author: Davidson, J.,

text:
    WILLIAM S. BALDERSTON v. YVONNE A. BALDERSTON et al.
    [No. 1375,
    September Term, 1977.]

      Decided July 19, 1978.

    The cause was argued before Thompson, Davidson and Melvin, JJ.
    William S. Balderston in proper person.

      D. Warren Donohue, with whom were Trimm, Donohue, McDanald, Willis & McGuckian on the brief, for appellees.
   Davidson, J.,

delivered the opinion of the Court.

In 1969, the appellant, William S. Balderston (husband), and the appellee, Yvonne A. Balderston (wife), then married, purchased a home at 11 Hilltop Road. On 6 December 1973, the husband and wife signed an agreement which provided in pertinent part:

“That he agrees to give possession of the home of the parties presently held as tenants by the entirety, and known as 11 Hilltop Road, Silver Spring, Maryland, to the wife, with right of privacy and control of the premises, until the youngest child reaches the age of eighteen (18) years or in the event of a divorce between the parties, until the wife shall remarry, whichever event first occurs. Upon the happening of either event or at any time prior to the happening of either event, upon the request of the wife, the husband agrees to join with the wife in listing the property for sale at the best price obtainable, to execute, acknowledge and deliver all papers required in the sale of same, and, after reimbursement to the wife, the cost of any capital improvements made to the property by the wife after the date of this Agreement, to divide the net proceeds realized from the sale equally between the parties.”
“That the wife promises and agrees to join with the husband in listing for sale at the best price obtainable, at such time as the youngest child of the parties reaches the age of eighteen (18) years or in the event of a divorce between the parties, at such time as she should remarry, whichever event first occurs, to execute, acknowledge and deliver all papers required in the sale of same, and, after reimbursement to her of the cost of any capital improvements she made to the property after the date of this Agreement, to divide the net proceeds realized from the sale equally between the parties.”

On 19 May 1975, the Balderstons were divorced. The wife continues to live in the home. It is undisputed that the wife has hot remarried and that the youngest child has not yet become 18 years of age.

On 22 February 1977, in the Circuit Court for Montgomery County, the husband filed a bill of complaint against the wife and the Permanent Mortgage Company requesting, among other things, that the Court order the sale of the home, now held by the husband and wife as tenants in common. The wife, relying upon the above quoted sections of the agreement, filed a motion for summary judgment. On 30 November 1977, Judge Ralph G. Shure granted the wife’s motion and dismissed the husband’s bill of complaint. On 16 December 1977, the husband filed a motion for rehearing, which Judge Shure refused to grant. The husband appealed.

In Maryland, a tenant in common has a common law right to compel partition in kind. In addition, under statute and rules, a tenant in common has a right not only to compel partition in kind, but also, under some circumstances, to compel a sale in lieu of partition. Maryland Real Property Code, § 14-107 (a) provides in pertinent part:

“(a) Decree of partition. — A circuit court may decree a partition of any property, either legal or equitable, on the bill or petition of any ... tenant in common____If it appears that the property cannot be divided without loss or injury to the parties interested, the court may decree its sale and divide the money resulting from the sale among the parties according to their respective rights.”

Neither the Court of Appeals nor this Court has considered the question of whether a party to an agreement in which he relinquished his right to compel a sale of property may thereafter compel such a sale. Courts in other jurisdictions, variously relying on principles of estoppel and waiver or specific performance, have held that a person can, by contract, relinquish for a time his right to compel a partition or sale. The underlying rationale for such holdings, based upon equitable principles applicable in partition matters, is that it would be unfair to permit a party who has expressly or impliedly agreed not to seek partition thereafter to compel partition.

Here, the husband, relying upon Gunter v. Gunter,; contends that the trial court erred in dismissing his bill of complaint because Maryland law does not allow a contract or divorce decree to act as a bar to partition or sale in lieu of partition. We do not agree.

