author: Menchine, J.,

text:
    ARMCO STEEL CORPORATION v. HERBERT R. TRAFTON
    [No. 932,
    September Term, 1976.]

      Decided April 14, 1977.

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

      William R. Levasseur and Rignal W. Baldwin, Jr., with whom were Semmes, Bowen & Semmes on the brief, for appellant.

      R. Roger Drechsler, with whom was David Kimmelman on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Herbert R. Trafton (Claimant) filed a claim against Armco Steel Corporation (Armco or Employer and Self-Insurer) for workmen’s compensation benefits. The claim asserted entitlement to benefits for disability (hearing loss) caused by occupational disease arising out of and in the course of his employment.

The claim was referred to the Medical Board for Occupational Diseases (Medical Board), and a hearing was conducted by that body. After hearing, the Medical Board made the following decision:

“In view of the testimony and medical reports and the sound level survey and considering the length of time this employee was exposed to high noise levels in his employment with the Armco Steel Corporation, it is the opinion of the Medical Board that this claimant does, indeed, have an accoustic trauma as a result of his occupation with the Armco Steel Corp.

Based on the report of Dr. Gerlach, he is entitled to 45% binaural hearing loss.

ISSUES RAISED ARE AS FOLLOWS:

1. Did the employee sustain an accidental personal injury arising out of and in the course of employment.
2. Is the disability of the employee the result of an accidental personal injury arising out of and in the course of employment.
3. Should claim be determined by Medical Board.
4. Is the alleged occupational deafness a result of an accidental personal injury arising out of and in the course of employment.
5. Such other and further issues as may be raised at time of hearing.

MEDICAL BOARD DECISION:

1. He did not have an accidental injury but he did sustain an occupational disease.
2. See answer to issue #1.
3. Yes.
4. See answer to issue #1.
5. No other issues raised at the time of this hearing. However, the Medical Board raised the issues of nature and extent. Patient has a 45% binaural hearing loss as a result of an occupational disease in his employment with the Armco Steel Corporation.”

Pursuant to the provisions of Article 101, § 29, Employer and Self-Insurer filed a petition for review by the Workmen’s Compensation Commission (Commission) of the findings and report of the Medical Board.

After hearing and review the Commission passed an order reading, in pertinent part, as follows:

“... after due consideration, the Commission affirms the decision of the Medical Board and finds that the claimant did sustain an occupational disease arising out of and in the course of his employment on January 2, 1974 and as a result thereof, he sustained a permanent partial disability resulting in 45% binaural hearing loss... .”

On appeal to the Superior Court of Baltimore City by the Employer and Self-Insurer, the decision of the Commission was affirmed.

Employer and Self-Insurer now has appealed to this Court, contending:

1. That the finding of the Medical Board and its affirmance by the Commission is not supported by legally sufficient evidence.

2. That the disability rating of occupational deafness was not determined in accordance with law.

Sufficiency of Evidence

Unlike appeals from the Commission in cases of accidental injury, the Legislature has seen fit narrowly to circumscribe the power of the courts in appeals from the Commission respecting the grant or denial of benefits for occupational disease. Article 101, § 56 reads in pertinent part as follows:

“... in all appeals in which occupational diseases are involved, the findings of fact by the Commission shall be final and not subject to review or modification by the court or be submitted to a jury----”

Armco’s contention is grounded upon its assertion that there is no medical evidence directly connecting the hearing loss with the employment and no other evidence sufficient to establish the necessary causation.

The course to be followed by an appellate court in considering the legal sufficiency of the evidence in occupational disease cases was plainly outlined in Duncan v. McNitt Coal Co., 212 Md. 386, 129 A. 2d 523 (1957), in the following language:

“It is true, as the claimant urges, that members of administrative bodies may not rest their decisions on matters of private knowledge which are not in evidence. See, for example, Hedin v. Board of County Commrs., 209 Md. 224, 120 A. 2d 663. We think, however, that this does not preclude the members of the Medical Board from applying their expert knowledge to the medical evidence before them. Big Savage Refractories Corp. v. Geary, supra. In that case, as in this, x-rays pertinent to the existence of silicosis and an electrocardiogram were involved. Recognition of the Board’s right to use its expert knowledge is implicit, if not, indeed, explicit, in the opinion of this Court in that case. At page 371 of 209 Md., page 217 of 121 A. 2d, Judge Collins said: ‘ * * * The Legislature therefore sought to make certain that the members of the Medical Board were experts on occupational diseases. Johnstown Coal & Coke Co. v. Dishong, supra, 475. The Medical Board, in addition to its expert findings that the possibility of early silicosis was not to be excluded and that the silicotic findings were not the cause of the appellee’s disability, found that the cardiac disease present was the most likely cause of disability.’
“Though the opinion then went on to say that the Board’s ‘expert findings’ were supported by the report of one of the claimant’s own physicians, we do not think that the Board’s right to apply its expert knowledge to the medical evidence before it was regarded as being dependent upon support for its views from the opinion of any physician whose opinion or findings were submitted to the Board. We find no satisfactory reason for permitting the Medical Board to use its own expert knowledge for the purpose of resolving conflicts of opinion among other experts and at the same time for denying it the right to use its same expert knowledge in testing the sufficiency of the evidence offered by only one side to establish a fact which that side must prove in order to establish its claim. We accordingly hold that the Medical Board may apply its expert knowledge to the medical evidence before it and may base its findings and report to the Commission upon such application of such knowledge, whether or not there is medical opinion evidence in the record before the Board in accordance with or at variance with the Board’s findings.” (Emphasis added.) 212 Md. at 398-99, 129 A. 2d at 529-30.

The Evidence in the Subject Case

The Claimant testified that he had been employed by Armco for twenty-seven years. He worked as a towmotor operator until March 1974, when he was transferred to do janitorial work. He testified that he had no hearing loss prior to the commencement of his work at Armco and noticed the beginning of a hearing loss fourteen or fifteen years ago. At the time of the hearing before the Medical Board, Claimant could hear nothing without a hearing aid. He thus described the noise generated in the operation of the towmotor itself:

“Q All right, now. Is there anything unusual about the lift type truck that you are operating for these 23 years?
A A whole lot. Most of the time they got racks up over top to protect you and they don’t keep them tight sometimes, they- can’t hear anything.
Q Well, now, what unusual noises, if any, do you hear as a result of operating the lift truck?
A Well, just iron knocking against iron. Iron hitting against iron.
Q And, how often, how many hours do you usually work a day?
A Eight hours.
Q You usually work five days a week?
A That’s right. Sometimes six and seven.
Q All right. And, how often would you hear the iron rattling against other iron?
A Well, if I’m driving all day.
Q All day?
A That’s right.
Q When you hear it while you’re moving or when you’re standing still?
A When I move. Then when I stand still, it gives a lot of vibration.
Q The vibration keeps on rattling?
A Uh-huh.
Q And, during the period of time you were ■operating this Towmotor or lift truck, are you driving it or are you sitting as a passenger?
A I’m driving it.
Q You drive it. And, when you actually lift up the item or metals, do you actually sit in the driving seat when you do it?
A That’s right. That’s right.
Q Well, do you ever get out of the lift, the tow truck, Towmotor?
A Well, I hardly ever get out. Just if it falls off, sometimes I pick it up.
Q All right. After you lift metal up, do you then drive it to a new destination or location?
A That’s right. Most all them places are noisy there.”

In addition to the noise connected with operation of the towmotor itself, Claimant testified that he worked indoors and out “around furnaces where there is a lot of noise, around grinder shields.” He added that a towmotor driver does not work in one place, he goes every place in the plant. “[I] work around grinding shed, hauling in and out of there. That makes a whole lot of noise ... I have worked up the hammer job where they got to hammer. That’s a whole lot of noise . .. They have a press shop now ... been round the blacksmith’s shop. That keeps noise . .. That’s about the most noise there is .... Work down the wire more. The people keeps a whole lot of noise.”

Claimant testified that he lived in a residential neighborhood and was not subjected to any loud noise other than that to which he was subjected by his employment.

Armco’s job description of a towmotor operator under the heading “Surroundings” contained the following comment:

“All weather conditions where weather may be severe and exposed to heat for intervals and intense noise for periods.” (Emphasis added.)

A routine report of a physical examination of claimant, by a company doctor on May 23, 1961, carried a negative notation after the inquiry “Auditory Acuity Diminished (Spoken Voice).”

A similar report of an examination on January 28, 1969, carried an affirmative notation after the identical inquiry.

A similar report of an examination on February 9, 1973, carried, inter alia, the following comment under the heading “Summary”: “Severe hearing defect.”

A medical report of the Employer and Self-Insurer, dated May 2, 1973, headed “Non Occupational” in decipherable part contained the following pertinent data:

“History: Sent up by foreman for audiogram testing due to marked loss of hearing. Testing done showed loss of L 40-95 dib loss in all ranges. R40-65 dib loss in all ranges. Has hearing loss since 1961. In 1970 was seen by otologist who advised removal of adenoids to improve hearing but employee reluctant to do this.
Examination: Both ears essentially neg. ... No infection.
Audiogram: Left ear 40-95 dib above normal in all ranges
Right 40-65 dib abnormal in all ranges”

Other records offered by Armco, in parts pertinent and decipherable, were as follows:

“1-24-74 On routine P.E. Employee claims he uses hearing aid at home for past several months. To take another audiogram w/ & w/out aid.
1-25-74 Audiogram done today. Has minimal impairment of hearing. With ... of hearing ... to left ear. Impment of 5-35 dib only.
At Mr. Green’s request made appt. for employee to see Dr. Gerlach (Ear Specialist) on 1-28-74.
1-28-74 To & from Dr. Gerlach’s office via station wagon.
Next appt. on 2-4-74 at 1:30 p.m. — was given prescription for ear gtta to instill in right ear Tid.
Phoned Mr. Green as to who would be paying for Dr. Gerlach’s visit as well as prescription — He stated that we wanted an evaluation so therefore we would pay the costs, however if further treatments needed patient would have to pay costs of these.
2-4-74 To and from Dr. Gerlach’s office via station wagon. Patient states Dr. was unable to do hearing test again today. Next appt. on 2-11-74 at 2:30 p.m.
2-4-74 Called Dr. Gerlach. Examined Trafton. Has Rt otic perforation of Tympanic membrane probably dating since childhood? No infection. A lot of.. . Had to complete debridement today and continue drops until next visit when evaluation will be done.
Left ear — intact
Mr. Green notified.
2- 11-74 To and from Dr. Gerlach’s office via station wagon.
3- 15-74 Phoned Dr. Gerlach’s office requesting letter of his evaluation & secretary stated we should have it shortly.
3-20-74 Rec’d statement from Dr. Gerlach
1- 29-74 Exam and Debridement $ 35.00
2- 4, 2-11 Office visits — Treatment 40.00
$ 75.00
Sent to Miss Williams —- Will be forwarded to Mr. P. Greene.
11-22-74 Mr. Z. . . phoned requesting .... report — Pt. is alleging........because of .... causing hearing loss.”

