as to the nature of the weapon.” 37 Md. App. at 578.

In this case the uncontradicted extrinsic evidence as to the nature of the weapon is that it was a firearm capable of being concealed in appellant’s coat or duffle bag. As such it was sufficient to convince the trier of fact beyond a reasonable doubt that it was a handgun within the scope of § 36B.

Venue

Prior to the trial appellant moved for a change of venue to Baltimore City because he believed that the ratio of black people to white people on the petit jury panels in Baltimore County was disproportionately small, a problem which he believed would be rectified in Baltimore City.

If this were all that appellant contended we would have no problem affirming the trial judge’s denial of his motion on the basis of Garland v. State, 34 Md. App. 258 (1976). In Garland we held that neither the defense nor the State may have a change of venue in order to be tried by a more desirable "peer group” that makes up the jury. 34 Md. App. at 266.

But this is not all that appellant contends. His motion for a change of venue was based upon an alleged constitutional defect in the petit jury. He relied on the testimony of Nelson Carlisle, Jury Commissioner for Baltimore County. Mr. Carlisle testified that accurate figures were not available, but that in his opinion about ten percent of the members of petit jury panels were black. Appellant contends that this shows an unconstitutional underrepresentation of blacks, proscribed by Castaneda v. Partida, 430 U.S. 482 (1977), and Peters v. Kiff, 407 U.S. 493 (1972).

The rule of Castaneda states:

"Thus, in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. This method of proof, sometimes called the 'rule of exclusion’ has been held to be available as a method of proving discrimination injury selection against a delineated class. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.” (Footnote and citations omitted.) 430 U.S. 482 at 494-95.

This rule was recently affirmed in Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 3005 (1979). In Rose the Supreme Court found that under the Castaneda criteria the respondents had failed to make out a prima facie case of discrimination against grand jury foremen in Tennessee. The evidence had consisted of the testimony of three foremen, none of whom could remember any other foremen who were black. This evidence was insufficient because it did not cover a significant period of time, was subjective and did not include the total number of foremen appointed in that county during the critical period of time. 99 S. Ct. at 3007-3008.

The evidence in the instant case consisted solely of the opinion of the jury commissioner as to the relative amount of blacks empanelled on petit juries over a three month period. Like the evidence in Rose, it is subjective (i.e., the impressions of one man). In fact, Mr. Carlisle testified that it was not possible to make an objective analysis because no statistics were kept. Furthermore, the evidence covers only a three month period, less than the time involved in Rose, which was held to be inadequate. And finally, there is no evidence at all as to what proportion of Baltimore County’s total population is made up of blacks. Thus, even if we assume the accuracy of Mr. Carlisle’s estimate that ten percent of the petit jurors were black, there is no way to ascertain whether that constitutes an underrepresentation. Thus, appellant has failed to make a prima facie case of substantial underrepresentation as required by Castaneda and Rose. In fact, appellant has failed to show any underrepresentation. The trial judge correctly denied the motion.

Failure to Strike Juror

Appellant contends that the trial court erred in failing to strike one of the jurors after she admitted she shopped in the store where the robbery occurred and that she recognized one of the witnesses. The juror also stated unequivocally that despite this association she would not have any difficulty rendering a fair and impartial verdict.

The rule is that a "relationship between a juror and a witness for one of the parties does not disqualify the juror in the absence of an affirmative showing of prejudice.” Slicer v. Griffith, 27 Md. App. 502, 513 (1975), cert. denied, 276 Md. 749 (1975). See Bristow v. State, 242 Md. 283, 285-86 (1965). In this case there was no showing of prejudice and the trial judge’s decision was proper.

Lack of Ruling on Motion to Suppress

At the close of the State’s evidence at the trial, appellant made the following statement on his own behalf:

"THE DEFENDANT: I would like to state at this time that it is certain information that’s concerning this case I have not even had access to the case too. I have written Mr. King [defendant’s counsel] several letters asking him for personal copies and other things regarding the case. I have never had this information. I have filed a Motion for Discovery for this information from the police report. I am speaking of the police report that I had no knowledge of until today, and only the little what Mr. King read to me personally. I had not read this paper. This is the thing about the Motion to Suppress the lineup as evidence. I was under the impression we were going to hear from that before the witnesses were even brought in.
Now, if we are trying it here, I want to hear the motion, but the Jury has already heard the motions.
MR. KING: Mr. Johnson would like to discharge me as his attorney at this time. That is the gist of it, is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Well, I will deny your motion, sir. You can’t do that in the middle of the trial.”

Appellant now claims that these incoherent remarks constituted both a motion to suppress the identification evidence and a motion to dispense with counsel and proceed pro se.

The purported motion to suppress the identification was based upon an allegedly tainted pretrial identification of appellant at a lineup. The trial judge did not rule on this motion and neither appellant nor his counsel ever brought the lack of ruling to the judge’s attention. Appellant contends that constituted error under Saunders v. State, 8 Md. App. 143 (1969), which held that a failure to rule on a pretrial motion is error.

In the instant case there was no pretrial motion to suppress identification evidence. Appellant’s pro se motion was the first time in the course of the trial that the subject arose. Maryland Rule 736 a 3 requires that a motion asserting an unlawful pretrial identification be raised within the time limits described by 736 b. Since appellant’s motion was raised at trial on March 19, 1979, more than thirty days after his appearance before the court pursuant to Rule 723, appellant’s motion was waived under Rule 736. Even without Rule 736 there would be no error here because neither appellant nor his counsel brought the lack of a ruling to the trial judge’s attention. See White v. State, 23 Md. App. 151, 156 (1974), cert. denied, 273 Md. 728 (1975), Alston v. State, 11 Md. App. 624, 629 (1971), cert. denied, 262 Md. 745 (1971).

Motion to Proceed Pro Se

Appellant also contends that under Faretta v. California, 422 U.S. 806 (1975), it was error for the trial judge not to allow him to represent himself, after he so requested in the previously quoted remarks.

We do not believe that appellant’s statement indicates a motion to proceed pro se. In fact, it does not even express a desire to discharge his counsel (that interpretation was supplied by appellant’s attorney, to which appellant agreed). The judge disallowed the motion and made the following comments:

"I think counsel has done his best. I am not just praising Mr. King, but he is an expert trial counsel. He asked the questions that he thought are proper at this point, and you can’t, or anyway I’m not going to let you. We can’t change that. You can’t in the middle of the trial change lawyers.
We are here to give you a fair trial. We try to do our best. We brought in some fifty people at the expense of the taxpayers and went through the voir dire questions, and went through the whole procedure, and the State has put on its case. Now, at the end of the case, you can’t say that you want to stop because you think things aren’t going the way you want them to.
I still don’t know what the verdict is going to be. Nobody has any idea or knows what the Jury will do. They may not be convinced beyond a reasonable doubt and may not believe it. They may not believe the two witnesses. That is the point. You have given me no reason why I should allow counsel to be dismissed in the case, so I would have to deny your motion.” (Emphasis added.)

Neither appellant nor his attorney said anything to correct the trial judge’s obvious and understandable impression that appellant wanted to change attorneys; he did not express a desire to proceed pro se.

Faretta v. California, supra, held that there is a constitutional right to self-representation. Snead v. State, 286 Md. 122 (1979), held that when a defendant expresses a desire to represent himself before the trial begins, the trial judge must conduct an inquiry to determine that (a) his request is made "clearly and unequivocally” and (b) he is "knowingly and intelligently” foregoing his right to counsel.

Faretta and Snead, therefore, do not affect the established rule that replacement of counsel during the course of a trial is a matter of discretion left to the trial court, United States v. DiTommaso, 405 F.2d 385, 393 (C.A. 4th Cir. 1968), cert. denied, 394 U.S. 934 (1969), and, absent a showing of cause, such a request is properly denied. State v. Renshaw, 276 Md. 259, 270 (1975); Wright v. State, 32 Md. App. 60, 62 (1976), cert. denied, 278 Md. 740 (1976).

In this case there was no showing of prejudice and the motion was properly denied.

Judgments afñrmed; costs to be paid by appellant.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    ROBERT H. CAMPBELL et ux. v. THE MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS
    [No. 474,
    September Term, 1979.]

      Decided January 10, 1980.

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

      Theodore G. Bloom, with whom were Goodman, Bloom & Cohen, P.A. on the brief, for appellants.

      Richard G. Anderson and Richard T. Wright, Assistant City Attorneys, with whom was Eugene M. Lerner, City Attorney, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

We have found that when individuals speak of principles they usually mean that they object to the application of rules connected with certain systems. The objections, though frequently involving matters of minimal financial importance, nevertheless require the expenditure of large sums of money and the investment of great amounts of time on the part of the litigants and the judicial system. Unfortunately, such actions accomplish very little other than the derived satisfaction of one's “standing up for a principle.”