In Gunter, a divorce decree rather than an agreement between the parties required the husband to pay the wife a weekly sum as alimony and, in addition, to pay all taxes and ground rent on the home the husband and wife had occupied before the divorce. After the divorce, the husband filed a bill of complaint requesting a sale in lieu of partition of the home which the wife had continued to occupy. The chancellor dismissed the bill of complaint because, among other reasons, he thought that the divorce decree “certainly implies that the [wife] shall have the right to live in the house." The Court of Appeals reversed, stating:

“In the case at bar we do not find from the terms of the divorce decree that the court intended to adjudicate the property rights of the parties, or to do more than accept the then occupancy of the property by the wife, free of rent, as one of the elements to consider in fixing the weekly payments for her support____But even assuming that the decree may be given a limited effect in these respects, it was clearly not intended to be final, and we do not think the acceptance of the award in this form by the husband can be held to impose any barrier to a subsequent proceeding by him for partition.”

Here, unlike Gunter, there was an express agreement between the parties in which the husband relinquished his right to compel a sale of the property until their youngest child reached 18 or the wife remarried. Gunter is inapposite.

Maryland Ann. Code, art. 16, § 28 provides in pertinent part:

“Any deed or agreement made between husband and wife respecting alimony, support, maintenance, property rights, or personal rights, or any settlement made in lieu of alimony, support, maintenance, property rights or personal rights shall be valid, binding and enforceable to every intent and purpose____”

In addition, the statutory right of a tenant in common to compel a sale in lieu of partition is qualified by Maryland Real Property Code, § 1-104, which provides in pertinent part:

“Any person may vary, by agreement, the effect of any provision in this article----”

Here the agreement made between the parties respecting partition and saléis valid and enforceable. Accordingly, the husband may not obtain a court-ordered sale of the property.

We have carefully considered the husband’s remaining contentions and we find them to be without merit. We shall affirm.

Judgment affirmed.

Costs to be paid by appellant.

      . Baltimore Gas & Electric Co. v. Bowers, 221 Md. 337, 343, 157 A. 2d 610, 613 (1960); Hardy v. Leager, 212 Md. 565, 569, 130 A. 2d 737, 740 (1957).

      . Md. Real Prop. Code Ann. § 14-107 (1974).

      . Md. Rules, ch. 1100, Subtitle BJ.

      . Baltimore Gas & Electric Co. v. Bowers, 221 Md. at 343, 157 A. 2d at 613; Boyd v. Boyd, 32 Md. App. 411, 415-16, 361 A. 2d 146, 149 (1976).

      . See, e.g., Nazzisi v. Nazzisi, 21 Cal. Rptr. 396, 397-98 (Dist. Ct. App. 1962); Condrey v. Condrey, 92 So. 2d 423, 426 (Fla. 1957); Ortmann v. Kraemer, 378 P. 2d 26, 30 (Kan. 1963); Terrible v. Terrible, 534 P. 2d 919, 921 (Nev. 1975); Hepler v. Burnham, 210 S.E.2d 509, 512-13 (N.C. Ct. App. 1975).

      . See, e.g., Mack v. Mack, 286 S.W.2d 385, 388-89 (St.Louis Mo. Ct. App. 1956); Orologio v. Orologio, 372 N.Y.S.2d 15, 16 (Sup. Ct., Saratoga County 1975).

      . See Annot., 37 A.L.R.3d 962 (1971).

      . Dugan v. Mayor of Baltimore, 70 Md. 1, 8,16 A. 501, 604 (1889); Boyd v. Boyd, 32 Md. App. at 419, 361 A. 2d at 151.

      . 187 Md. 228, 49 A. 2d 454 (1946).

      . Id. at 231, 49 A. 2d at 456.

      . Id at 232-33, 49 A. 2d at 457.

      . Md. Ann. Code, art. 16, § 28 (1977 Cum. Supp.).

      . Md. Real Prop. Code Ann., § 1-104 (1974).

      . See also 1978 Laws of Maryland ch. 794, applicable to cases filed after 1 January 1979, which may empower a chancellor to prevent partition of a family home for a maximum period of three years from the date of a divorce by awarding sole possession and use to the spouse awarded custody of the children.


source: Caselaw Access Project

license: Public Domain

text:
    BOARD OF COUNTY COMMISSIONERS OF ST. MARY’S COUNTY v. ROBERT OLIVER GUYTHER et al.
    [No. 799,
    September Term, 1977.]

      Decided September 6, 1978.

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

      Joseph Ernest Bell, II, County Attorney, for appellant.

      Oliver B. Guyther for appellees.
   Davidson, J.,

delivered the opinion of the Court.