The specialist to whom Armco referred Claimant reported to Armco on April 2, 1974, advising the employer as follows:

“On January 29, 1974 at my office I examined Mr. Herbert Trafton for Otologic Evaluation as requested. Mr. Trafton is employed at Armco Steel Corporation as a tow motor operator. He tells me that he has impaired hearing and uses a hearing aid. Years ago he used to have earaches. Examination in the office under the surgical microscope revealed the left tympanic membrane to be intact after removal of a large amount of cerumen from the ear canal. On the right the lower tense part of the eardrum membrane was seen to be intact. A mass of hard debris covered the pars flaccida. It was felt that this was a retraction pocket or a perforation. Some of the hard debris was removed at this time and otobiotic eardrops were prescribed. Mr. Trafton was seen again February 4th for further debridement of this area. On February 11th it could be seen that the right eardrum membrane was intact with a retraction pocket. The hearing was tested by pure tone audiometry. A bilateral mixed sensorineural and conductive type impairment was found. It amounts to J-f.5 % loss with the right ear and 50 % loss with the left ear giving a binaural loss of U5%. It is partially compensated for by means of a hearing aid. With such a loss Mr. Trafton should be able to operate mobile equipment. His loss is not psychological. No specific treatment is indicated. He should wear his hearing aid. A follow-up examination should be made in one years time.
If there is any question about this examination and report please let me know.
(signed) James J. Gerlach, MD”
(Emphasis added.)

There is no evidence that Armco directed any question to Dr. Gerlach concerning this report.

In short, the evidence showed that Claimant was employed by Armco as a towmotor operator for more than twenty-five years. Operation of the vehicle itself was shown to produce continuous noise of “iron knocking against iron” during the entire work day. Armco’s job classification form for this position contained the notation that performance of its duties subjected the operator to “intense „ noise for periods.” Annual physical examinations of the Claimant were required by Armco. Such an examination in 1961 showed that “auditory acuity (spoken voice)” was “undiminished.” Subsequent such examinations showed otherwise, i.e., 1969, “diminished auditory acuity (spoken voice)”; 1972, “very bad hearing”; 1973, “severe hearing defect”; 1974, company audiogram made and subsequent reference to specialist who reported “binaural loss of 45%.” Claimant was in no other noisy environment than that of his employment.

We think the cited testimony and documentary evidence heretofore outlined amply furnished an adequate base upon which the Medical Board might apply its expert knowledge and permit it to arrive at the findings made. Duncan v. McNitt Coal Co., supra, at 399 [530]. The Commission plainly was justified in its acceptance of those findings.

Disability Rating

Armco contends that: “. .. it is patently clear that Mr. Trafton’s claim for hearing loss is subject to evaluation and interpretation under Section 25A. It is equally clear that the Medical Board’s finding of 45% hearing loss and the Commission’s affirmance thereof failed to consider or apply the specific standards of Section 25A.”

Article 101, § 25A, in parts here pertinent, reads as follows:

“§ 25A. Occupational deafness.
(a) Occupational deafness shall be compensated according to the terms and conditions of this section.
(b) For compensation purposes losses of hearing due to industrial noise shall be confined to the frequencies of 500, 1000, and 2000 cycles per second. Loss of hearing ability for frequency tones above 2000 cycles per second are not to be considered as constituting disability for hearing.
(c) The percent of hearing loss, for purposes of the determination of compensation claims for occupational deafness, shall be calculated as the average, in decibels, of the thresholds of hearing for the frequencies of 500, 1000, and 2000 cycles per second. Pure tone air conduction audiometric instruments, approved by nationally recognized authorities in this field, shall be used for measuring hearing loss. If the losses of hearing average 15 decibels or less in the three frequencies, such losses of hearing shall not then constitute any compensable hearing disability. If the losses of hearing average 82 decibels or more in the three frequencies, then the same shall constitute and be a total or 100 percent compensable hearing loss.
(d) In measuring hearing impairment, the lowest measured losses in each of the three frequencies shall be added together and divided by three to determine the average decibel loss. For every decibel of loss exceeding 15 decibels an allowance of one and one half (I-V2) percent shall be made up to the maximum of one hundred (100) percent which is reached at 82 decibels.
(e) In determining the binaural percentage of loss, the percentage of impairment in the better ear shall be multiplied by five (5). The resulting figure shall be added to the percentage of impairment in the poorer ear and the sum of the two divided by six (6). The final percentage shall represent the binaural hearing impairment.
(f) Before determining the percentage of hearing impairment, in order to allow for the average amount of hearing loss from nonoccupational causes found in the population at any given age, there shall be deducted from the total average decibel loss, one half (V2) decibel for each year of the employee’s age over forty at the time of last exposure to industrial noise.”

We completely agree with counsel for Armco that disability ratings of occupational deafness must be determined under the formulae prescribed by § 25A.

We completely disagree with counsel for Armco that the findings of the Medical Board and the affirmance of the Commission failed to consider or apply the specific standards of that section. We find not a scintilla of evidence to support the contention. Such a contention was not made to the Medical Board or to the Commission. It was not until the appeal to the Superior Court that such a suggestion was made.

In Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467, 84 A. 2d 847 (1951), it was said:

“It is a general rule that in the absence of evidence to the contrary, administrative officers will be presumed to have properly performed their duties and to have acted regularly and in a lawful manner. All legal intendments are in favor of the administrative decision, and it will be presumed to be correct and valid, if all parties have been given a reasonable opportunity to be heard.
“This general rule is applied when decisions of the State Industrial Accident Commission are challenged in the courts. It applies with particular force in this case, where the Commission based its decision upon the findings of the Medical Board. The Legislature has sought to make certain that the members of the Medical Board are experts on occupational diseases. The Board is composed of three physicians appointed by the Governor with the consent of the Senate from a list of nominees submitted by the Dean of the Medical School of the University of Maryland, the Dean of the Medical School of the Johns Hopkins University, and the Council of the Medical and Chirurgical Faculty of Maryland. By mandate of the Legislature, two of the members of the Board must have at least 5 years of experience in the diagnosis, treatment and care of industrial diseases, and one must be trained in roentgenology and must have at least 5 years of practice and experience.” 198 Md. at 474-75, 84 A. 2d at 850-51.

We shall not, in the absence of any evidence whatsoever, assume that the Medical Board in the first instance and the Commission in the second, failed to give full consideration to a provision of the act they have been entrusted to administer.

In Armco’s brief it is said:

“An assumption that Section 25A was applied by the Board is conclusively rebutted by the conspicuous absence of any audiogram in the record.”

This statement is incorrect. The record contains an audio-, gram (on a form imprinted “Armco Steel Corporation”) dated January 25, 1974. Moreover, Armco records show: (a) that other audiograms had been ordered on May 2, 1973; and (b) that Dr. Gerlach, examining for Armco, in his report specifically pointed out that “The hearing was tested by pure tone audiometry” as required by § 25A (c).

In these circumstances, we deem it appropriate to point out that § 25A (h) reads as follows:

“An employer, otherwise liable under this section, whose employment has contributed to any extent to the employee’s occupational deafness shall be liable for the full extent of the deafness of the employee, unless such employer shall establish by competent evidence (including the results of a professionally controlled hearing test) the extent of the employee’s deafness as it existed prior to exposure to harmful noise in the employer’s employment.”

Perceiving no error, we shall affirm.

Order affirmed.

Costs to be paid by appellant.

      . Article 101, § 67(13) reads as follows:
      “ ‘Occupational disease’ as used in this article shall mean the event of an employee’s becoming actually incapacitated, either temporarily, partially or totally, because of a disease contracted as a result of and in the course of employment, as provided in § 22 of this article.”
      Occupational hearing loss is an occupational disease. Belschner v. Anchor Post Products, Inc., 227 Md. 89, 173 A. 2d 419 (1961); Article 101, § 25A.

      . Created by Article 101, § 27.

      . Section 29 provides in part as follows:
      “... In the event that a petition for review by the Workmen’s Compensation Commission of the findings and report of the medical board has been filed, as herein provided, the Workmen’s Compensation Commission shall review the proceedings, findings and report of the medical board, and upon the record thus made shall render its decision or award upon all issues referred to the medical board. In any hearing, as provided for in §§ 22-30 of this article, held by the Workmen’s Compensation Commission in any case to determine any controversial questions, no finding of fact by the Workmen’s Compensation Commission shall be subject to be reviewed orbe set aside, reversed or modified.”

      . The report was placed in evidence by the Claimant.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    LANDOVER ASSOCIATES LIMITED PARTNERSHIP et al. v. FABRICATED STEEL PRODUCTS, INC.
    [No. 945,
    September Term, 1976.]

      Decided April 15, 1977.

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

      Frank B. Haskell, III, with whom were Mitchell, Haskell & Duley on the brief, for appellants.

      Lawrence A. Melfa, with whom was Thomas L. Hennessey on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Because we are accustomed to a judicial procedure requiring proof of a claim by procuring a judgment prerequisite to obtention of a lien, the pre-Barry statutory “mechanics’ lien” takes on an Alice in Wonderland quality. Notwithstanding there was a similar possessory lien at common law, the concept of lien-first, judgment-after, does not comport with our traditional sense of systemic justice, but it was, until Barry Properties v. Fick Bros., 277 Md. 15, the law of Maryland for 185 years. Under Md. Code, Real Prop. Art., § 9-101 through § 9-113, the lien was created and attached to the property as soon as work was performed upon the property or materials supplied to it. The law presupposed a contract, but its absence could have been raised as a defense.