In this case the appellee, Mayor and Aldermen of the City of Annapolis (hereinafter, the City) brought this action against the appellants, Robert H. Campbell and Annie Jane Campbell (hereinafter, the Campbells) for injunctive and other relief to enforce the provisions of Chapter 12 of the Annapolis City Code which required owners and operators of residential rental properties within the City to obtain and maintain operating licenses and to pay a prescribed fee for such licenses. The Campbells contended that the requirement for the payment of such licenses was unconstitutional and invalid. The case was submitted to the trial court on a set of stipulated facts agreed upon by the parties. The chancellor below held that the licensing provisions of the City Code were valid and signed a decree requiring the Campbells to apply for and obtain licenses for the rental units in Annapolis owned by them, and otherwise to comply with the provisions of Section 12-16 of the City Code. He further enjoined the Campbells to allow the City’s agents access to the rental properties for the purpose of inspecting them under Section 12-9 of the City Code. This appeal is from that decree.

The questions presented are stated as follows by the appellants:

1. Does Article XI-E, Section 5 of the Maryland Constitution prohibit the City of Annapolis from imposing, levying and collecting a license fee for the issuance of a required license to operate residential rental units, where the ordinance establishing such license requirements and the imposition of a license fee to obtain the same was enacted subsequent to January 1,1954, and the General Assembly has not expressly authorized municipalities to levy or impose such type of license fee?

2. Was it proper for the lower court to enjoin the appellants to comply with Section 12-9 of the Annapolis City Code when the validity of that section was not an issue before the lower court and the appellants had never refused to comply with that section?

The parties entered into a stipulation that there were no disputed issues of fact between them, and that the controversy was to be submitted to the chancellor upon a bill and answer together with the stipulation for determination as a matter of law as to the validity of Section 12-16 of the Code of the City of Annapolis.

The stipulated facts were as follows:

“The Plaintiff, The Mayor and Aldermen of The City of Annapolis, is a municipal corporation of the State of Maryland, and, as such, is governed by the provisions of Article XI-E of the Constitution of the State of Maryland, Article 23A of the Annotated Code of Maryland, and the Charter of The City of Annapolis.
Chapter 12 of the Code of The City of Annapolis, entitled ‘HOUSING AND PROPERTY MAINTENANCE STANDARDS’ a copy of which is attached hereto, and is made a part of this Stipulation, has been duly adopted and enacted by the Plaintiff.
Section 29 of the Charter of The City of Annapolis, a copy of which is attached hereto, and is made a part of this Stipulation, has been duly adopted and enacted by the Plaintiffs.
The Defendants, Robert H. Campbell and Annie Jane Campbell, are the owners and operators of residential rental dwelling units located at the premises known as 119 Prince George Street, 126 Prince George Street, and 25 East Street, all located within the City of Annapolis.
Despite notice from authorized representatives of the City to do so, and despite the provisions of Section 12-16 of the Code of the City of Annapolis, as aforesaid, the Defendants have refused, and are continuing to refuse, to apply for and obtain a license to operate a residential rental dwelling unit or units at the properties known as 119 Prince George Street, 126 Prince George Street, and 25 East Street, in the City of Annapolis, respectively on the claimed ground that such a license entails payment of a license fee which is unconstitutional, unlawful and invalidly imposed.
Notices of non-compliance with the provisions of Section 12-16 of the Code of the City of Annapolis, as aforesaid, were received by the Defendant, Robert H. Campbell on or about March 19,1978 with respect to the property known as 25 East Street and on or about June 13, 1978 with respect to the property known as 119 Prince George Street.
The Defendants have not challenged and in these proceedings do not challenge the validity of any sections or provisions of Chapter 12, entitled ‘HOUSING AND PROPERTY MAINTENANCE STANDARDS’ of the Code of the City of Annapolis, or any rights of inspection under that Chapter of the City Code, except Section 12-16 thereof.”

The stipulation further recited:

“The Defendants have challenged and in these proceedings are challenging the validity of Section 12-16 of Chapter 12 of the Code of the City of Annapolis, pertaining to ‘Licensing of operation of certain dwellings and rooming houses.' The Defendants assert that said provisions are invalid on the following grounds:
A. Said provisions are contrary to the Fourteenth Amendment to the Constitution of the United States in that they constitute a denial of the equal protection of the law, since they apply only to certain types of habitation within the limits of the City of Annapolis and not equally to all types of habitation; and there is no reasonable basis for such discrimination between owners of one type of residential property and owners of other types of residential property.
B. Said provisions were enacted without any authority for the same in the Charter of the City of Annapolis.
C. Said provisions were enacted contrary to Article XI-E, Section 5 of the Constitution of the State of Maryland, in that said section requires owners of rental properties to apply for and obtain a license and to pay a license fee or tax, which provisions were not in effect on or prior to January 1, 1954.
The provisions of Section 12-16 of the Code of the City of Annapolis were enacted subsequent to January 1, 1954.
Section 29 of the Charter of the City of Annapolis was in effect prior to January 1,1954.” [End of stipulation.]

Article 23A, Section 2 of the Annotated Code of Maryland (1957, 1973 Repl. Yol.), provides in pertinent part that:

The legislative body of every incorporated municipality in this State, except Baltimore City,... shall have general power to pass such ordinances not contrary to the public general or public local laws and the Constitution of Maryland as they may deem necessary in order to assure the good government of the municipality, to protect and preserve the municipality’s rights, property, and privileges, to preserve peace and good order, to secure persons and property from danger and destruction, and to protect the health, comfort and convenience of the citizens of the municipality....

Article. 23B, Section 22(1) enumerates the powers of the council as follows:

General powers. — The council shall have the power to pass all such ordinances not contrary to the Constitution and laws of the State of Maryland or this charter as it may deem necessary for the good government of the town; for the protection and preservation of the town’s property, rights and privileges; for the preservation of peace and good order; for securing persons and property from violence, danger, or destruction; and for the protection and promotion of the health, safety, comfort, convenience, welfare, and happiness of the residents of and visitors in the town.

Pursuant to the exercise of the police power contained in the above sections, the Mayor and Aldermen of the City of Annapolis adopted Section 12-9 of the Code of the City of Annapolis. That section grants to the city engineer and city health officer the power to make inspections of dwellings and rooming units located in the city in order to determine whether the conditions of the units comply with the provisions of the building and health laws of the city. The owners of such units are required to grant to the city’s representatives free access to the premises at reasonable times for the purposes of inspection.

Section 12-16 (a) of the Code of the City of Annapolis provides, in pertinent part, that “[n]o person shall operate a single rental unit, multiple dwelling or rooming house unless he holds a current unrevoked operating license ... approved by the city engineer with the concurrence of health officer.” The city clerk is authorized to issue the original licenses and renewals thereof provided the units are found after inspection to meet the requirements of the City Code. We come now to the tremendous matter of principle which is the bone of contention in this case. Section 12-16 (f) provides that “[t]he operating license fee shall be ten dollars ($10.00) annually per dwelling unit which shall be payable in advance of the issuance of the license or renewal.”

As we understand appellants’ contentions in this case, they do not question that under Chapter 29 of the Charter of the City of Annapolis, the City is required to protect the health, safety and welfare of its citizens, nor do they have any quarrel with the City’s contention that under Article 23A of the Annotated Code of Maryland, the City is granted certain broad police powers to effectuate its obligation. What the appellants do place their reliance upon in this case is the language contained in Article XI-E, Section 5 of the Constitution of Maryland which the City acknowledges to be the governing law. That section provides, in pertinent part:

Notwithstanding any other provision in this Article, the General Assembly may enact, amend, or repeal local laws placing a maximum limit on the rate of which property taxes may be imposed by any such municipal corporation and regulating the maximum amount of debt which may be incurred by any municipal corporation. However, no such local law shall become effective in regard to a municipal corporation until and unless it shall have been approved at a regular or special municipal election by a majority of the voters of that municipal corporation voting on the question. No such municipal corporation shall levy any type of tax, license fee, franchise tax or fee which was not in effect in such municipal corporation on January 1, 1954, unless it shall receive the express authorization of the General Assembly for such purpose, by a general law which in its terms and its effect applies alike to all municipal corporations in one or more of the classes provided for in Section 2 of this article.