The appellant, the Board of County Commissioners of St. Mary’s County (Board) is composed of five members. On 8 September 1976, the Board met. All five members were present. The minutes of that meeting show that when an application, filed by the appellees Robert Oliver Guyther and another (owner), to reclassify a 29 acre parcel of land from the AR-2 zone (Agricultural-Residential) to the C-2 zone (Highway Commercial) was to be considered, two members, Commissioners Millison and McKay, excused themselves because of a conflict of interest. The three remaining members, Commissioners Dean, Jarboe and Parlett, held a hearing on the application. On 21 October 1976, these three Commissioners voted to deny the application.

The owner appealed. On 15 July 1977, in the Circuit Court for St. Mary’s County, Judge Jacob S. Levin entered an order which reversed the decision of the Board and directed it to grant the requested reclassification.

On 3 August 1977, the Board again met. Four of the Board’s five members, Commissioners McKay, Millison, Dean and Parlett, were present. The minutes of this meeting show that when the matter of the Circuit Court’s order directing reclassification was to be considered, Commissioner Millison excused himself from the meeting “because of possible conflict of interest.” Commissioner McKay “offered to provide the applicant with a letter stating that he would have no business interest in the property in question for the remainder of his term as County Commissioner if it would help his cause.” Commissioner Parlett made a motion to appeal the Circuit Court’s decision. Commissioner Dean seconded the motion, and he and Commissioner Parlett voted in its favor. Commissioner McKay abstained. The facts that on 8 September 1976 Commissioner McKay disqualified himself because of a conflict of interest from participation in the hearing on the application for rezoning, that on 21 October 1976 he did not vote on that application, and that his statement on 3 August 1977 did not clearly indicate that his conflict of interest had terminated, establish that his reason for abstaining from the vote to appeal was his disqualification because of conflict of interest.

In this Court the owner filed a motion to dismiss the appeal. He contends that because Commissioner McKay had disqualified himself because of a conflict of interest, he was incompetent to act even though he was physically present when the vote to appeal was taken. As a result, he asserts, there were then only two members of the Board competent to act and that number was insufficient to constitute a quorum. He maintains that, in the absence of a quorum, the Board’s determination to appeal was invalid. He concludes that the appeal was not taken pursuant to law and should be dismissed.

The question of whether a quorum must be constituted of persons competent to act was considered by the Court of Appeals in Hagerstown Furniture Co. v. Baker. There, a corporation had five directors, two of whom had died and one of whom was disqualified from acting because he had been appointed receiver of the corporation. The three living directors met and executed a bond. The Court of Appeals held that there had not been a properly constituted quorum and that the action of the directors was invalid. This case establishes that a person present but incompetent to act because of disqualification cannot serve as a constituent part of a quorum.

This rule, applied in Maryland to private corporations, has generally been applied elsewhere to both municipal and private corporations. We shall apply it here.

The Code of Public Local Laws of St. Mary’s County, § 16 (a), provides that a majority of the five members of the Board constitutes “a quorum for the transaction of business.” At common law and under most statutes requiring a quorum for “the transaction of business,” the passage of any motion in the absence of a quorum is void.

Here, two members of a five member Board were incompetent to act because they disqualified themselves on the ground of conflict of interest. Had the three members of the Board competent to vote on the question of whether to appeal been present, there would have been a quorum. Because only two competent members were present, however, a quorum did not exist. In the absence of a quorum, the vote on the motion to appeal was void. Accordingly, we shall dismiss the appeal.

Appeal dismissed.

Costs to be paid by appellant.

      . St. Mary’s County, Md. Code of Public Local Laws, § 16 (a) (1965,1974 Supp.).

      . 158 Md. 574, 149 A. 556 (1930).

      . 158 Md. at 585-86, 149 A. at 561-62.

      . See also Valle v. Pressman, 229 Md. 591, 605, 185 A. 2d 368, 377 (1962) (concurring opinion).

      . But see City of Alamo Heights v. Gerety, 264 S.W.2d 778, 779-80 (Tex. Civ. App. 1954).

      . 4 E. McQuillin, The Law of Municipal Corporations § 13.35a at 533 (3d ed. rev. vol. 1968); 2 J. Dillon, Commentaries on the Law of Municipal Corporations §§ 521, 524 (5th ed. 1911).