The lien’s initial life was 180 days but it could be extended for an additional year by properly recording it with the clerk of court. The property owner had the right to bring proceedings to compel proof of validity of the lien, and if he did not do so the claimant was required to commence proceedings to enforce it within that year, or lose it.

Appellee, Fabricated Steel Products, Inc. (Fabricated), recorded its lien against appellant Landover Associates Limited Partnership (Landover) on March 12, 1975. The general contractor of Landover, Burroughs and Preston, Inc. (Burroughs), who had engaged Fabricated as a subcontractor, petitioned the Circuit Court for Prince George’s County on March 26, 1975 to release the lien and offered to substitute the cash amount of the claim underlying the lien. Fabricated, with some qualifications, consented to the release. The consent agreement concluded:

“The substitution in no way releases or relinquishes the claim of Fabricated Steel Products, Inc. and reserves its claim and each [and] every facet thereof as though the land were still the subject of the proceedings.”

An order permitting the substitution was granted. This order was subsequently supplanted by an order permitting substitution of a bond for the cash. A bill of complaint to enforce the mechanics’ lien was filed on April 7,1975 against Landover. There was some confusion in the case as to which of two cases the bond applied, because the petition to release the lien received one number and the subsequent petition to enforce the lien received another. The issue was settled by an order granting Fabricated’s motion to consolidate and to amend “so as accurately to reflect the status of the case as it now exists.” The amended bill of complaint included the bonding company, Maryland Casualty Company, as well as Burroughs, as defendants.

On December 16, 1975 Landover demurred to the bill of complaint on the grounds

“That the Maryland’s Mechanics’ Lien Statute is unconstitutional...”

and that

“the burden of instituting judicial inquiry as to the bona fides of the claim and/or its validity, rests upon the defendants [sic ?].”

The court overruled the demurrer and permitted Landover time to answer. Following the answer, a full hearing was held on the bill to enforce, which resulted in a decree that found “a valid Mechanics’ Lien ... to exist in favor of the Plaintiff as against the Defendants”.

Six issues are raised on appeal by appellants Landover, Burroughs and Maryland Casualty.

I

“Does the unconstitutional nature of the previous Mechanics’ Lien Statute with respect to procedural due process of law bar the Plaintiffs/Appellee’s suit to enforce a mechanics’ lien?”

The short answer is “no”. The reasons are not so succinct. Appellants rely most heavily on a footnote in Barry supra, to distinguish the instant case from the result in Barry. Meeting the question of the constitutionality of the Mechanics’ Lien law in that case, the Court’s holding was that:

“... under the current statute there can be no existing lien on property until and unless the claimant prevails either in a suit to enforce the claimed lien or in some other appropriate proceeding providing notice and a hearing (i.e., a declaratory judgment action).” 277 Md. at 37.

But the Court decided the remainder of the statute could stand since the defective portions were severable:

“We think that this can be accomplished by exercising that portion of the statute which purports to create a lien from the time work is performed or materials furnished to the time a lien is established by judicial determination ... .” Id. at 37.

The holding transformed the lien from an absolute security which attached against a given property as the debt was incurred, to a “claimed” security right against that property subject to proof, as any other claim. In short, placing the lien before the judgment was “stuff and nonsense”. If one has a claim it must be proved before a lien attaches.

Appellants are misled by the application of Barry’s facts to its holding. The result of that case was to allow the lien to attach because the claimant had prevailed in the suit to enforce the claimed lien. This suit satisfied the due process prerequisite of a hearing. The Court pointed out that the property owner “knew of the [claimant's claim to a lien sometime well prior to the [claimant’s institution” of the enforcement action but failed to challenge “the lien’s validity at that point”. The Court then concluded that the property owner “elected not to assert any right it may have had to have its position determined as of a time earlier than the hearing . ...” Id. at 38. The Court therefore concluded that before the final determination by the chancellor at the conclusion of the enforcement hearing, the property owner had been provided with notice and a hearing.

As indicated, appellants’ reliance rests primarily upon a footnote in the course of the Court’s discussion in Barry, wherein it attempted to distinguish the Barry facts from the Supreme Court cases:

“14. In this regard we mention that in neither North Georgia Finishing [, Inc. v. Di-Chem. Inc., 419 U. S. 601], Mitchell, Fuentes nor Sniadach, [all supra, n. 3] in contradistinction to this case, was there an adjudication on the merits of the creditor’s claim. Rather, in each of those cases the property owner sought, by way of an injunction, declaratory judgment, motion to dismiss, motion to dissolve or some other similar procedure, to defeat the particular prejudgment creditor remedy at a point prior to an adjudication on the merits, with the appeal being taken from the denial of the requested action and without there being a determination of the underlying claim.” Id. at 38.

Landover contends that its demurrer on constitutional grounds was an “other similar procedure” placing it in a position to defeat the creditor at a point prior to an adjudication on the merits.

The demurrer was overruled by Judge Ernest A. Loveless, Jr., although he did not hear the case on its merits. Implicit in his holding was the theme that the demurrer was not an attack on a then-existing lien so much as it sought to eliminate the claim to the lien which was subject to adjudication upon the hearing to enforce. After pointing out the care taken by the Court of Appeals to preserve as much as possible of the Mechanics’ Lien law, he explained that:

“Footnote 14 would have been applicable had the land owner sought to remove a recorded lien on the Land records, considered as a cloud on the title, as to the property on which it was claimed prior to a judicial determination, or some other similar remedy. Under the majority opinion this case and the action on the land would certainly appear to fall under the ‘suit to enforce the claimed lien or in some other appropriate proceeding’ supra.”

We agree with Judge Loveless. The Court of Appeals by example indicated that it would preserve the rights of a claimant to the extent that he had provided the due process prerequisites to the owner, and would not let the form of the action destroy its substance if fundamental fairness was maintained. We further note, as indicated by Mitchell v. W. T. Grant Co., supra, “due process” is not offended because there was no deprivation of property prior to a hearing.

Landover did not raise the constitutional issue until eight months after the enforcement action commenced, and then directed its attack, not upon the question of the then-existence of the lien, but rather at the whole proceeding, contending that it was invalid on the theory that the entire statute was unconstitutional. The effect of Judge Loveless’ opinion was that which we regard as the effect of Barry, i.e., that prior to a hearing “no such lien attaches to the real estate”. Residential Industrial Loan Company, Inc. v. Manual M. Weinberg, Trustee et al., 279 Md. 483 (1977). Thus Barry had the effect of transforming the “Bill of Complaint to Enforce a Mechanics’ Lien” into a “Bill of Complaint to Establish a Mechanics’ Lien”. The fact that Burroughs chose to provide some security with the court pending the proceeding rather than treat the lien as “void ab initio”, Barry at 38, was an act of volition on its part, an act which it cannot now contend to have been a deprivation of property. No ruling was ever sought as to whether a lien had attached to the property, and to permit the security to be filed in lieu of an assured lien was not an error on the court’s part. It is errors of court we review — not errors of judgment by the parties. See Braun v. Ford Motor Co., 32 Md. App. 545.

Here, as in Barry, it is not unreasonable to permit the claimant to pursue his claim without returning him to square one, since Landover had not sought a ruling on the nonexisting lien, but only sought to obviate prior proceedings to establish the claim. To begin again when procedural due process was not denied would serve no justifiable purpose.

II

Notice by Registered Mail

Appellee introduced a copy of a letter addressed to Landover entitled “Notice of Intention to File Mechanics’ Lien”. Two receipts came in with the letter, one showing that the letter was sent by certified máil and one that it was received by someone whose signature was not sufficiently legible to be identified. The address at which the letter was received was the same as that at which subpoena service was made upon Landover, as indicated by the sheriff s return.

Appellants contend that “something more than merely mailing a registered letter is required to give notice to the owner”, and because of the illegible signature, they contend, appellee failed to prove notice pursuant to the statute in force at the time.

We cannot follow that reasoning. The statute then extant was Real Prop. Art., § 9-103, which said in pertinent part that:

“ ... the person doing the work or furnishing the material, or both is not entitled to a lien unless,... he or his agent gives notice in writing, which may include registered mail, to the owner or agent if the owner or agent resides in the county, of his intention to claim a lien." (emphasis added).

For at least a century past, Maryland has recognized a “legal presumption” from proof of proper mailing that the communication was received. Yoe v. The Benjamin C. Howard Mutual Benevolent Association, 63 Md. 86, 92; Kolker v. Biggs, 203 Md. 137, 144; McFerren v. Goldsmith-Stem Co., 137 Md. 573, 18 A.L.R. 1125. This presumption is based upon a further presumption that in delivering the mail the postal authorities do what the law requires of them, Fidelity & Casualty Co. v. Riley, 168 Md. 430, 433 (in delivering a registered letter). We see no error in the admission of the letter. Moreover, it was a sufficient compliance with the requirements of Real Prop. Art., § 9-103, to warrant a finding of notice to the owner of a claimed lien.

Ill

Evidence of the Mechanics’ Lien

Appellants contend that because appellee did not “move into evidence” the claim for mechanics’ lien recorded with the clerk of court, it failed to meet its burden of proof and the complaint for enforcement should have been dismissed.

Again we disagree. The court can obviously notice its own records, Garland v. Garland, 22 Md. App. 80, 82-85, which here include the recorded claim. Citing 9 J. Wigmore, Evidence, § 2579 (3d ed. 1940) Judge Thompson in Garland set forth the rule for this Court:

“ ‘However, for reasons of convenience, where controversy is unlikely and the expense of a copy would be disproportionate, Courts are often found taking notice of the tenor or effect of some part of a judicial proceeding, without requiring formal evidence. Since this dispensation is not obligatory on the part of the Court, and since it must depend more or less on the practical notoriety and certainty of the fact under the circumstances of each case, little uniformity can be seen in the instances. It is often done for a part of the record in the same proceeding, or in a prior stage of the same controversy; less often for the record of a distinct litigation, especially when in another Court.' ” Id. at 83.