Appellants argue strenuously that Section 12-16 of the Code is unconstitutional because that section requires a license to operate residential rental units and provides for the exacting of a fee for the issuance of that license despite the fact that the license fee was not in effect on January 1, 1954 in derogation of Article XI-E, Section 5 of the Constitution of Maryland. The appellants also contend that the fee is of the type which the General Assembly has never granted the express authority to the City to impose, exact or levy. Appellants read Section 5 of Article XI-E of the Constitution as precluding any Maryland municipal corporation from exacting any new license fee requirements subsequent to January 1, 1954 without the express authorization of the General Assembly regardless whether the license fees are enacted as regulatory measures or for revenue purposes. We reject this position as being inconsistent with the intent of Article XI-E.

It is axiomatic that in interpreting a constitutional provision, the section should be construed as a whole, and the intention of the constitutional section is to be gathered from the entire section rather than from any one sentence or part thereof. Moreover, where a general constitutional scheme is framed which embraces a number of constitutional sections, the various sections should be read to harmonize with each other so that each is given effect. See Woelfel v. Mayor and Aldermen of Annapolis, 209 Md. 314, 121 A.2d 235 (1956) (construing Section 5 of Article XI-E of the Maryland Constitution in light of Section 3 of that Article). Literalism and verbalism must yield to the overall intentions of the framers of the Constitution. County Commissioners for Montgomery County v. Supervisors of Elections, 192 Md. 196, 63 A.2d 735 (1949); Blondes v. State, 16 Md. App. 165, 294 A.2d 661 (1972).

The intent of Article XI-E was specifically to grant to Maryland municipalities the power to control their own local affairs, and was designed to permit local legislation to be enacted solely by those directly affected without interference by representatives from other sections of the State. See Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 252 A.2d 242 (1969) {countyhome rule powers under Article XI-A). One of the objectives of “home rule” was to assure Maryland municipalities the power of self government and freedom from interference by the legislature in the exercise of that power. See City of Baltimore v. Sitnick & Firey, 254 Md. 303, 255 A.2d 376 (1969).

Appellees contend that the Court of Appeals has long recognized the exercise of reasonable police power regulation of housing accommodations as a valid exercise of the powers granted to municipalities under Section 3 of Article XI-E. In McBriety v. City of Baltimore, 219 Md. 223, 232-33, 148 A.2d 408, 414 (1959), the Court of Appeals said in discussing a Baltimore City ordinance similar to the one here in question: “We think it is clear that the operation of the business of renting or leasing housing accommodations has a direct relationship to the public interests in the City of Baltimore and that the regulation thereof afforded by the ordinance is not only reasonable but is salutary.” Accord County Council of Montgomery County v. Investors Funding Corp., 270 Md. 403, 312 A.2d 225 (1973).

The Court of Appeals has also recognized the imposition of license fees as a valid regulatory measure enacted pursuant to municipal police powers. As it declared in Maryland Theatrical Corporation v. Brennan, 180 Md. 377, 24 A.2d 911 (1942):

There is no doubt that the Legislature, or a municipality duly authorized by the Legislature, may impose license taxes upon businesses, occupations or amusements, either for regulatory purposes, under the police power, or for revenue purposes, under the taxing power. [Citations omitted.]
The question whether a particular Act is primarily a revenue measure or a regulatory measure is important, because different rules of construction apply. A regulatory measure may produce revenue, but in such a case the amount must be reasonable and have some definite relation to the purpose of the Act. A revenue measure, on the other hand, may also provide for regulation, but if the raising of revenue is the primary purpose, the amount of the tax is not reviewable by the courts. There is no set rule by which it can be determined in which category a particular Act primarily belongs. In general, it may be said that when it appears from the Act itself that revenue is its main objective, and the amount of the. tax supports that theory, the enactment is a revenue measure. “In general, * * * where the fee is imposed for the purpose of regulation, and the statute requires compliance with certain conditions in addition to the payment of the prescribed sum, such sum is a license proper, imposed by virtue of the police power; but where it is exacted solely for revenue purposes and its payment give the right to carry on the business without any further conditions, it is a tax.” [Citation omitted.] [180 Md. at 380-82.]

In the light of the application and inspection requirements of City Code, Section 12-16, the license fee imposed by this ordinance was, we conclude, enacted for regulatory purposes pursuant to the City’s home rule powers under Article 23A of the Maryland Code and Article XI-E, Section 3 of the Maryland Constitution.

Appellants argue that the language of Section 5 of Article XI-E, which prohibits the adoption of new municipal license fees after January 1, 1954, applies whether the fees are enacted for regulatory or revenue purposes. We do not agree.

The Court of Appeals has had only one occasion to directly address the construction of Article XI-E, Section 5. In that case, Woelfel v. Mayor and Aldermen of Annapolis, supra, the construction of the specific sentence here under consideration was not at issue, but the Court of Appeals clearly indicated that in construing Section 5, it must be read in a manner as consistent as possible with the “home rule” powers granted in Article XI-E, Section 3. The Court made it clear that the purpose of Section 5 was to allow the state government to permissively maintain a presence in the revenue operations of its municipalities. At no point is there even a suggestion that the purpose of Section 5 involves the reservation by the state government of a right to maintain a presence in the local regulatory operations of its municipalities. See Sobeloff Commission On Administrative Organization Of The State, Second Report at 4 (June, 1952).

Although the third sentence of Section 5 of Article XI-E was not included in the text of the constitutional amendment initially recommended by the Sobeloff Commission, the additional language of this sentence added by the General Assembly before the submission of Article XI-E to the electorate was not inconsistent with the recommendations of the Sobeloff Commission. See Code (1957, 1973 Repl. Yol.) Art. 23B, Sec. 22 (33) (wherein the model municipal charter enacted by the General Assembly noted, as a guide to municipalities in the exercise of their rights under Section 3 of Article XI-E, that a municipality could “license and regulate any business [or] occupation,... [and] establish and collect fees and charges for all licenses and permits issued....”).

In Hitchins v. Mayor & City Council, 208 Md. 134, 140-41, 117 A.2d 854, 856 (1955), the Court of Appeals described Section 5 of Article XI-E as dealing only “with limitations upon rates of municipal taxation of property, upon sources of municipal taxation and upon the amount of municipal debt and reserves powers to the General Assembly with regard to such matters....” (Emphasis added.) This intention of the Legislature is further indicated by the title designating Section 5 as concerning “Taxation; debt limitations.”

The authority of the City of Annapolis to require licenses to be obtained where necessary for regulatory purposes in the interest of the public health, safety or morals is not seriously questioned by appellants. Nor is there any real dispute that the power to regulate carries with it the implied power to impose a charge to defray the costs of regulation. Rather, appellant asserts that after January 1, 1954, in the absence of express authorization by the General Assembly, the City of Annapolis had no power to impose those costs of regulation on landlords who are required to obtain a license and to pay a license fee by Section 12-16. We do not agree. We conclude that the City of Annapolis was expressly granted the power to license under its police powers and that that necessarily implied the power to impose a license fee or tax. 9 E. McQuillin, Municipal Corporations Section 26.28 n. 1 (3d ed. 1978).

We observe no constitutional impediment which would require the costs of regulation of this exercise of the police power of the City to be imposed on the general taxpayer. For the reasons we have indicated, we shall affirm the chancellor’s finding as to the right of the City of Annapolis to require appellants to secure the license required by Section 12-16 and to pay the fees there designated.

There remains one other issue to be determined in this appeal. The chancellor included in the decree signed by him language which “Ordered and Decreed that the said defendants (appellants) be and hereby are, enjoined to allow the City of Annapolis and its duly authorized agents and employees reasonable access to the said rental dwelling units for the purpose of performing the inspections required under the provisions of Section 12-9 of the Code of the City of Annapolis.” Appellants complain with justification, we believe, that this portion of the decree was not adequately warranted by the record in this case. There was nothing in either the pleadings or stipulations from which the chancellor could have concluded that there had been any request by the City for inspections under Section 12-9 or that the appellants had refused or would refuse such a request. The stipulations clearly stated that the only portion of the City’s Housing and Property Maintenance Code disputed by the appellants was the licensing provisions of Section 12-16, and the only issue raised for determination was the validity of that section.

We agree with appellants’ argument that injunction is an extraordinary remedy and should be granted only to prevent irreparable harm or the threat thereof. It should never be issued without cause nor should it be issued to enforce compliance with an ordinance where no refusal to comply has been made by the party enjoined. The Court of Appeals said in Whalen v. Dalashmutt, 59 Md. 250, 252 (1883):

[I]t is a well settled principle in the practice of injunction, that where a defendant asserts positively that it is not his intention to do a certain act, or to violate any particular right asserted by the plaintiff, and there be no evidence to show to the contrary, the Court will not interfere by injunction. It will neither grant nor continue an injunction in the face of such disclaimer.

See also Leatherbury v. Peters, 24 Md. App. 410, 332 A.2d 41, aff’d, 276 Md. 367, 347 A.2d 826 (1975).