      . 2 W. Fletcher, Cyclopedia of the Law of Private Corporations § 426 at 280-81 (rev. vol. 1969).

      . Zeiler v. Central Ry., 84 Md. 304, 35 A. 932 (1896), relied upon bv the Board, is inapposite. In that case, the Court of Appeals neither considered nor decided the question, raised here, of whether a person present but incompetent to act can serve as a constituent part of a quorum.

      . St. Mary’s County, Md. Code of Public Local Laws § 16 (a) (1965,1974 Supp.).

      . Gemeny v. Prince George’s County, 264 Md. 85, 88-89, 285 A. 2d 602, 604 (1972); Murdoch v. Strange, 99 Md. 89, 110, 57 A. 628, 630 (1904).

      . Md. Rule 1035 b 1.


author: Mason, J.,

text:
    FRANCIS JOHN MARTIN v. STATE OF MARYLAND
    [No. 1080,
    September Term, 1977.]

      Decided September 6, 1978.

      The cause was submitted on briefs to Mason, Couch and MACD ANIEL, JJ.
    Submitted by Howard L. Cardin, Assigned Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General, Gilbert H Robinette, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Irma S. Raker, Assistant State’s Attorney for Montgomery County, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The Appellant, Francis John Martin, was convicted by a jury in the Circuit Court for Montgomery County of kidnapping, sex offense in the first degree, unauthorized use of a motor vehicle, and use of a hand gun in the commission of a felony. He was sentenced to a total of 55 years to run consecutive to a life sentence he was serving in the State of Delaware.

The principal issue we are concerned with in this appeal is whether the trial judge erred, i.e., abused his discretion in permitting evidence of the Appellant’s escape from the Delaware State Prison to be admitted into evidence.

On 21 August 1976 Martin and three other persons escaped from the Delaware State Prison. Around 10:15 A.M., on 24 August 1976, two men forced their way into the automobile of the victim, an 18 year old college student who was at the Twinbrook Shopping Center in Montgomery County. They said “be quiet we are not going to hurt you. We just need your car to get out of this area.... We need a place to drop you off so you cannot get to a phone for 15 minutes.” One of the men drove the car while the other held a gun on the victim. After driving around for sometime looking for an isolated area, they finally drove down a dirt road and stopped. At this point the driver put his arm around the victim and said “come on let’s take your shirt off.” The man with the gun then got out of the car and stood by the back door. The driver pulled the victim into the back seat, removed her clothes and forced her to engage in oral and anal sex. Afterwards the victim’s hands and feet were tied and the two men fled in her car. After freeing herself, the victim called the police and gave them a description of the two men. Later, upon being shown an array of pictures, she positively identified the picture of Martin as the driver of the car and the picture of William Hayes as the man with the gun.

Martin was charged by indictment with several offenses relating to this incident. Prior to trial he filed a motion to limit the scope of the evidence by excluding all reference to the fact that he was an escapee from the Delaware State Prison at the time the alleged offenses were committed.

At the hearing on this motion the Court inquired:

“THE COURT: What does the State think about the motion in limine?
“MRS. RAKER: We are opposed, I think that evidence is absolutely admissible. That there is an abundance of case law in the State of Maryland and in the legal treatises that indicate that evidence of another crime is admissible. If it falls within one of the five exceptions to the general rule, such evidence is then admissible. I would offer to the Court that the fact that the defendant and his three accomplices were escapees, the motives to why they intended to steal the automobile, which is the larceny charge in the indictment and evidence of their intent to get out of town out of necessity of getting out of town in a hurry, I think, is intrinsically tied up to the facts within the indictment and of the charges. And I would suggest that is properly admissible in the case, and I intend to offer it.”

Martin’s motion in limine was denied.

In opening argument to the jury the prosecution, over Appellant’s objection, made the following reference to Appellant’s escape.

“MRS. RAKER: This defendant, Francis Martin, escaped from a Delaware correctional institution — from a Delaware prison in Smyrna, Delaware. Francis Martin, the defendant, William Hayes, and a man named Julian, and another one named Francis left the Delaware correctional institution in Smyrna, Delaware and came down into the State of Maryland and was [sic] essentially on the run.”
“You will hear from William Hayes. William Hayes was serving two life sentences in Delaware for the crime of murder at the time he escaped. He pleaded guilty. He was charged for his participation in this incident and has pleaded guilty for his involvement in this incident.”