The petitions praying substitution of cash and bond for the property, which were filed in the record, gave a thorough description and reference to the lien claim, as do the pleadings to enforce, which contained a copy of the recorded lien. By their pleadings appellants acknowledged the lien and their conduct never belied it. In fact, their counsel, who can bind them by admissions in opening statement, McLhinney v. Lansdell Corp. of Md., 254 Md. 7, 13; Lust v. Kolbe, 31 Md. App. 483, 491, did precisely that when he stated to,the court that “A lien was filed by the plaintiffs.”

IV

Sufficiency of Setoff Evidence

Appellants argue that the court missed the thrust of their setoff contention and as a result erred on two factual conclusions (i.e., cold weather delay and Burroughs’ delay). Because we have reviewed the entire record and have found sufficient evidence upon which the court could have reached its conclusions, we see no purpose to be served by discussing each of appellants’ theories. Suffice to say we could not find the chancellor clearly erroneous — and that is the test we must apply. Md. Rule 1086.

V

Effect of Reenactment of the Statute

Appellants contend here, but did not below, that because the mechanics’ lien statute was “repealed and reenacted”, a hiatus was created in the law compelling appellee to begin again under the new rules because “repeal” divested appellee of all inchoate interests. Without going into appellants’ misunderstanding of legislative procedure, we decline to recognize this issue because it was not tried and decided by the lower court. Md. Rule 1085.

VI

The Decree, in Personam or in Rem

Appellants, who at oral argument admitted that they had consented to the form of the decree, now attack that form. They point out that the proceeding to enforce a mechanics’ lien is exclusively in rem, Clark Concrete Co. v. Lindberg, 216 Md. 576, 582; Gaybis v. Palm, 201 Md. 78, 83, but that the decree is in the nature of an in personam one because it was entered against all of the defendants, Landover, Burroughs and Maryland Casualty.

Such error as may appear is an error of form and lack of clarity. The scope of the judgment may not exceed that to which the lien sought was entitled to attach; i.e., as to the property owner, the property; and as to the contractor and its surety, the bond they elected to post. Such error as appears in the decree was not harmful or prejudicial, Adams v. Benson, 208 Md. 261, 269; Blondes v. Hayes, 29 Md. App. 663, nevertheless we will vacate the decree for revision upon remand pursuant to this opinion.

Decree vacated and case remanded for revision pursuant to this opinion.

Costs to be paid by appellants.

      . Barry Properties v. Fick Bros., 277 Md. 15, decided February 10,1976.

      . See Alice's Adventures in Wonderland, Chap. 12, p. 187:
      “No, No!” said the queen. “Sentence first — verdict afterwards.”

      . “Stuff and nonsense!” said Alice loudly. “The idea of having the sentence first!” Alice’s Adventures in Wonderland, op. cit.

      . But see Mitchell v. W. T. Grant Co., 416 U. S. 600, 611 where a plurality of the Court (four members) explained the cases upon which Barry was founded, i.e., Sniadach v. Family Finance Corp., 395 U. S. 337 and Fuentes v. Shevin, 407 U. S. 67, with the following language:
      “Their import, however, is not so clear as petitioner would have it: they merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided. The usual rule has been ‘[wjhere only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.’ ” 416 U. S. at 611.
      This was interpreted by a fifth member of the Court, Mr. Justice Powell, concurring in the result, not as explaining Fuentes, supra, but as overruling it:
      “In sweeping language, Fuentes v. Shevin, 407 US 67, 32 L Ed 2d 556, 92 S Ct 1983 (1972), enunciated the principle that the constitutional guarantee of procedural due process requires an adversary hearing before an individual may be temporarily deprived of any possessory interest in tangible personal property, however brief the dispossession and however slight his monetary interest in the property. The Court’s decision today withdraws significantly from the full reach of that principle, and to this extent I think it fair to say that the Fuentes opinion is overruled.” 416 U. S. at 623.


text:
    CHARLES WAYNE LINK v. ALICE PAIGE LINK
    [No. 947,
    September Term, 1976.]

      Decided April 15, 1977.

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

      Richard A. James for appellant.

      Thomas M. Schifanelli for appellee.
   Lowe, J.,

delivered the opinion of the Court.

In the Circuit Court for Calvert County, by decree dated August 11, 1976, appellee was granted a divorce a mensa et thoro from appellant, on the ground of desertion. The decree also awarded appellee custody and guardianship of the parties’ minor child subject to appellant’s specified visitation rights, forty dollars a week in alimony, eighty dollars a week as contribution toward the support of the child, and one thousand dollars in counsel fees. An appeal was noted on September 1, 1976.

On September 7, 1976 appellee filed a petition for contempt for nonpayment of alimony and counsel fees. Appellant was denied a continuance on September 28 and denied a removal on October 1, 1976. At a hearing held on October 11, 1976, neither appellant nor his counsel appeared. Appellee’s testimony clearly showed that little of the alimony and none of the counsel’s fee had been paid. On October 20 the court entered judgment for the deficiency and ordered the clerk to issue an attachment for the apprehension of the respondent on the citation for contempt. An appeal was noted on October 29, 1976.

Appellant raises seven assignments of error upon appeal, four of which pertain to the August 11 decree and three of which relate to the October 20 decree. We will respond first to the issues relating to the contempt decree and save for last those concerned primarily with sufficiency of the evidence in the divorce proceeding.

THE CONTEMPT PROCEEDING

Appellant contends that the October 20 decree is erroneous for three reasons. Initially he challenges the lower court’s jurisdiction to entertain the petition for contempt and arrearages on the ground that, once an appeal is noted, the court is without jurisdiction to take any futher action in the case. Next he argues that his motion for removal should have been granted. Finally, he asserts that Subtitle P of the Maryland Rules was not complied with in that his appearance at the contempt hearing was never ordered.

Jurisdiction Pending Appeal

Appellant’s argument is based upon the theory that once an appeal has been noted the lower court is without jurisdiction to take any further action in the case until the appeal is decided, and that the court below was thus without jurisdiction to find him in contempt for violating the decree which was being appealed. The general rule, indeed, is that the noting of an appeal divests the lower court of jurisdiction to proceed with regard to the issue appealed. See, e.g., Lang v. Catterton, 267 Md. 268; Visnich v. Wash. Sub. San. Comm., 226 Md. 589; Collier v. Collier, 182 Md. 82. But like all rules, it is not without its exceptions. While there appears to be no Maryland decision squarely on the issue here, a number of cases are so closely related that it is apparent the chancellor had jurisdiction to pass the October 20 decree. Presumably the lack of direct authority derives from the generally understood premise upon which we hold jurisdiction to be founded, i.e., the inherent authority of a court to enforce its decrees subject only to an express stay.

Because the wife has long been regarded as a privileged suitor in domestic relations actions, Maryland cases have uniformly held that a divorce court has jurisdiction to entertain her petition for alimony, child support and counsel fees, even though her petition is filed after an appeal from the grant of denial of a divorce has been noted. See, e.g., Rohrback v. Rohrback, 75 Md. 317; Buckner v. Buckner, 118 Md. 263; Crane v. Crane, 128 Md. 214; Sterling v. Sterling, 145 Md. 631; Daiger v. Daiger, 154 Md. 501; Timanus v. Timanus, 178 Md. 640; Saltzgaver v. Saltzgaver, 182 Md. 624; Dougherty v. Dougherty, 187 Md. 21; Rhoderick v. Rhoderick, 257 Md. 354; Jackson v. Jackson, 272 Md. 107. Furthermore, the chancellor retains jurisdiction to modify alimony even after an appeal has been taken. Lewis v. Lewis, 219 Md. 313; Hornstein v. Hornstein, 195 Md. 627.

The two cases most closely akin to the issue of whether the chancellor had jurisdiction to compel appellant to pay the alimony, support and counsel fee arrearages even after an appeal has been noted are Lewis v. Lewis, supra, from the Court of Appeals and Garland v. Garland, 22 Md. App. 80, cert. denied, 272 Md. 741, both dealing with modification of alimony.

In Lewis, the wife was granted a divorce, alimony and counsel fees, and both parties appealed. Subsequently, upon a show cause order to compel payment of the alimony, appellant petitioned the lower court to modify the order of alimony. The Court primarily addressed areas not here relevant. The only discussion of the show cause or modification proceedings upon appeal was with regard to the chancellor’s refusal to modify the alimony. 219 Md. at 315-316. In addressing that question hypothetically (since there was no appeal from the order) the Court noted that although the chancellor had jurisdiction to modify the decree his refusal to do so was not an abuse of discretion. In order to reach its jurisdictional conclusion, the Court set forth a foundation which is most meaningful here:

“It is well settled that the entry of an appeal from a final decree does not stay the operation of an order for the payment of alimony. Berman v. Berman, 191 Md. 699, 706; Daiger v. Daiger, 154 Md. 501, 508. A wife is entitled to the continuance of alimony during the pendency of an appeal to this Court and until its final disposition.” Id. at 316.

The Court of Appeals seems to have endorsed the chancellor’s jurisdiction not only to modify its decrees but, by implication, to enforce its decrees as well, since its operation is not stayed by the appeal.

We find it significant that the Rules of Procedure relating to appeals only permit a stay of execution of judgment in expressly delineated areas (none of which include alimony or divorce), or when a trial judge expressly stays execution as by setting a supersedeas bond. Md. Rules 1016-1021. It seems clear that by promulgating this method of staying execution of judgments and decrees, the Court of Appeals did so in recognition of the fact that judgments must be obeyed despite appeal unless some authority and procedure is propounded to stay them. See Marsh v. State, 22 Md. App. 173, 184-185 and cases cited therein. It follows that if judgments must be obeyed despite an appeal, the court necessarily retains an inherent power to enforce them and, in light of Lewis, that is especially clear as to alimony awards. The foundation of the privileged suitor status of the wife is to raise her pecuniary posture as litigant in domestic cases from an inpecunious supplicant to one of equal status with her husband. This could not be the result on appeal if the alimony and counsel fee awards were not enforceable pending the result.

We see no basis upon which to conclude that the chancellor in the case at bar exceeded his jurisdiction. If a court is allowed to award and modify alimony, child support and counsel fees pending an appeal, there is no reason why it cannot enforce its decree. See Lewis v. Lewis, supra.