Under the circumstances as evidenced by the record in this case, we conclude the chancellor was in error when he found that the appellants had refused to comply with Section 12-9 and enjoined them to do so. The portion of the decree which relates to that matter should be stricken from the decree.

Decree affirmed in part, reversed in part, remanded to trial court for entry of decree consistent with this opinion; costs to be divided.

      . While McBriety v. City of Baltimore, supra, and County Council of Montgomery County v. Investors Funding Corp., supra, relate to the “home rule” powers granted by Article XI-A, we think the principles there stated apply equally to Article XI-E, which is here involved!


author: Couch, J.,

text:
    MOHAMED ZAMALUDIN v. BIBI HALIMA ISHOOF
    [No. 500,
    September Term, 1979.]

      Decided January 11, 1980.

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

      James J. Cromwell and Jeffrey VanGrack, with whom were Spriggs, Cromwell, Myers, Nicholson & Spire, P.A. on the brief, for appellant.

      John B. Dunn, with whom were Schultz & Dunn, Chartered on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

The appellee, Bibi Halima Ishoof, filed a bill of complaint for custody and child support against her former husband, Mohamed Zamaludin, the appellant, in the Circuit Court for Montgomery County. Appellant initially filed a motion to dismiss on the ground that the court did not have jurisdiction because of a previous divorce proceeding in the District of Columbia between the parties. The court subsequently granted this motion to the extent that the custody prayer was dismissed as the court concluded it lacked jurisdiction pursuant to the “Uniform Child Custody Jurisdiction Act” ; the court concluded, however, that it had jurisdiction over the issue of child support and therefore denied the motion as to that issue. The matter was thereafter heard fully as to the issues of support and attorney fees, resulting in a ruling by the chancellor in favor of appellee on both issues. In this appeal appellant presents the following questions for our consideration:

“1. Did the Chancellor err in failing to dismiss the Bill of Complaint for lack of jurisdiction in light of the previous adjudication in the District of Columbia between the parties?
2. Did the Chancellor err in finding that the Appellant had not rebutted the presumption that the child was presumed to be the legitimate child of both parents pursuant to Section 1-206 of the Estates & Trusts Article of the Maryland Annotated Cod,e?
3. Did the Chancellor err in failing to apply the judicially noticed normal period of human gestation of Two Hundred and Eighty (280) days in light of no medical testimony to the contrary?
4. Did the Chancellor err in awarding support in excess of Ten Thousand Dollars ($10,000.00) per annum, basing that upon a finding that the Appellant was responsible for supporting the child so that she can live and attend private school in the United States?
5. Did the Chancellor err in awarding excessive attorney fees and costs of Five Thousand Seven Hundred and Fifty Dollars ($5,750.00)? ”

(1)

Appellant’s first contention, and actually a threshold question, is that the chancellor erred in not granting his motion to dismiss based on lack of jurisdiction. The substance of appellant’s argument is that the District of Columbia court, having acquired jurisdiction over the parties in the prior divorce action, retained that jurisdiction not only on issues relating to the divorce but also as to issues relating to custody, care and maintenance. It is further argued that Maryland follows the “continuing jurisdiction rule”. See Berlin v. Berlin, 239 Md. 52, 210 A.2d 380 (1960). We have no quarrel with this general statement but, in our view, this is not dispositive of the question presented here. The real question is whether there may be concurrent jurisdiction in the District, of Columbia court and the Maryland court; we think there can be. There can be no argument but that personal jurisdiction over appellant exists; he lives in Montgomery County and was properly served. Appellant concedes this but argues the court lacked subject matter jurisdiction, apparently based on the fact that the child in question was not residing or domiciled in Maryland.

Appellee argues that the trial court had not only personal jurisdiction over appellant, but also subject matter jurisdiction pursuant to Sec. 3-602, Cts. & Judicial Proc. Art., Annotated Code of Maryland (1974), which provides:

“A court of equity has jurisdiction over the custody, guardianship, maintenance, and support of a child....”.

The precise question presented here, i.e., does the court have to have jurisdiction originally over the child before it may pass an order for its support, has not been answered in Maryland, so we have been advised by counsel and our own research does not disclose otherwise.

We have had occasion in the past to deal with related but not similar cases. In Seidlitz v. Seidlitz, 23 Md. App. 327, 327 A.2d 779 (1974), we were confronted with an appeal from an order dismissing a petition in part for modification of a District of Columbia divorce decree as to alimony, child support and visitation rights. In affirming the action of the chancellor, we said:

“The equity courts of Maryland have jurisdiction over the custody, guardianship, maintenance, and support of children, and a court may from time to time modify its decree or order concerning a child.
Before it may exercise this authority, however, the Maryland court must have jurisdiction over the children.”

Id. at 335. We also held in that case that the “continuing jurisdiction which a Maryland court has over matters relating to children must stem from an earlier proceeding in which the Maryland court had and exercised that jurisdiction. It is, in other words, the power which a Maryland court has to modify its decree or order. On the other hand, a later acquired power in a Maryland court to modify a decree or order of another state relating to children exists only when the Maryland court has jurisdiction over the children because they are presently domiciled here.” It is obvious this case is of little aid in deciding the present question because there was no custody or support issue decided by the District of Columbia order.

In Renwick v. Renwick, 24 Md. App. 277, 330 A.2d 488 (1974), again we dealt with a prior award of custody by a sister state and concluded the Maryland court had no jurisdiction to modify that decree because the children were not subject to the court’s jurisdiction. In Furman v. Gladding, 36 Md. App. 574, 374 A.2d 414 (1977), we held that the parties (to a divorce case wherein custody of a child was awarded to the mother by a Maryland court), “once having been subject to the court’s jurisdiction for purposes of determining custody and child support ... remained subject to such jurisdiction for the purposes of modifying any decree or order which affected the child.” In two cases we have held that two or more states may have jurisdiction to grant, deny, or change custody of children, and jurisdiction of each state is not only determined by its own laws but subject to the Constitution and laws of the United States. See Sami v. Sami, 29 Md. App. 161, 347 A.2d 888 (1975) and Schwartz v. Schwartz, 26 Md. App. 427, 338 A.2d 386 (1975).

We do not believe the Uniform Child Custody Jurisdiction Act (Art. 16, Sec. 184 et seq., Annotated Code of Maryland) is applicable to this case because, by its definition, “decisions relating to child support or any other monetary obligation of any person” are excluded from custody determinations.

In our view, logic seems to dictate that those reasons for requiring the presence in the court’s jurisdiction of the child in custody matters do not exist in simple support cases where, obviously, the critical issues are not the same. The best interests of the child in support matters can easily be determined whether the child is within or without the court’s jurisdiction. Accordingly, we conclude that the Circuit Court for Montgomery County had jurisdiction, not only over appellant but over the subject matter as well, and thus did not err in exercising it.

(2) and (3)

Appellant further contends the chancellor erred in concluding he had not rebutted the presumption of legitimacy as found in Sec. 1-206 of the Estates and Trusts Article of the Maryland Code and by failing to apply the judicially noticed normal period of human gestation of 280 days in light of no medical testimony to the contrary.

The chancellor, in his written memorandum and order, in pertinent part, stated:

“The question of legitimacy must be determined under the provisions of Title 1 of the Estates and Trusts Article. Id. The parties were married on March 26, 1963; Malika was born on September 28, 1963; and the parties were divorced on August 25, 1966. The child, thus, was born during the marriage. Under § 1-206, Estates and Trusts Article, Annotated Code of Maryland (1974), she is presumed to be the legitimate child of both the Plaintiff and the Defendant.
The presumption that Malika is the legitimate child of Dr. Zamaludin is rebuttable, § 1-105 (b), Estates and Trust Art., Annotated Code of Maryland (1974). Evidence contrary to such a presumption raises a question of fact for the trier to decide. The presumption is rebutted, however, only if the contrary evidence is of greater persuasion than that having given rise to the presumption and that presented in the case in support of the presumption. Border v. Grooms, 267 Md. 100 (1972); Rose and Crown, Ltd. v. Shaw Enterprises, Inc., 28 Md. App. 548 (1975).
The Defendant’s evidence was sufficient to raise a question of fact in the case at bar. Dr. Zamaludin testified that he did not have sexual intercourse with Mrs. Ishoof from November, 1962, until February 5, 1963 — the period of time during which Malika was probably conceived. Seibert v. State, 133 Md. 309 (1918). The doctor’s brother, Fazil Deen, testified that he had seen the Plaintiff engaged in social activities with another man about Christmas time, 1962. Finally, Anita Wierdu testified that Mrs. Ishoof admitted at a party in 1970 that Dr. Zamaludin was not the child’s father.
The Plaintiff, however, in her case in chief and in cross-examination of the Defendant’s witnesses presented sufficient evidence for this Court to conclude that the presumption was not rebutted. Mrs. Ishoof testified that she had never had sexual intercourse with anyone but the Defendant before the birth of Malika. She testified that she had had intercourse with Dr. Zamaludin on almost every weekend during the fall of 1962 until December 14th. Both individuals were going to school in the United States at that time. Her relations with him resumed, she said, at the beginning of January, 1963, when she returned to the United States after spending Christmas vacation in Guyana. The sexual relations continued on almost every weekend through March, 1963. She also testified that the other man with whom she had been seen in Guyana during her Christmas vacation was simply a friend of the family.
In addition, there were in evidence documentary admissions by Dr. Zamaludin that Malika was his child. He asserted that fact in a verified pleading filed in the District of Columbia divorce proceeding between the parties. He also told the Plaintiff’s parents that the child was his in a letter to them dated March 16, 1964.
The Court has doubts as to the credibility of the defense witnesses, too. It seems unlikely that Mrs. Ishoof and Dr. Zamaludin had sexual intercourse regularly during the autumn of 1962 until Thanksgiving, abstained between then and February, 1963, and then resumed having relations. This version of what happened is particularly troublesome in light of Dr. Zamaludin’s admission that he visited the Plaintiff during the alleged period of abstention. As for Anita Wierdu’s testimony, it was difficult to believe, too. She admitted that she only knew Mrs. Ishoof from the party in 1970 and that she had not known Dr. Zamaludin at that time.
In fact, she testified that she did not meet him until some years after the party. Yet, she claimed to remember accurately her conversation of more than seven years ago that she had had with the Plaintiff about the Defendant.
In light of the evidence presented and the fact that Malika was born while the parties were married, the Court concludes that Malika Zamaludin is the legitimate child of the Defendant.”

We find no merit to appellant’s argument that the chancellor erred in failing to apply the judicially noticed period of gestation when there was no medical testimony. Whatever may be the rule elsewhere, we find no Maryland case supporting this argument. To the contrary, see Harward v. Harward, 173 Md. 339, 196 A. 318 (1938). Whether Harward is still viable today need not be reached here as we believe the chancellor, in any event, had to make a factual finding, which he proceeded to do. In our view the testimony of appellee, in addition to the documentary evidence containing admissions of paternity by appellant, if believed, was sufficient to warrant the chancellor in reaching the factual conclusion he did. We do not find the chancellor to have been clearly erroneous as required by Md. R. 1086.

(4)

Appellant’s penultimate argument concerns the amount of support awarded by the chancellor. The court concluded that appellant should pay for the child’s tuition at a private school in Florida and $750.00 per month support during the school term and $300.00 per month during the summer months when school was out. Appellant seems to argue that support monies should not be awarded in order to send a child to private school. We find no merit to this argument. Appellee, through her brief and at oral argument, has advised this Court that this question is moot since the child is enrolled in a Florida public school and expects to graduate in May, 1980; it would appear there is no intention to enroll the child in a private school and thus that portion of the chancellor’s order regarding child support that is in contest is not given life. In any event, we have reviewed the record and do not find the chancellor to have been clearly erroneous in the award he made, keeping in mind the financial status of the parties and their station in life.

(5)

Appellant’s final argument concerns the amount of attorney’s fee allowed by the chancellor; it is contended that the chancellor abused his discretion by allowing a fee of $5,750.00. We see no merit to this contention. The record demonstrates that although a schedule of services totaling $8,631.91 was submitted to the court after the trial was completed, appellant made no objection either to this procedure or to the bill itself during the nearly two months thereafter before the chancellor rendered his Memorandum and Order. We also note the chancellor did not allow the full amount of the bill but made a substantial reduction to $5,750.00. We see no abuse of discretion. See Deckman v. Deckman, 15 Md. App. 553, 292 A.2d 112 (1972).

Finally, appellee has submitted to us a motion for allowance of appellate counsel fees in the amount of $9,163.00. We grant the motion so far as allowing a fee for the preparation and presentation of this matter on appeal but only in the amount of $2,500.00.

Order affirmed.

Costs to be paid by appellant.

Appellant to pay $2,500.00 as contribution toward appellee's counsel fee.

      . Art. 16, Sec. 184 et seq., Annotated Code of Maryland.


author: Lowe, J.,

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY v. WILLIAM JACKSON WEBB MARYLAND AUTOMOBILE INSURANCE FUND v. ANTHONY J. FRANZ, Ind. and t/a Diamond Cab
    [No. 513,
    [No. 545,
    September Term, 1979.]
    September Term, 1979.]

      Decided January 11, 1980.

      The causes were argued before Morton, Thompson and Lowe, JJ., in No. 513 and Lowe, Mason and Liss, JJ., in No. 545.
    In No. 513, John W T. Webb, with whom were Ernest I. Cornbrooks, ///and Webb, Burnett & Duvall on the brief, for appellant.
    In No. 513, Thomas S. Simpkins for appellee.
    In No. 545, Sidney G. Leech, with whom were Semmes, Bowen & Semmes on the brief, for appellant.
    In No. 545, Douglas W Knight, with whom were Leonard, Phillips & Knight on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

We are reporting two cases in this opinion because of a common question of law decided diametrically at the trial level in different circuits. In each instance, however, an insurer is the appellant and the appellees are individuals who have recovered from their insurers under policies containing an uninsured motorist provision as required by Md. Code, Art. 48A, § 541 (c), which provides that

“... every policy of motor vehicle liability insurance issued ... shall contain coverage ... for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle.” (Emphasis added).

At the root of both appeals is how the insured’s entitlement to recover such damages from the uninsured motorist can be established sufficiently to compel contractual compliance by the insurer under its mandated endorsement. Until July 24, 1979, it had not been established whether an insured could sue his insurer directly under the uninsured motorist provision, or whether he must sue the tortfeasor directly, thus permitting the company to oppose contractual entitlement under the uninsured motorist provision by defending the liability of the tortfeasor. In Reese v. State Farm Mut. Auto. Ins., 285 Md. 548 (1979), however, the Court of Appeals laid to rest that concern, pointing out that the former prohibitions against suing or impleading a tortfeasor’s liability insurance carrier was predicated upon the absence of a direct contractual obligation. But that impediment does not preclude suit directly against an insured’s own carrier under an uninsured motorist’s provision. The Court of Appeals, following the majority view, held that:

“He [the insured] has the option of bringing a contract action against his insurer or a tort action against the uninsured motorist.” Id. at 554.

In each of the cases with which we deal here, the insured opted to bring a tort action against the uninsured motorist, and in each case obtained a judgment. In case No. 513, the trial judge, in the Circuit Court for Wicomico County, relied upon a judgment on the merits to enter a summary judgment on behalf of the insured. In case No. 545, the Superior Court of Baltimore City declined to enter summary judgment on the question of liability despite a default judgment against the uninsured, but decided the case in favor of the insured after hearing the facts. Before discussing the common question relating to the summary judgment motions, perhaps more detail would be helpful in each case.

In appeal No. 513, Nationwide Mutual Insurance Company (Nationwide) complains that the Circuit Court for Wicomico County granted appellee William Jackson Webb’s Motion for Summary Judgment for $16,591.77 against it, predicated upon a judgment entered against an uninsured motorist by whom Webb had been injured as the result of an accident. Nationwide, with notice of the prior action, did not intervene as permitted of right by Md. Rule 208 a, which reads:

“Upon timely application a person shall be permitted to intervene in an action: (a) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (b) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.”

Instead, Nationwide elected to rely upon two provisions of its policy which it contends permits it to readjudicate the underlying question of entitlement, i.e., the uninsured’s liability. The primary provision states that:

“No judgment against any person ... shall be conclusive, as between the Insured [Webb] and the Company, of the issues of liability ... unless such judgment is entered pursuant to an action prosecuted by the Insured with the written consent of the Company.”

Obviously, the insured had not obtained written consent of the Company to prosecute the suit against the uninsured tortfeasor. In fact, four days after that suit was entered, the Company declined liability.

The second provision that Nationwide relies upon as a condition precedent with which Webb has failed to comply is the specific type of notice that the Company requires when suit is instituted against an uninsured tortfeasor. The policy states:

“If... the Insured... shall institute any legal action for bodily injury against any person... a copy of the summons and complaint or other process ... shall be forwarded immediately to the Company....”

Again the insured did not comply. Rather a letter containing notification of the pending suit including docket entries; etc., was sent four and one-half months after suit was instituted; however, no “summons and complaint or other process” was ever served upon or mailed to Nationwide. To underscore or emphasize these provisions the contract sets forth that:

“No action shall lie against the Company unless, as a condition precedent thereto, the Insured or his legal representative has fully complied with all the terms of this endorsement.”