At trial Martin was identified by the victim as one of her abductors and the man who sexually assaulted her. Martin was also identified by a friend of the victim who saw him and Hayes abduct her from the parking lot at the Twinbrook Shopping Center. In addition, Hayes not only testified regarding Martin’s involvement in the kidnapping of and sexual assault on the victim, he also testified that he, Martin and two other men had escaped from prison on 21 August 1976. The Appellant did not take the stand or offer any evidence on his behalf.

The law of this state is fully in accord with the universally accepted rule “that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible." Ross v. State, 276 Md. 664, 669 (1976). Neither can the “prosecution show that the defendant has been arrested, indicted, convicted or imprisoned for another crime.” 1 C. Torcia, Wharton's Criminal Evidence, § 240 at 533,13th edition 1972. Nor can the prosecution show that the defendant is an escaped prisoner.

The established exceptions to the exclusionary rule were enunciated in Ross, supra, at 669 and 670:

“There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Additional exceptions have also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial; and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. C. McCormick, Evidence § 190 (2d ed. 1972).” (citations omitted)

It is the position of the State that evidence of Appellant’s escape was admissible because it was relevant to establish his motive for stealing the victim’s car. We do not agree.

This is not á case where the larceny of the automobile was contemporaneous with the escape. Here Martin escaped from a prison in the State of Delaware on 21 August 1976 while the larceny of the vehicle occurred on 24 August 1976 in Montgomery County, Maryland. The larceny of the vehicle was too remote in time and distance from the escape; at best the degree of causality between the two incidents was de minimus. Moreover, Martin’s motive for taking the vehicle is not an issue in the case, nor was it an element of any crime for which he was charged. When Appellant abducted the victim and took her car, his motive was clear and unequivocal. He specifically stated “we just need your car to get out of this area.” What we said in Jones v. State, 38 Md. App. 432, 438 (1978) is particularly applicable here:

“When appellant entered the three establishments, armed with a gun demanding money, his motive and intent were fairly obvious, and the admissibility of the other offenses with respect thereto was unnecessary and irrelevant to any contested issue in the case....”
“Although evidence of other crimes is admissible to show intent and motive, it was not needed nor admissible for such purpose in this case. Appellant’s conduct was unequivocal and his intent and motive could be inferred from his conduct alone.” (citations omitted)

Even if we assume, which we do not, that evidence of Appellant’s escape was admissible because it was relevant to the issue of motive, one of the certified exceptions to the other crime rule, this evidence still would not be admissible. In Cross v. State, 282 Md. 468 (1978) the Court of Appeals said:

“Though the evidence may fall within one or more of the exceptions, the trial judge still possesses discretion as to whether it should be received. In the judicious determination of this issue he should carefully weigh the necessity for and probativeness of the evidence concerning the collateral criminal act against the untoward prejudice which is likely to be the consequence of its admission. In some cases, this may require that evidence of the criminal actions of the defendant be totally excluded; in others, admission of portions or all of the evidence of the defendant’s specific criminal actions may be permissible.” (citations omitted)

In Jones, supra, at 437-38 we recited with approval the instructive comments of Dean McCormick:

“[I]f the judges, trial and appellate, content themselves with merely determining whether the particular evidence of other crimes does or does not fit in one of the approved classes, they may lose sight of the underlying policy of protecting the accused against unfair prejudice.The policy may evapr orate through the interstices of the classification.
“Accordingly, some of the wiser opinions (especially recent ones) recognize that the problem is not merely one of pigeonholing but one of balancing, on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.”

C. McCormick, Evidence, § 190 at 453 (2d ed. 1972) (citations omitted).

In applying the above tests by balancing “actual need for other crimes evidence in light of the issues and the other evidence available to the prosecution,” Id., the impropriety of admitting the evidence of Martin’s escape is clear. This evidence served no legitimate need of the prosecution. Martin did not take the stand or offer any evidence on his behalf. The prosecution was informed prior to trial that no evidence would be presented by the defense and was, therefore, aware that the motive for the larceny of the victim’s vehicle would not be a contested issue in the case. Furthermore, as we said before, motive was not an essential element of any offense charged. Therefore, it was not necessary for the prosecution to establish motive in order to prove its case.