Removal

Because the chancellor had remarked in the original hearing that if appellant did not make the payments directed by the court he would go to jail, appellant sought removal of the contempt hearing from Calvert County, filing an affidavit to the effect that he could not obtain a fair trial from the chancellor in that county.

The short answer to this question, as recognized by the chancellor, is that there is no right of removal in equity. Olson v. Love, 234 Md. 503, 504. Even if the petition had been to recuse the judge for prejudice, the grounds offered were too absurd to warrant a reply to that “might have been” question.

The “P Rules”

Appellant also complains that a writ of attachment may not be issued without the defendant having been ordered to appear personally for the contempt proceeding. Md. Rule P4, § b. The record clearly reflects that the appellant was ordered on September 8, 1976 to show cause on or before October 1, 1976 why the relief prayed in the petition for contempt should not be granted. The petition, incorporated by reference into the decree, set forth the award by decree against appellant and alleged appellant’s nonpayment. It was also ordered that the cause stand for hearing on October 11, 1976 at 9:00 a.m. That is in compliance with Md. Rule P4, § b. There being no contention on appeal of improper service, appellant has no cause to complain because the ensuing hearing was ex parte. Md. Rule P4, § c.

THE DIVORCE PROCEEDING

Sufficiency of the Evidence

Appellant contends that the evidence is insufficient to support the chancellor’s finding either that appellant abandoned his spouse or that he had the intention of deserting her, two elements essential to the proof of desertion sufficient to sustain a grant of an a mensa divorce on the ground at issue. See Fuller v. Fuller, 249 Md. 28, 30-31. We disagree. There is ample testimony in the record from which the chancellor could have concluded that appellant unjustifiably abandoned appellee in July 1975 with the intention of deserting her and that the one subsequent incident of sexual relations between the parties was coerced and did not amount to condonation. The chancellor's findings of fact were not clearly erroneous in view of the evidence. Md. Rule 1086.

For future guidance, we point out to counsel that upon questions raising the insufficiency of the evidence, the appellant must provide in the record extract the evidence favorable to appellee relevant to the sufficiency issues as well as that favorable to himself, and the appeal is subject to dismissal if only evidence favorable to appellant is included. Md. Rule 1028; Gmurek v. Kajder, 203 Md. 437; Sunshine Laundry Corp. v. White, 197 Md. 582.

Alimony and Support

The second and third assignments of error are also directed to portions of the decree which we can reverse only if we find the chancellor to have been in clear error. Md. Rule 1086. Appellant argues that the award of alimony, child support and counsel fees were erroneous because appellee failed, to prove that her income was insufficient to care for her needs and the needs of the child, and because he cannot afford the amounts required of him. We again disagree. A review of the record reveals ample evidence of the appellee’s need for the sums awarded. See Md. Code, Art. 16, §§ 5, 5A. The chancellor found as a fact that appellant was in good physical condition, had a good earning capacity and could earn up to $22,000 a year if he chose to exercise it. He also found that his conduct had destroyed the home. These are all factors to be considered in addition to the appellee’s need. Waters v. Waters, 191 Md. 436, 440-441; Birdsall v. Birdsall, 23 Md. App. 502, 513-514.

Appellant argues that Sody v. Sody, 32 Md. App. 644, stands for the proposition that the husband is not obliged to make payments which exceed his actual resources. That case, however, like many others, merely holds that the husband’s resource is one factor, among others, to be considered. On the other hand, it is settled that a husband cannot voluntarily impoverish himself to avoid paying alimony, and that his overall financial potential, not his current income, is controlling. Colburn v. Colburn, 15 Md. App. 503, 515-516. The court could have so concluded from the testimony. We hold that the chancellor was not clearly wrong in awarding the amounts at issue.

Visitation

Appellant’s last complaint is that the chancellor in effect denied the natural father visitation with his minor child. That contention is not borne out by the decree which allows appellant to have the child on alternating weekends and for one week each s.ummer. The further contention that visitation was conditioned upon payment of support and alimony is without merit. The court’s comment that: “If he doesn’t get a job to make these payments that question [visitation] becomes moot, because we are going to put him in jail and there is no point in having the child in jail with him.”,, was simply placing emphasis upon the penal result of nonpayment. That the child would not be with him if he went to jail was an aside pointing to a tangential inconvenience of incarceration. Payment was not the quid pm quo for visitation, but loss of visitation was a logical consequence of incarceration which would follow nonpayment. The point is strained at best. We see no abuse of discretion in determining appellant’s visitation rights. See Dorsey v. Dorsey, 245 Md. 703, 704: Townsend v. Townsend, 205 Md. 591.

Judgments affirmed.

Costs to be paid by appellant.

      . The chancellor made no finding of contempt. In fact, he expressly struck from the prepared order a phrase indicating such finding.

      . In Garland v. Garland, supra,we followed the same pattern. The wife there was awarded a divorce, alimony, child support and counsel fees. The husband appealed. While the appeal was pending, the wife filed a petition for contempt and modification of the divorce decree. The relief prayed was granted. We held that the trial court had jurisdiction to modify support payments pending appeal. 22 Md. App. at 85.


author: Moylan, J.,

text:
    JOHN HOFMEISTER et al. v. THE FRANK REALTY COMPANY
    [No. 152,
    September Term, 1976.]

      Decided May 11, 1977.

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

      William F. C. Marlow, Jr., with whom was F. Vernon Boozer on the brief, for appellants.

      E. Stephen Derby, with whom were Piper & Marbury and Nolan, Plumhoff& Williams on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

If the imprecise use of language plagues the law generally, it falls upon the head of the zoning law with peculiar vengeance. The root problem giving rise to the present appeal was the failure of the lawmaking authorities of Baltimore County to distinguish cleanly between the Genus “Special Exceptions” and the Species “Special Exceptions.” The phrase was used in one critical context, at least, with a broad, generic meaning; the same phrase was used on other occasions with a more limited and specific meaning; the lawmaking authority never pinpointed which meaning it had in mind on a particular occasion nor did it even seem aware .of the potential semantic problem lurking within its linguistic imprecision.

Although the problem before us for resolution is exclusively one of law, the factual background must be set. The appellee, Frank Realty Company (Frank), owns Overlea Hall, which is a catering establishment in Baltimore County. It is located on Belair Road, a major thoroughfare in a business district. Overlea Hall does not have its own parking lot, but it is situated next to a Union Trust Bank, which does. The customers of Overlea Hall park either on the bank lot or on the surrounding streets. In 1970, 1972 and 1973, Frank acquired three properties, adjacent to and in the rear of Overlea Hall, forming one integrated tract and having frontage on two side streets. On the tract, Frank desired to build a parking lot for 84 vehicles.

Pursuant to the Baltimore County Zoning Regulations (1975 Ed.l (BCZR), Overlea Hall was zoned Business Local (BL) in a Commercial Community Core (CCC) District. Catering is a use permitted in such a zone. The land on which the parking lot was to be built, however, was zoned Residential. Off-street parking is not a use permitted as of right in a residential zone, but is a permitted use if a Special Use Permit is applied for and issued pursuant to § 409.4 of the BCZR.

Over the protestations of the appellants, who are residents of the affected area, the Baltimore County Zoning Commissioner on June 4, 1974, granted Frank a Special Use Permit for off-street parking in a residential zone. Appellants, joined by the Baltimore County Deputy People’s Counsel, appealed to the County Board of Appeals, who, on July 29, 1975, upheld the grant. The County Board of Appeals found that the requirements of § 409.4 and of § 502.1 of the BCZR had been satisfied and held that the Zoning Commissioner had the power to issue Special Use Permits. From that ruling, an appeal was taken to the Baltimore County Circuit Court. In that court, Judge John Grason Turnbull upheld the decision of the County Board of Appeals. That decision of Judge Turnbull has now been appealed to us.

The appellants do not contend that the action of the County Board of Appeals was “arbitrary and capricious” or lacked factual support. The sufficiency of the evidence on the merits of whether Frank had satisfied the pertinent requirements was not seriously disputed. The key issue presented by the appellants is that of whether the Zoning Commissioner and the County Board of Appeals possessed the delegated authority to grant such Use Permits at all. In question is the general authority and not the merits of this individual exercise of authority.

Before addressing its merits, we will state the argument as posed by the appellants. They contend that a “Special Permit” (or Use Permit) and a “Special Exception” are distinct legal phenomena. In this regard, they find arguable support in the words of the Court of Appeals in Marek v. Board of Appeals, 218 Md. 351, 357, 146 A. 2d 875, to the effect that a request for an off-street parking permit “is not a request for a Special Exception.” They further contend that prior to 1960, the Baltimore County Commissioners and their successors, the Baltimore County Council, explicitly delegated to the Zoning Commissioner of Baltimore County the power to issue both “Special Permits” and “Special Exceptions.” The final premise in the argument is that a major change was made in this grant of authority by Bill No. 80, enacted by the County Council in 1960. That bill explicitly repealed § 34-11 of the Baltimore County Code (1958 Ed.) which had delegated certain powers (including the power to issue Special Permits) to the Zoning Commissioner, and replaced it with § 22-23 which provided in pertinent part:

“Authority of zoning commissioner to provide for special exceptions and variances.
Subject to the appropriate principles, standards, rules, conditions and safeguards as set forth in the zoning regulations, the zoning commissioner may.. . make special exceptions to the zoning regulations in harmony with their general purpose and intent...”

The appellants argue strenuously that “No mention was made of any other authority being vested in the Zoning Commissioner...” and “More important is the fact that the term and authority to issue a ‘special permit’ was deleted altogether.” It is their position that in the repealing and reenacting of the grant of authority to the Zoning Commissioner that occurred in 1960, the Zoning Commissioner was stripped of all power to issue Special Use Permits.

The problem is clear-cut. The grant of authority, by its terms, authorizes “Special Exceptions” but not “Use Permits.” Thus, if a “Use Permit” is a variety of “Special Exception” within the contemplation of § 22-23, then the authority to issue such a “Use Permit” has been delegated to the Zoning Commissioner and the present decision will be affirmed. If, on the other hand, a “Use Permit” does not fit under the umbrella of “Special Exception,” the authority to issue such “Use Permit” has not been delegated to the Zoning Commissioner and the decision must be reversed. The appellee urges that a “Use Permit” is a “Special Exception”; the appellants urge that it is not.