In case No. 545, the Superior Court of Baltimore City denied a summary judgment motion predicated upon the prior default judgment entered against the tortfeasor. However, it ruled in the insured’s favor after hearing the facts. The insurer, Maryland Automobile Insurance Fund (MAIF), has appealed complaining that under the trial judge’s findings of fact he was compelled by law to find that appellee Anthony J. Franz (Franz), was contributorily negligent in the accident with the uninsured motorist. The common question in the two cases before us, however, is raised by cross-appeal in which Franz contends that the Superior Court erred in denying him summary judgment on the liability issue. That denial was predicated upon a policy provision similar to the one in case No. 513 which required written consent by the insurer to prosecute a suit against an uninsured motorist before a default judgment in such case would bind the company.

“No default judgment against any known person or organization alleged to be legally responsible for the bodily injury or property damage shall be conclusive, as between the insured and the company, as to the establishment of legal liability or of the amount of damages to which the insured is legally entitled, unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the Company.”

In this case, however, there is no notice question, as there is in 513, since MAIF conceded in its answer to motion for summary judgment that it

“had notice of the suit instituted against the uninsured motorist----”,

and relied entirely on its having never given written consent to prosecute that suit.

—res judicata—

As is apparent from the elliptical quote in § 541 (c) above, the language establishing the “critical coverage” to be in each policy issued in Maryland, guarantees payment 1) “for damages” which the insured is 2) “entitled to recover” from an uninsured motorist. Reese, supra at 555. That which constitutes entitlement is a question of fact dependent upon the liability of an uninsured motorist to the insured. Obviously if an uninsured motorist is not liable for an insured’s damages, the insured would not be “entitled to recover” against him and, therefore, is not covered by the provision as against his insurer. This provides the insurer a coverage defense against its insured based on lack of entitlement; but to avail itself of that defense it must assume the role of the uninsured motorist. Any coverage defense based upon a liability determination is necessarily a derivative one. To the extent of that defense, the insurer has an interest mutual with that of the uninsured motorist and becomes therefore a “privy” of the uninsured. From this it follows that if the issue of liability is determined as between the uninsured motorist and the insured, that determination is res judicata not only as to the uninsured motorist but, assuming notice of the action, also as to the insurer whose rights are derived through the insured.

“The basic rule of res judicata is that facts or questions which were in issue in a previous action and were therein determined by a court which had jurisdiction of the parties and the subject matter are conclusively settled by a final judgment in the first case and may not again be litigated in a subsequent action between the same parties or their privies even though the subsequent suit takes a different form or is based on a different cause of action. Sterling v. Local 438, etc., 207 Md. 132; Snodgrass v. Stubbs, 192 Md. 287; De Maio v. Lumbermens Mutual, 247 Md. 30.” Pat Perusse Realty v. Lingo, 249 Md. 33, 35 (1968) (emphasis added).

This bar to relitigating the same issues was predicated upon a “[p]ublic policy against repetitive identical litigation”, id. at 45, and has been reemphasized in MPC, Inc. v. Kenny, 279 Md. 29, 35 (1977), in a collateral estoppel sense.

“The public policy against interminable litigation, of which we spoke in Pat Perusse, applies with equal vigor in cases of collateral estoppel.”

The “public policy” bar even extends to cases concluded by default judgments wherein the issue could have been litigated. Although obviously not “litigated”, issues determined by default judgment are nonetheless conclusive. See Glens Falls Ins. v. Amer. Oil Co., 254 Md. 120 (1969).

In Glens Falls, American Oil obtained a default judgment in the Peoples Court against the Estate of Leonard J. Jordan. The declaration stated a claim sounding in negligence. When the Estate did not pay the judgment, American made demand on Glens Falls, Jordan’s insurer. When Glens Falls refused to pay, or defend the Estate and disclaimed liability, American brought an action against it. Significantly, Glens Falls defended on the grounds that the policy in question did not cover the alleged insured. It asserted a policy defense, as opposed to a personal defense, against him. Although the Court held that Glens Falls was not “estopped by the People’s Court judgment to raise its defense of non-coverage by reason of an intentional, non-accidental act by the insured,” id at 136 (emphasis supplied), it concluded with this caveat:

“However, by following this course of conduct,... Glens Falls acts at its peril and if such [coverage] defense is found to be lacking, then for purposes of liability, it is bound by the judgment of the People’s Court against its insured.” Id. at 137.

That statement is consistent with a substantial line of cases in which the Court of Appeals has held that a default judgment is a final determination of the question of liability:

“A reading of both Berwyn Fuel Co. [Berwyn Fuel & Feed Co. v. Kolb, 249 Md. 475 (1968)] supra, and Tasea Investment Corp. [v. Dale, 222 Md. 474 (1960)], supra, leaves no doubt in the Court’s mind but that a judgment by default is a final determination as to liability. See also Abrams v. Gay Investment Co., 253 Md. 121, 251 A.2d 876, Sheehi v. Saia, 250 Md. 198, 242 A.2d 174 (1968).” Himes v. Day, 254 Md. 197, 206 (1969).

In Millison v. Ades of Lexington, 262 Md. 319 (1971), decided two years after Himes, the Court of Appeals reenforced its holding, stating that:

“A judgment by default, while it may require extension by way of proof of damages, Rule 648, is still final in respect of the question of the liability of the party against whom it is obtained. Himes v. Day, 254 Md. 197, 206, 254 A.2d 181 (1969); Smith v. Dolan, 170 Md. 654, 657, 185 A. 453 (1936); Loney v. Bailey; 43 Md. 10, 15 (1875); Green v. Hamilton, 16 Md. 317, 329 (1860); and 2 Poe, Pleading and Practice § 372 (5th ed. Tiffany 1925). 'Like every other judgment, it is conclusive of every fact necessary to uphold it. Freeman on Judgments, sec. 330 * * *.’ Heyward v. Sanner, 86 Md. 19, 21, 37 A. 798 (1897). This Court cannot go behind the judgment by default to examine into and determine upon the validity of the cause of action upon which suit is instituted, Stansbury v. Ready, 29 Md. 361, 368 (1868), and any testimony offered to contradict liability is inadmissible, Betz v. Welty, 116 Md. 190, 195, 81 A. 382 (1911).” Id at 328.

Assuming proper notice of the suits against the uninsured motorists to the insurers, it seems quite clear that — but for the written-eonsent-to-prosecute provisions of the policies — the questions of entitlement were concluded by the judgments. The insurance carriers could no longer raise any defenses that were available to the uninsured motorists, although the insurers were not precluded from raising defenses based upon their policies. See Brohawn v. Transamerica Ins. Co., 276 Md. 396 (1975); Glens Falls Ins. v. Amer. Oil Co., supra.

—the coverage mandated—

But the insurers contend that they are not liable under their policies. They argue that because the insureds prosecuted these cases against the tortfeasors without getting written consent from the insurers, they failed to comply with a condition precedent.

However, § 541 (c) not only mandates the uninsured motorist coverage, it also places a minimum standard on the amount of that coverage.

“In no case shall the uninsured motorist coverage be less than the coverage afforded a qualified person under Article 48A §§ 243H and 243-1.”

The Court of Appeals, in State Farm v. Md. Auto. Ins. Fund, 277 Md. 602, 605 (1976), made it clear that any provision limiting the coverage to less than that legislatively mandated is void. The coverage afforded the insured — indeed “[t]he critical coverage language” (Reese, supra) is “for damages which the insured is entitled to recover...” from an uninsured motorist. The statute does not say “damages which the insured is entitled to recover if prosecution to recover is consented to by the insurer in writing.” That contractual restriction forecloses one of the options available to the insured under the statute as interpreted by the Court of Appeals in State Farm v. Md. Auto. Ins. Fund, i.e., to pursue the uninsured motorist directly establishing entitlement to recover against him. Since the coverage is only for that to which an insured is entitled against an uninsured motorist, to restrict a means of establishing entitlement, restricts the coverage itself thus clearly limiting the coverage which the Legislature insists that every Maryland insurer provide their insureds.

It is also well to note that there is neither statutory right nor requirement that the insurer defend the uninsured motorist, nor is such a defendant compelled to accept such a defender. The insurer’s “right” is interpreted through the rule (208) providing a “right” as an intervenor. That right, by virtue of its origin, is a procedural right not a substantive one and is separate from the coverage provisions. It does not affect the breadth or scope of coverage as a permissible limitation on the statutory entitlement language. Proper and timely notice to the insurance carrier to avoid prejudice of its rights is all that is necessary. Keel v. MFA Ins. Co., 553 P.2d 153, 157 (Okla. 1976). The insured’s right to recover from the company those damages to which he is entitled from another cannot be proscribed or limited by restricting his right to establish such entitlement by either of the options open to him. See Reese, supra.

—notice—

In case No. 545, MAIF has conceded timely notice; therefore, we hold that the written consent provision was not a bar to summary judgment on the entitlement question based upon the default judgment and should have been entered in the amount of the initial judgment, i.e., $3,182.84. Since the trial judge found in Franz’s favor and entered judgment in the amount of $3,000.00, the only harm done by the failure to enter summary judgment was in the amount of $182.84. We will, therefore, modify the judgment of the Superior Court of Baltimore City by adding thereto the sum of $182.84, making the amount of the judgment $3,182.84 and as modified, we will affirm.

In case No. 513, our holding dispenses with one argument of appellant, i.e., that Webb failed to comply with the condition precedent for coverage of obtaining written consent. To the extent that failure to comply with the provision that the insured must provide the insurer with “a copy of the summons and complaint or other process” is intended to bar recovery under the uninsured motorist endorsement, we also find that it improperly restricts the coverage required.

For insurance carriers generally, § 541 (c) establishes that the minimum standard of coverage is to be the same as established for the Maryland Automobile Insurance Fund in §§ 243H and 243-1. Section 243H (b) then provides that with respect to the courts the Court of Appeals shall set forth the procedural requirements,

“and as a condition precedent to any liability on the part of the Fund ... a claimant shall comply with all such rules____”

The Court of Appeals complied by enacting “Subtitle BW Maryland Automobile Insurance Fund” rules. In regard to service of process, it declared a procedure in RULE BW4 b (1) “COMMENCEMENT OF ACTION”, not unlike the Nationwide provision, that is:

“(1) In addition to serving process upon any uninsured motorist, a copy of the summons and declaration shall be mailed to the Executive Director or his designee within fifteen (15) days of the filing of the action.”

Since the “Executive Director or his designee” is identifiable as the insurer for our comparative purposes, it is fair to say that the procedural standard established by Nationwide, requiring copies of the summons and complaint or other process, does not exceed that which was contemplated by the statute through the Court of Appeals’ rule. However, the rule goes on to say that:

“(2) Notwithstanding the provisions of section b (1) of this Rule, failure to give notice of suit shall not defeat the claim against the Fund so long as the Fund has reasonable notice of the pendency of the action and a reasonable opportunity to defend.”

We, therefore, hold that the failure to comply with contractual procedural “conditions precedent” to coverage that the insured provide the summons and complaint or other process is not a bar to recovery of the damages to which the insured is entitled against the insured motorist; however, the insurer must have had reasonable notice of the pendency of the action against the uninsured motorist and a reasonable opportunity to protect its interest by intervention pursuant to Md. Rule 208.

Notice in case No. 513 was not provided the insurer until four and one-half months after suit had been instituted against the uninsured motorist, although that was still four months before judgment was entered. There has been no allegation by the insurer that noncompliance with the condition and the delayed notification prejudiced Nationwide from having a reasonable opportunity to protect its interest by intervention. Cf. Keel, supra. The company argued only that strict compliance was a condition precedent of the policy.

We will, however, remand case No. 513 pursuant to Md. Rule 1071 to provide the insurer an opportunity to move to set aside the summary judgment if it can by affidavit or evidence convince the court that a question of fact regarding such prejudice exists. If the court determines that the insurer has no defense predicated upon prejudice due to Webb’s belated notice, the summary judgment will stand. On the other hand, if the court finds evidence sufficient to constitute a disputed fact that the insurer could be factually determined to have been prejudicially deprived of an opportunity to defend the liability issue through intervention, the summary judgment shall be vacated and that issue will be among those presented to a factfinder in a trial on the merits. If, at such trial, the factfinder determines that the insurer was not prejudiced by the delayed notice, the prior judgment shall, by res judicata, be conclusive evidence of entitlement; however, if the insurer is found to be prejudiced by having had no opportunity to intervene in the case against the tortfeasor due to the belated notification of the suit, the res judicata bar will be no longer available against the carrier, and the judgment no longer conclusive evidence of entitlement. The insured must then again prove both damages and liability against which the insurer may interpose any defenses which are or were available to the uninsured motorist.

No. 545, judgment of the Superior Court of Baltimore City modified herein and as modified affirmed.

Costs to be paid by the appellant.

No. 513, judgment neither reversed nor affirmed; case remanded to the Circuit Court for Wicomico County, pursuant to Md. Rule 1071, for factual determination in accordance with this opinion.

Costs. of the appeal to abide the result.

      . To the extent that this procedural rule conflicts with the statutory definition of such rules as "condition precedent:’, the conflict must be resolved in favor of the rule by virtue of its subsequent superseding of the statute on a procedural issue. Md. Const. Art. 4 § 18; Meloy v. Squires, 42 Md. 378 (1875). And see Gabelein v. Plaenker, 36 Md. 61 (1872).


author: Gilbert, C. J.,

text:
    DONALD A. GRANT et al. v. ALLIED DEVELOPERS, INC. et al.
    [No. 514,
    September Term, 1979.]

      Decided January 11, 1980.

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

      RonaldS. Goldberg; with whom were Everngam, Goldstein, Blitz, Rosenberg & Shapiro, P.A. on the brief, for appellants.

      Donald Cefaratti, with whom were James Robert Miller and Miller, Miller & Steinberg on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

We are here presented with a question of the power of the equity court to appoint a receiver, upon the application of a dissident shareholder, for an ostensibly solvent corporation. Donald A. Grant, the appellant and a stockholder in Allied Developers, Inc. (Allied), is of the mind that Jesse Bloodsworth and Carl A. Phillipps, the appellees, along with Allied, have endeavored to defraud him. Grant sought relief in the Circuit Court for Montgomery County, sitting as a court of equity. He requested that a receiver be appointed for Allied and an accounting be undertaken. That tribunal treated a motion to dismiss, made by the appellees, as a motion for summary judgment. It denied Grant’s prayer that a receiver pendente lite be appointed, but, inasmuch as the appellees conceded that the accounting was appropriate, the chancellor ordered an auditor to review the corporate records.

Pursuant to Md. Rule 605 a the trial court determined that there was no just reason for delaying the entry of final judgment on his denial of the receivership. Judgment was entered, and the appellant noted this appeal.

Grant raises three questions for our consideration, scilicet

“I. Should the Circuit Court have granted defendants’ motion for Summary Judgment and denied appellant the appointment of a receiver, in light of circumstances indicating illegality, fraud, oppression, mismanagement, misapplication of assets, and the existence of a deadlock?
II. Does the Circuit Court have the jurisdiction and authority to appoint a receiver of a Maryland corporation owning real property in North Carolina?
III. Was the granting of a Summary Judgment in this case proper where genuine disputes about material facts existed and defendants were not entitled to judgment as a matter of law?”

The posture of the matter requires that we discuss only the second issue. Our recitation of the factual predicate will, thus, be limited.

— THE FACTS —

On November 18,1971, Grant, Bloodsworth, and Phillipps organized Allied for the purpose of dealing in real estate. At that time each individual contributed $500 in capital and received 500 shares of stock. Phillipps, who was to oversee the day-to-day operations of the venture, became the president, and Grant and Bloodsworth held the other corporate offices. Each stockholder sat as a director on a three-man board.

Allied almost immediately borrowed additional funds from Phillipps’ wife and from one Helen Brown, a client of Phillipps. Those funds, along with others, were used to purchase the assets of the corporation, which consist of two motels and two checking accounts, all located in the State of North Carolina.

Apparently disenchanted as the result of what he perceived to be a number of improprieties, Grant filed a bill of complaint against the appellees on August 15, 1978. The bill sought four specific and one general form of relief, namely: (1) an injunction to restrain the corporation from holding an annual meeting on August 17, 1978; (2) the appointment of the receiver; (3) an accounting; (4) costs and attorney’s fees; and (5) general relief. Five weeks later Grant filed an amended bill containing essentially the same allegations and requesting the identical relief. The appellees, on January 9, 1979, moved to dismiss the bill. As we have already stated, the circuit court treated the motion to dismiss as a motion for summary judgment. By order dated April 4,1979; the motion for summary judgment in favor of Allied was granted as to the appointment of a receiver.