We conclude that the question is not so simple and clear-cut. A “Use Permit” both is and is not a “Special Exception,” depending upon which meaning of “Special Exception” the legislative authors of the phrase had in mind upon the particular occasion when they used it. A “Use Permit” is within the generic meaning of “Special Exception”; it may not be within the specific meaning of “Special Exception.” The question, therefore, becomes that of whether the Baltimore County Council, when it delegated to the Zoning Commissioner the power to make “Special Exceptions,” intended to use the phrase in its broad and generic sense or in its narrower and more specific sense.

Having stated the issue, we seek the path to its resolution through the legislative and linguistic tangle of the Baltimore County zoning experience. We begin with a broad principle of zoning law not parochial to Baltimore County but universal to the zoning cosmos. Within each zone created, there are primary and designated uses available as a matter of right with no permission needing to be sought from any zoning authority. There are other uses proscribed by law and, therefore, beyond the pale, absent a zoning reclassification. Between the two poles is a borderland wherein certain uses are not prohibited by law but neither are they absolutely permitted as a matter of unconditioned right. Generally speaking, they are privileges which must be sought from and authorized by some administrative agency (a zoning commissioner, a zoning board, etc.), which possesses the authority to condition the grant of permission, influenced by a number of relevant social considerations. The uses of the property in issue are permitted uses, generally compatible with the zone but not at every or any location therein or without certain restrictions or conditions being imposed. This determination of compatibility and this imposing of conditions is vested in an appropriate administrative authority. In describing this broad phenomenon, the vocabulary has been far from uniform but the law has recognized that the same principle is afoot even when the labels may vary.

82 Am.Jur.2d, Zoning and Planning, XIII. C. “Special Permits or Exceptions,” § 281 “Generally; terminology,” speaks of both the general phenomenon and its fluctuating vocabulary at 827-828:

“.. . A ‘special permit’ or ‘special exception’ designates a species of administrative permission which allows a property owner to put his property to a use which the regulations expressly permit under conditions specified in the zoning regulations themselves. Some zoning laws or ordinances use the term ‘conditional use permit,’ ‘special exception permit,’ or ‘special use permit’ to refer to this type of administrative permission. In one jurisdiction, the term ‘waiver use approval’ has been used. But regardless of which of the foregoing terms is used, the nature of the administrative permission and of the use permitted is, viewed broadly and substantively, the same, since each involves a use which is permitted rather than proscribed by the zoning regulations. In the words of the Supreme Court of Connecticut, ‘the terms “special exception” and “special permit” hold the same legal impact and can be used interchangeably.’ . . .
The function of a special permit is to bring some flexibility to the rigid restrictions of a zoning ordinance while at the same time controlling troublesome or somewhat incompatible uses by establishing, in advance, standards which admit the use only under certain conditions or circumstances.”

3 Anderson, American Law of Zoning, § 15.01, speaks to the same effect, at 84:

“The ‘special exception,’ the ‘special permit,’ and the use permitted subject to administrative approval, are qualitatively the same. Each involves a use which is permitted rather than proscribed by the zoning regulations. Each is allowed only upon approval of a board of adjustment or other administrative body.. .. And in each case, the board is guided and its power limited by hearing requirements and standards.”

2 Rathkopf, The Law of Zoning and Planning, Ch. 54, § 1, n. 1, uses both the terms “special exception use” and “special exception permit” but claims that both are misnomers. He suggests that a more accurate description would be “conditional use permit” because “... no ‘exception’ is made to the provisions of the ordinance in permitting such use; the permit granted is for a use specifically provided for in the ordinance in the case in which conditions, legislatively prescribed, are also found.”

Although frustratingly the vocabulary varies from county to county and although the ultimate arbiter of intended meaning is the local legislative user of the contested words, the Court of Appeals in Rockville Fuel & Feed Co. v. Board of Appeals, 257 Md. 183, 187-188, 262 A. 2d 499, recognized generally that “conditional use” and “special exception” are synonymous terms. In a 1954 decision arising out of Baltimore County, Oursler v. Board of Zoning Appeals of Baltimore County, 204 Md. 397, 104 A. 2d 568, the Court of Appeals did use the terms “permit” and “exception” interchangeably. Although, to be sure, dealing with zoning regulations and, therefore, with vocabulary emanating from Prince George’s County rather than from Baltimore County, the Court of Appeals in Cadem v. Nanna, 243 Md. 536, 543, 221 A. 2d 703, defined the phrase “Special Exception” in terms of the broad and general phenomenon herein being discussed:

“The words ‘special exception’ are well known in zoning law. They refer to a grant by the zoning administrative body pursuant to the existing provisions of the zoning law and subject to certain guides and standards, of a special use permitted under the provisions of the existing zoning law.”

See also Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287, 96 A. 2d 261. Cadem v. Nanna cited as authority the New Jersey decision of Tullo v. Township of Millburn, 54 N.J. Super. 483, 149 A. 2d 620, 624-625, which explained:

“The term [‘special exception’] might well be said to be a misnomer. ‘Special uses’ or ‘special use permits’ would be more accurate. The theory is that certain uses, considered by the local legislative body to be essential or desirable for the welfare of the community and its citizenry or substantial segments of it, are entirely appropriate and not essentially incompatible with the basic uses in any zone. .., but not at every or any location therein or without restrictions or conditions being imposed.... If the board finds compliance with the standard or requisites set forth in the ordinance, the right to the exception exists, subject to such specific safeguarding conditions as the agency may impose . . . .”

Thus, the broad phenomenon does have, here as elsewhere, many labels. Whether the label employed on a particular occasion happens to be “special permit,” “conditional use,” “special use,” “use permit,” or “special exception,” the type of relief described is the same. This broad phenomenon is what we shall refer to as the genus. Generally speaking, the name “Special Exceptions” refers to this genus.

What remains to be seen is how the name “Special Exceptions” came to take on a more limited and specific meaning in the zoning experience of Baltimore County. As we shall see, however, that additional and narrower meaning was not in lieu of, but rather in addition to, the broader and more general meaning, which continued to enjoy a separate vitality of its own.

The process of evolution or differentiation, linguistically as well as biologically, is easy to understand. The genus initially was a simple and undifferentiated life form (or zoning phenomenon). Over the years, however, certain specific instances of the more general phenomenon were recognized as having some unique identifying characteristics, some unique problems, and some unique guidelines of their own. As these ascertainable instances of the more general phenomenon were singled out for separate handling, they came to be identified as distinct species within the broader genus. This was particularly true of that instance of “Special Exceptions” which came to be known as the “Use Permit” for off-street parking in a residential zone.

Zoning regulations were first adopted by the County Commissioners of Baltimore County on January 2, 1945, pursuant to a special enabling act, aopted by the Maryland Legislature in the Acts of 1941, Ch. 247. The County Commissioners were authorized to appoint a Zoning Commissioner and a Board of Zoning Appeals to hear and determine issues raised pursuant to the regulations. Among his other powers, the Zoning Commissioner was empowered to make Special Exceptions and to issue Special Permits within appropriate guidelines. The Code of Public Local Laws of Baltimore County (1948), Title 23, § 367 established § XIII of the Zoning Regulations, entitled “Powers Relative to Special Exceptions and Special Permits.”

That § XIII of the Zoning Regulations and Restrictions for Baltimore County (Doing Ed., 1948), indicated the still-loose interchangeability of the terms “special exception” and “special permit,” on the one hand, but also began the process of differentiation between them, on the other hand. Although the term “special exception” is contained in the title, the text of the section nowhere employs it but uses only the term “special permit.” Indeed, § XIII’s preamble provides that “. .. such uses may be permitted only upon a special permit granted by the zoning commissioner, subject to appeal...” It appears that the Special Permit authorized the Special Use, the total effect of which could be described as a Special Exception. In terms of the beginning of differentiation, subsection A treats generally the special permits that shall be required for a list of designated uses in a residential zone. It does not include off-street parking. It is rather in a separate section, subsection C, that off-street parking receives its separate treatment: “In any residential zone a special permit shall be required for use of land for automobile parking, subject to the following regulations.”

The process of differentiation went further in 1955 when the Baltimore County Commissioners excised from the old § XIII the provisions dealing with off-street parking in a residential zone and housed them in § 409.4 of the Baltimore County Zoning Regulations. Several other conditional uses or “Special Exceptions,” which also had taken on distinct identities and involved distinct guidelines and regulations, were also lodged in Art. 4 of the BCZR which was entitled “Special Regulations.” The remainder of the “Special Exceptions,” which were not singled out for special handling, were treated in § 502, called “Special Exceptions.” (It would have been preferable, of course, if § 502 had been entitled “Other Special Exceptions.”) The differentiation proceeded further when § 500, listing the powers of the Zoning Commissioner, listed his power to issue a use permit (such as for off-street parking) in subsection 500.4, but then listed his power to deal with “Special Exceptions” under § 502 in a separate subsection, 500.2. We may thus perceive, as other conditional uses begin to take on separate identities and branch off from the main stem, the emergence of a distinct species “Special Exceptions,” including in its ranks the remainder of the conditional uses which have not taken on distinct identities. The species “Special Exceptions” is now a part of the genus “Special Exceptions.” Therein is the heart of the problem. The same name now refers 1) to the whole and 2) to a part of the whole.

Notwithstanding this differentiation between the species, we think it preeminently clear that the singling out of certain conditional uses for special treatment in Art. 4 of the BCZR did not in any fashion denigrate from their credentials as members in continued good standing of the genus “Special Exceptions.” Art. 4, in its Statement of Purpose, makes the reason for the distinct treatment quite clear:

“Certain uses, whether permitted as of right or by special exception, have singular, individual characteristics which make it necessary, in the public interest, to specify regulations in greater detail than would be feasible in the individual use regulations for each or any of the zones or districts. This article, therefore, provides such regulations.” (Emphasis supplied)

Indeed, various of the special conditional uses singled out for individual treatment in Art. 4 explicitly retain their membership in the genus “Special Exceptions.” A mere representative list includes § 402.3 (The conversion of a residence “for tearoom or restaurant use” is “a Special Exception.”); § 402B (“An antique shop may be permitted as a Special Exception.”); § 402C (“A residential art salon may be permitted as a Special Exception.”); § 405.2 (“Locations in which automotive-service stations are permitted as of right and by special exception.”).

Baltimore County adopted a charter form of government as of December 6, 1956. The Baltimore County Code, 1958 Ed., granted power to the Zoning Commissioner by § 34-11. It referred explicitly to both “special exceptions” and “special permits.” It explicitly confirmed the authority of the Zoning Commissioner to continue to do those things which had been “required by § XIII of the Zoning Regulations of Baltimore County, as adopted January 2, 1945, and as amended November 15, 1946.”

The distinction between the Use Permit for off-street parking in a residential zone under § 409.4, on the one hand, and the “special exception,” on the other hand — the distinction on which the appellants largely build their present argument — was first made by the Court of Appeals in Marek v. Baltimore County Board of Appeals, 218 Md. 351, 146 A. 2d 875, in 1958. There, a requested permit for off-street parking was initially denied for what turned out to be an erroneous reason. The request was promptly resubmitted and was granted by the Board of Zoning Appeals and the grant was affirmed by the Circuit Court for Baltimore County. The protestants there claimed that under the provisions of § 500.12 of the BCZR, a request for a Special Exception, once denied, could not be entertained again until the expiration of 18 months. In the course of holding that § 500.12 was not a bar to the granting of the Use Permit for off-street parking, the Court of Appeals found, of necessity, that such a Use Permit was not a “Special Exception.” The Court reasoned, at 218 Md. 357:

“This then brings us to the question as to whether or not the petition filed in this case is a petition for a special exception from the use that can be made of land lying in a zone classified as R.6 Residential. We must conclude that this petition is not a request for a special exception. It is quite true that the zoning ordinance does provide that under certain circumstances and for certain purposes which are enumerated at length a different use may be made of the land than that which the zoning ordinance contemplates. Section 270 sets out this Schedule of Special Exceptions in detail and Sections 502 and 502.1 set forth the principles and conditions which shall govern the Zoning Commissioner and the Board.
Off-street parking is not mentioned among the many things which may be the subject of a special exception and the power to determine what situations shall be considered in that category is a legislative function, resting in this instance with the County Council of Baltimore County, and is not an administrative function of the Zoning Commissioner. The function of the Zoning Commissioner is limited to a determination under the existing factual situation if a special exception, one among those listed in the ordinance, is appropriate in any particular case.” (Emphasis supplied)

There was now established, at least in terms of surface appearance, a seemingly unbridgeable dichotomy between a “Special Use Permit” for off-street parking in a residential zone under § 409.4 of the BCZR and a “Special Exception” under §§ 500.12 and 502 of the BCZR. This was to become the appellants’ minor premise: A “Use Permit” is not a “Special Exception.” The major premise was established two years later with the passage by the Baltimore County Council of Bill No. 80, limiting for presently pertinent purposes the power of the Zoning. Commissioner to the granting of “Special Exceptions.” The predicate was now laid for the appellants’ present syllogism, which is:

The delegated authority is A is all B. to grant all “Special Exceptions.” (Sect. 22-23 BCZR)
To grant &. “Use Permit” is C is not B. not to grant a “Special Exception.” {Marek)
Therefore, to grant a “Use .'. C is not A. Permit” is not the delegated authority.

The validity of the syllogism appears irrefutable. Nonetheless, we reject it as invalid. In terms of formal logic, it fails because there is no universal middle term (although there appears to be). The reason is that, although the words are the same, the term “Special Exception” does not mean the same thing in the major premise that it means in the minor premise. The term “B” has shifted its meaning in the course of the syllogism.

It is clear to us that the Court of Appeals in Marek was distinguishing the Species “Special Use Permit for Off-Street Parking” (governed by the rules of § 409.4) from the Species “Special Exceptions” (meaning the remainder of the special exceptions which are controlled by the rules of §§ 502 and 500.12, establishing the 18-month limitation for repetitioning purposes). The court was by no means indicating that the Species “Special Use Permit for Off-Street Parking” was no longer a part of the Genus “Special Exceptions” (encompassing all conditional uses no matter what their labels, what their separate identities and what their special regulatory provisions might be). Indeed, no such problem was before it and it had no occasion even to consider the question. The distinction was only between two species within the same genus and not between a species and its parent genus. Indeed, we think the Court of Appeals was still giving the term its specific meaning when in Jacobs v. County Board of Appeals for Baltimore County, 234 Md. 242, 198 A. 2d 900, it said in 1964, at 234 Md. 248:

“[W]e held in Marek, supra, that the Use Permits granted under Section 409.4 did not constitute ‘special exceptions’. . .”

Quite clearly, the Court of Appeals did not mean to exempt the granting of Use Permits for off-street parking from the delegated powers of the Zoning Commissioner and County Board of Appeals, for in the Jacobs case itself, the Court affirmed the actions of the Zoning Commissioner and the County Board of Appeals in granting just such a Use Permit for off-street parking. That was four years after the Baltimore County Council had rearticulated the delegation of power, granting only, for presently pertinent purposes, the power to make “Special Exceptions.” In Bloede v. MacNabb, 231 Md. 452, 190 A. 2d 780, the Court of Appeals had also dealt with the granting of a “Use Permit” for off-street parking in a residential area by the Baltimore County Board of Appeals. It there said explicitly, at 231 Md. 454:

“Section 409.4 a of the Baltimore County zoning regulations authorizes the zoning commissioner to issue a permit for the use of land in a residential zone for a parking area. . . .”

Because as used in §§ 502 and 500.12 and by the Court of Appeals in Marek and Jacobs, the term “Special Exceptions” is given only its narrower and more specific meaning, the premises for the appellants’ syllogism become:

A is all B.

C is not some-B.

From those premises, it cannot be established validly whether “C” (the granting of a “Use Permit” for off-street parking) is or is not “A” (within the power designated to the Zoning Commissioner).

To have established this much is to refute the logic of the appellants, but not yet to establish the counter-logic of the appellee.

For that purpose, we must look to the meaning of the term “B” as employed in the major premise, which is to say we must look to the meaning of the phrase “Special Exceptions” as used by the Baltimore County Council in repealing and reenacting the grant of authority to the Zoning Commissioner and the County Board of Appeals in 1960.

It is clear to us that County Council Bill No. 80 of 1960 was intended not to rewrite the substance of the Baltimore County zoning law but only to consolidate, reorganize and edit the planning and zoning provisions that as of that time, after some 15 years of growth, were scattered throughout the Baltimore County Code. Indeed, § 4 of Bill No. 80 itself provided that its short title would be “The 1960 Planning and Zoning Reorganization Bill.” (Emphasis supplied) Every indication is that the County Council fully intended the Zoning Commissioner and the County Board of Appeals to continue to enjoy and to exercise the same authority that had theretofore been theirs under the predecessor grant of authority. Bill No. 80 created Title 23 of the Baltimore County Code entitled “Planning, Zoning and Subdivision Control” and specifically provided in § 23-25 thereof:

“The zoning regulations adopted by Baltimore County on March 30, 1955, as amended on the effective date of this Act, are hereby declared to be in full force and effect provided, however, that in the case of any conflict between such regulations and the provisions of this Act, these provisions shall control.”

Above and beyond the short title, the title of Bill No. 80 confirms the intent of the County Council “to reorganize and consolidate the functions of planning, zoning and subdivision control in Baltimore County and to define the duties, powers, responsibilities, qualifications and manner of appointment. . .” of various zoning officials including the Zoning Commissioner. There is no indication in the title or the preamble that the Council sought to repeal any of the authority of the Zoning Commissioner to grant Use Permits for off-street parking. It is well established that legislative intent may be discerned by examining a statute’s title or preamble as well as its terms. Board of County Commissioners v. Colgan, 274 Md. 193, 200-201, 334 A. 2d 89; Mass Transit Adm. v. Balto. Co. Rev. Authority, 267 Md. 687, 695-696, 298 A. 2d 413; Shipley v. State, 201 Md. 96, 103, 93 A. 2d 67.

It is asserted by the appellee and conceded by the appellants that the settled usage in Baltimore County, even post-1960, is for the Zoning Commissioner to grant “Use Permits” for off-street parking in residential zones (or, as the case may be, to refuse the grant but in any event, to consider the question). Both Jacobs v. County Board of Appeals, supra, and Bloede v. MacNabb, supra, are evidence of this practice. Administrative interpretations contemporaneous with the passage of a statute have been considered strong evidence on the question of its best construction. Smith v. Higinbothom, 187 Md. 115, 48 A. 2d 754. We think it preeminently clear that the Baltimore County Council did not intend to erode the power of the Zoning Commissioner to continue to do those things which he had been doing since the advent of zoning regulations in that county. “When a word in a statute is not clear, the courts will seek the legislative intent in the language of the statute by considering the object to be accomplished and adopt the meaning which will harmonize therewith in carrying out the purpose of the statute.” Walker v. Montgomery County Council, 244 Md. 98, 102, 223 A. 2d 181; Height v. State, 225 Md. 251, 170 A. 2d 212; Powell v. State, 179 Md. 399, 401, 18 A. 2d 587.

We find further evidence of both the original legislative intent and the continued and settled usage in the county from the fact that, again post-1960, subsequent editions of the BCZR in 1963, in 1969 and in 1975 have continued to include § 409.4 which explicitly authorizes the Zoning Commissioner to grant “Use Permits” for off-street parking in residential zones. Pertinent here are the words of Smith v. Higinbothom, supra, at 187 Md. 132-133:

“. . . where the language of a statute is susceptible of two constructions, a long-continued and unvarying construction applied by administrative officials is strong persuasive influence in determining the judicial construction of the statute, and it should not be disregarded except for the strongest and most urgent reasons.”

See also Rogan v. B. & O. R.R. Co., 188 Md. 44, 53, 52 A. 2d 261; American-Stewart Distillery v. Stewart Distilling Co., 168 Md. 212, 177 A. 2d 473.