— THE LAW —

We said, in Di Grazia v. County Executive, 43 Md. App. 580, 406 A.2d 660, 662-63 (1979), that:

“The standards for ruling upon a motion for summary judgment have been the subject of numerous opinions of both this Court and the Court of Appeals. Md. Rule 610 a 1 provides that a ‘party ... may at any time make a motion for summary judgment... on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law.’ The trial judge is to render judgment only if ‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Md. Rule 610 d 1.
Summary judgment is not a substitute for a trial but only a procedure to determine whether a trial is necessary. Kirsner v. Fleischman, 261 Md. 164, 169, 274 A.2d 339, 342 (1971); Mazur v. Scavone, 37 Md. App. 695, 698-99, 378 A.2d 1355, 1357 (1977). When ruling on such a motion, the trial judge does not decide disputed facts but, rather, decides whether any real dispute exists as to material facts. Washington Homes, Inc. v. Interstate Land Development Co., Inc., 281 Md. 712, 716, 382 A.2d 555, 557 (1978); Lipscomb v. Hess, 255 Md. 109, 118, 257 A.2d 178, 183 (1969); Vanhook v. Merchants Mutual Insurance Co., 22 Md. App. 22, 25, 321 A.2d 540, 542 (1974). All duly shown facts which would be admissible at trial, and all reasonable inferences deducible therefrom, must be considered in a light most favorable to the party opposing the motion and against the party making the motion. Washington Homes v. Interstate Land Development Co., Inc., 281 Md. at 718, 382 A.2d at 557-58; Rooney v. Statewide Plumbing, 265 Md. 559, 563-64, 290 A.2d 496, 499 (1972); Mazur v. Scavone, 37 Md. App. at 704, 378 A.2d at 1359. The function of the trial judge in deciding motions for summary judgment is much the same as that he performs at the close of all the evidence, in a jury trial when passing upon motions for directed verdict or requests for peremptory instructions. Porter v. General Boiler Casing Co., 284 Md. 402, 413, 396 A.2d 1090, 1096 (1979); Washington Homes v. Interstate Land Development Co., Inc., 281 Md. at 711, 382 A.2d at 557.”

It is elementary, under Di Grazia and the cases cited therein, that we may affirm the ruling of the circuit court only if the appointment of a receiver was precluded as a matter of law.

The circuit court concluded that the material facts of the alleged improprieties were in dispute, and that he “would not on that element conclude that a summary judgment should be granted----” The court opined:

“[T]he authority given to me with respect to the appointment of receivers and where the property is extraterritorial is equally persuasive that were I to find grounds for the appointment of a receiver in this case — there seems to be no dispute of the facts — that leaves the conclusion inescapable that the receiver would have no power to act, that the act of appointing a receiver for this corporation by this Court would be a nullity. There is nothing for him or her to administer and take control of, and it seems equally clear when I examine the authority — Holbrook v. Central Tractor and Equipment Company, 168 Md. at 468 — that the receiver appointed here would not have the privilege of suing in another jurisdiction and has to be administered not here. And the Court has no jurisdiction for that reason." (Emphasis supplied.)

We have a different view.

As early as Blondheim v. Moore, 11 Md. 365 (1857), it was recognized as a well-settled proposition in this State that a court of equity possesses the inherent power to appoint a receiver to take charge of and protect the property of a defendant pending an adjudication of the rights of the parties before the chancellor. See also, Brown v. Brown, 204 Md. 197, 211, 103 A.2d 856, 863 (1954); Williams v. Salisbury Ice Co., 176 Md. 13, 27, 3 A.2d 507, 514 (1939); Hagerstown Furniture Co. v. Baker, 155 Md. 549, 558, 142 A. 885, 889 (1928); Shannon v. Wright, 60 Md. 520, 523 (1883); Voshell v. Hynson, 26 Md. 83, 92-93 (1866). The appointment of a receiver is “to be exercised with great circumspection,” Blondheim v. Moore, supra, 11 Md. at 374, and unless the necessity for such an appointment “be of the most stringent character, the court will not appoint until the defendant is first heard in response” to the complaint. Id.

Upon proper application and proof, equity may exercise the appointment power so as to preserve the assets of a solvent corporation, where the actions of directors, officers, or other shareholders are ultra vires, fraudulent, or otherwise illegal. Williams v. Salisbury Ice Co., supra; Hagerstown Furniture Co. v. Baker, supra.

A chancery receiver “ 'has no extra territorial power of official action: none which the court appointing him can confer, with authority * * * to take possession of the debtor’s property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction.’ ” Holbrook v. Industrial Tractor and Equipment Co., 168 Md. 468, 471, 178 A. 236, 237 (1935), quoting Booth v. Clark, 58 U.S. (17 How.) 322, 338, 15 L.Ed. 164, 170-71 (1855). See also Day v. Postal Telegraph Co., 66 Md. 354, 360, 7 A. 608, 610 (1887); Lycoming Fire Insurance Co. v. Langley, 62 Md. 196, 202 (1884); High, A Treatise on the Law of Receivers, § 47 (4th ed. 1910).

Notwithstanding the lack of extra territorial power of the chancery receiver, “[i]t would seem to be unnecessary that the property constituting the subject-matter of litigation should be within the jurisdiction of the court, ... [if] the parties in interest are subject to its control____” Id. § 44.

Restatement (Second) of Conflicts of Laws § 367 (1971) is in accord:

“[A] principal receiver will customarily be appointed,
(a) in the case of an action instituted by a creditor or shareholder of a corporation, by a competent court of the state of incorporation____”

See also, Goodrich, Handbook of the Conflict of Laws § 202 (3rd ed. 1949).

In the instant case, Maryland is the State of incorporation and all the parties are subject to personal jurisdiction by the Maryland court. It is the physical assets of Allied that are dehors the territorial confines of Maryland. Consequently, the circuit court had jurisdiction to appoint a receiver. To conclude, as it did, as a matter of law, that it had no such jurisdiction constitutes reversible error.

The appellees’ motion to dismiss should not have been converted judicially into a motion for summary judgment. The motion to dismiss was the proper motion to file. Whether it is granted is another question. Such a motion is addressed to the sound discretion of the court.

Where the assets of the defendant corporation are located outside the boundaries of the domiciliary State, it may become necessary to have an ancillary receiver appointed by the courts of the foreign jurisdiction where the property is located, 1 Clark, supra, § 18, in which event, additional expense to the estate, or duplicitous efforts could result. Those possibilities, however, go merely to the advisability, and not the legality, of appointing a Maryland receiver. Because the circuit court was not precluded as a matter of law from appointing a receiver for Allied, we shall reverse and remand this case for further proceedings.

In so doing, we are not to be construed as having reached a decision on the merits of this case, nor are we to be interpreted to have said that the chancellor, in reaching his decision, is prohibited from considering the fact that the assets of the corporation are in North Carolina. On the other hand, we are not to be taken as meaning the chancellor may not appoint a receiver. Whether the circuit court ultimately appoints a Maryland receiver is for it to decide in the exercise of its sound discretion.

Judgment reversed and case remanded for further proceedings.

Costs to be paid by the appellees.

      . Grant asserts that he owns 50% of the voting stock of Allied. The appellees dispute that figure and claim that Grant owns only 33-1/3%.

      . The name “Phillipps’’ is spelled as “Phillips” in numerous pleadings, but the signature on the Articles of Incorporation of Allied Developers, Inc., indicates the spelling as “Phillipps.”

      . Grant alleged that Phillipps’ transgressions included personal use of corporate funds, improperly countersigning Grant’s name to corporate checks, failure to file various tax returns, and, we infer, a “squeeze play” so as to eliminate Grant totally from the corporation. Grant also averred that Bloodsworth abetted Phillipps’ attempt to eliminate him.

      . Patently, the issuance of an injunction on April 4, 1979, to prevent the August 17, 1978, meeting would have been absurd.

      . According to 3 Clark, A Treatise On The Law and Practice of Receivers § 700b (3rd ed. 1959), a number of decisions “flatly hold that a court of equity” does not have the “inherent authority to appoint a receiver of a corporation or the assets of a corporation.” See, e.g., Smith-Dimmick Lbr. Co. v. Teague, Barnett & Co., 119 Ala. 385, 24 So. 4 (1898); Scott v. Hollingsworth, 215 Cal. 314, 9 P.2d 836 (1932); Nelson v. Toluca State Bank, 334 Ill. 83, 165 N.E. 191 (1929); Vila v. Grand Island, etc. Co., 68 Neb. 222, 94 N.W. 136, 97 N.W. 613 (1903).

      . A receiver appointed by the court of equity in the exercise of its inherent power is called a “chancery receiver” to distinguish the position from a receivership authorized by statute. 1 Clark, supra, § 15.

      . The power to appoint a receiver for a corporation is “a discretionary power, ‘to be exercised with great circumspection, and only in cases where there is fraud or spoliation, or imminent danger of the loss of the property, if the immediate possession should not be taken by the court; and these facts must be clearly proved.’ ” Hagerstown Furniture Co. v. Baker, supra, 155 Md. at 558, 142 A. at 889.