We are persuaded overwhelmingly that in the enabling act of 1960, the Baltimore County Council intended to give the phrase “Special Exceptions” its broad and generic meaning. It used it broadly even as the Court of Appeals had defined it in Heath v. Mayor and City Council, 187 Md. 296, 303, 49 A. 2d 799, 803, as:

“. . . a dispensation permissible where the Board of Zoning Appeals finds existing those facts and circumstances specified in the ordinance as sufficient to warrant a deviation from the general rule.”

In just such a sense did Judge Davidson define the term for this Court in Anderson v. Sawyer, 23 Md. App. 612, 617, 329 A. 2d 716, 720:

“The conditional use or special exception is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception is a valid zoning mechanism, that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption. The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan.” (Emphasis supplied)

It is beyond cavil that the granting of a “Use Permit” for off-street parking in a residential zone under the provisions of § 409.4 falls within this broad definition of “Special Exception.” The Species “Use Permit” is indisputably a member of the Genus “Special Exception.” It is also indisputably clear that the Baltimore County Council in 1960 used the term “Special Exception” in its broad and generic sense. With this new minor premise, the ultimate syllogism becomes:

The delegated authority is to grant all “Special Exceptions.” (Sect. 22-23 BCZR) A is all B.
To grant a “Use Permit” is to grant a “Special Exception.” C is some-B.
Therefore, to grant a “Use Permit” is the delegated authority. C is A.

Q. E.D.

This conclusion is irrefutably valid. The action of the Baltimore County Circuit Court affirming the decision of the County Board of Appeals affirming the decision of the Zoning Commissioner will, therefore, be and is hereby affirmed.

Judgment affirmed; costs to be paid by appellants.

      . The more exact residential zoning classification does not appear in the record.

      . The permit was issued subject to the following conditions:
      1. Compact screening, a minimum of six (6) feet in height, be constructed around the entire subject property, excluding entrances and exits, and that portion of the subject property which is immediately adjacent to the Overlea Hall catering establishment.
      2. Any lighting that is constructed on the subject property is to be a maximum of six (6) feet in height.
      8. Only ingress be afforded from the entrance on Overlea Avenue.

      . The People’s Counsel is appointed by the Baltimore County Executive and is charged with representing the public interest before the Zoning Commissioner, the County Board of Appeals, or the courts in any matter involving the Baltimore County Zoning Regulations. Baltimore County Charter § 524.1(b); Baltimore County Code (1968 ed., 1974-75 Cum.Supp.).

      . An appeal to the (Jounty Board of Appeals is authorized in Md. Anno. Code, Art. 25A § 5(u) (1975 Cum.Supp.) and § 501.2 of the BCZR.

      . To be more fully discussed hereinafter.

      . Appeals to the Circuit Court and then to the Court of Special Appeals are authorized by Md. Anno. Code, Art. 25A § 5 (u) and § 501,4 of the BCZR. See Levy v. Seven Slade, Inc., 234 Md. 145, 149, 198 A. 2d 267, 269 (1964).

      . We do not agree that § 502 need be complied with in order to obtain a use permit for off-street parking which is governed exclusively by § 409.4.


author: Davidson, J.,

text:
    ALFRED H. TUCKER v. CHARLOTTE L. TUCKER
    [No. 322,
    September Term, 1976.]

      Decided May 11, 1977.

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

      Roy B. Cowdrey, Jr., for appellant.

      Samuel Lyles Freeland for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 8 July 1968, in the Circuit Court for Talbot County, Judge Harry E. Clark entered a decree which granted the appellee, Charlotte L. Tucker (wife), an absolute divorce from the appellant, Alfred H. Tucker (husband), and awarded her custody of the parties’ two minor children. The decree further provided, in pertinent part, that the husband should provide child support and that he should “pay for all medical expenses incurred by the said Charlotte L. Tucker, either for her own use or for that of the minor children.” No appeal was filed.

On 15 April 1975, pursuant to Rule 625 a, the husband filed a “Motion to Revise Decree” alleging that that portion of the 1968 decree requiring him to pay medical expenses “was and is void and without legal force or effect and was entered by mistake of law.” On 7 May 1975, at a hearing held before Judge James A. Wise, he presented evidence to show that there had not been an agreement between the parties for his payment of medical expenses and argued that the court therefore lacked jurisdiction to require him to pay those expenses. In an opinion and order entered on 6 June 1975, the chancellor found that there was an agreement between the parties and explicitly determined that at the time it entered its 1968 decree, the court had jurisdiction to order the husband to pay medical expenses. He denied the husband’s motion for revision. No appeal was filed.

On 8 March 1976, Judge Clark held a hearing to determine whether the husband was in contempt of court for failure to make some of the medical payments. The husband defended in part on the ground that the 1968 decree was null and void and subject to collateral attack at any time because the court lacked jurisdiction to issue that part of its decree which required him to pay medical expenses. The chancellor sustained the wife’s objections to a line of questions asked for the purpose of establishing the court’s lack of jurisdiction at the time of the 1968 decree. He found that the question of the court’s jurisdiction at the time of the 1968 decree had been litigated and determined in the 1975 proceeding, and that under the doctrine of res judicata that issue could not be relitigated. The chancellor entered an order finding the husband to be in contempt of court, and, among other things, ordered the payment of arrearages. This appeal is from that order.

Here, as in the court below, the husband contends that the 1968 decree was null and void and subject to collateral attack at any time because the court lacked jurisdiction to issue that part of the decree which required him to pay medical expenses. Relying on Travelers Indemnity Co. v. Nationwide Construction Corp., and Thomas v. Hardisty, he maintains that the doctrine of res judicata is .not applicable to and does not bar relitigation of a jurisdictional question.

A judgment is void unless the court which renders it has jurisdiction over the parties or the property and the subject matter. A judgment which is void because of a lack of jurisdiction may be collaterally attacked at any time.

There are exceptions to this rule. If there has been a judicial determination that the court rendering a judgment has jurisdiction, the doctrine of res judicata applies and precludes a collateral attack upon that judgment. As stated in the Restatement of Judgments:

“5 j. Effect of ruling by the court as to its jurisdiction. Although a judgment would otherwise be void because of the lack of jurisdiction of the court over the parties or over the subject matter, and would therefore be open to collateral attack, yet if the court determines that it has jurisdiction, the parties may be precluded from collaterally attacking the judgment on the ground that the determination by the court of its jurisdiction is res judicata between them.
“10 d. Where jurisdiction in one action is determined in a subsequent action. The principle underlying the rule stated in this Section is applicable where the question of the jurisdiction of the court over the subject matter is determined not by the court which renders the judgment but by another court. Thus, if a judgment by default is rendered against a defendant for the payment of a sum of money, and in a subsequent action brought upon the judgment the defendant contends that the judgment was void for want of competency of the court, and it is determined that the judgment was valid, and judgment is given for the plaintiff, the defendant cannot thereafter collaterally attack the judgment rendered in the first action, since the validity of the judgment became res judicata by the decision in the second action.”

This exception has been recognized by the Court of Appeals. In Messall v. Merlands Club, Inc., that Court in dictum said:

“We might also point out that it seems to be well established that where the issue of jurisdiction is raised and determined in favor of the jurisdiction, the ensuing judgment on the merits is not open to later collateral attack on the jurisdictional issue, whether or not the determination therein was erroneous.”

We now hold that the principles of res judicata apply to a jurisdictional question when that question has actually been raised, litigated and determined in favor of jurisdiction. Applying these principles to the instant case produces a clear result.

This Court in Felger v. Nichols, discussed the doctrine of res judicata. There we said:

“In Maryland, the doctrine of res judicata, or estoppel by judgment, consists of two branches: direct estoppel by judgment, and collateral estoppel by judgment. The doctrine of direct estoppel by judgment establishes that in a subsequent action between\the same parties upon the same cause of action, claim or demand, or subject matter, a judgment rendered on the merits constitutes an absolute bar, not only as to all matters which were actually raised, litigated and determined in the former proceeding, but also as to all matters which could have been raised and litigated....
“The doctrine of collateral estoppel by judgment establishes that where a second action between the same parties is upon a different ‘cause of action,’ the judgment in the previous action operates as a bar only as to those matters actually litigated and determined in the original action and is not conclusive as to matters which might have been but were not litigated and determined in the previous action. Under this doctrine, as under the doctrine of direct estoppel, the matters actually determined in the previous proceeding may have been raised directly or as a matter of defense.” (Citations omitted.)

Under either the doctrine of direct or collateral estoppel, all matters actually raised, litigated and determined in the former proceedings constitute a bar in subsequent proceedings between the same parties.

Here, the record shows that the question of jurisdiction was raised, litigated and determined in a former proceeding. In support of his 1975 motion to revise the 1968 decree, the husband presented evidence to show that at the time of the 1968 proceeding there had not been an agreement between the parties for his payment of medical expenses. He argued that the court therefore lacked jurisdiction to require him to pay those expenses. The chancellor found that there was an agreement between the parties and that the court had jurisdiction to enter the 1968 decree. The question of the trial court’s jurisdiction having been raised, litigated and determined in favor of jurisdiction, the chancellor’s judgment denying the motion to revise the 1968 decree barred the jurisdictional question from subsequent relitigation in a suit between the same parties.

Judgment affirmed.

Costs to be paid by appellant.

      . 244 Md. 401, 224 A. 2d 285 (1966).

      . 217 Md. 523, 143 A. 2d 618 (1958).

      . Thomas, supra, 217 Md. at 536-37, 143 A. 2d at 625. See Bringe v. Collins, 274 Md. 338, 351, 335 A. 2d 670, 678 (1975); Long v. Long, 62 Md. 33, 62 (1884); Restatement of Judgments § 5 (1942).

      . § 5 j and § 10 d (1942).

      . 244 Md. 18, 36, 222 A. 2d 627, 637, cert. denied, 386 U. S. 1009 (1966).

      . The question of whether a judgment may be attacked collaterally when the issue of jurisdiction could have been but was not previously raised, litigated or decided is not before us and is not considered here.

      . 35 Md. App. 182, 183-84, 370 A. 2d 141, 142-43 (1977).