Although the misuse of the other crimes evidence is clear, we do not think reversal on this ground is required or appropriate in this case. Here Martin was postively identified by the victim as one of her kidnappers and the person who sexually assaulted her. He was also identified by a friend of the victim as one of her abductors. In addition Hayes, a co-participant in the crime, testified that he and Martin abducted the victim and that Martin sexually assaulted her. The testimony of these three witnesses was not controverted. Under the facts in this case proof of Martin’s guilt was so overwhelming we are persuaded that the error did not contribute to the guilty verdict and was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 659 (1976).

The further argument of the Appellant is that the photographic array shown to the witnesses was impermissibly suggestive because the pictures “either depicted persons without facial hair with the exception of the Appellant, or in the alternative his facial hair was much more predominant than that of any of the others.” This contention is without merit and can be disposed of briefly. The trial court examined the 10 photographs in question and found that five of them depicted men with facial hair. Upon our constitutionally mandated, independent review we do not find the photographic array to be impermissibly suggestive. Godwin v. State, 38 Md. App. 716, 725 (1978). Nor do we find the in-court identification of Martin a product of the earlier extra judicial identification.

Judgments affirmed.

Costs to be paid by appellant.

      . Before Martin was tried Hayes pled guilty to kidnapping and was sentenced to a term of 25 years.

      . There are differing viewpoints as to what is meant by the word motive and how it differs from intent. See W. LaFave and A. Scott, Criminal Law § 29 (1972).
      Wigmore says “It would be more conducive to clearness of thought if the word ‘motive’, so misleading in its popular associations, could be abandoned altogether in discussing evidential questions.” 1 Wigmore, Evidence, § 117 at 558 (3d ed. 1940).
      “When it is said that evidence going to show motive is admissible, it is meant that the circumstantial evidence is admissible that would appear to cause or produce the emotion that would in turn provoke or incite the commission of the criminal offense.” Rodriguez v. State, 486 S.W.2d 355 (1972).


author: Morton, J.,

text:
    MICHELE THOMPSON v. MICHAEL THOMPSON
    [No. 1216,
    September Term, 1977.]

      Decided September 6, 1978.

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

      Samuel Paavola and John C. Eidleman for appellant.

      George J. Chartrand, with whom were Legum, Cochran & Chartrand, P.A. on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

In this appeal it is contended that the two year statute of limitations provision to establish the paternity of a child, contained in Maryland Code, art. 16, § 66 (e), violates the equal protection and due process clauses of the fourteenth amendment to the Constitution of the United States. Since we find that this provision is not violative of those constitutional clauses, we shall affirm the holding of the Circuit Court for Anne Arundel County that appellant’s paternity suit against appellee is barred by limitation.

The record indicates that on May 10,1969, Veronica Mason gave birth to Michele Thompson. Ms. Mason took no legal action to establish the paternity of her illegitimate child or to obtain support for the child from the putative father, Michael Thompson, appellee, until December 1, 1971, when she filed a paternity petition on behalf of her daughter in the Circuit Court for Anne Arundel County. Appellee did not file an answer to the petition until August 29,1977, when he alleged that the action was barred by the two year statute of limitations set forth in Maryland Code, art. 16, § 66 (e). Separate counsel was appointed by the court on October 11, 1977, to represent the infant, Michele Thompson, who is the appellant in this appeal. The matter was thereafter heard by Judge E. Mackall Childs who, on October 13, 1977, held that the paternity action was barred by the applicable statute of limitations.

Section 66 (e) reads in full:

“(e) Proceedings to establish paternity under the subtitle ‘Paternity Proceedings’ and to charge the putative father of an illegitimate child or children with their support and maintenance shall be commenced during the pregnancy of the mother thereof or within two (2) years after the birth of such child or children; except that if the putative father of such child or children has acknowledged in writing the paternity of the child or children or has made payment or otherwise provided for the support and maintenance of the child or children, it is sufficient if the proceedings are commenced within two (2) years of the date of such acknowledgement or the last such payment or provision; provided, that the institution of proceedings under the former Article 12 of this Code, title ‘Bastardy and Fornication,’ prior to June 1, 1963, shall suspend the further running of the period of limitations provided for herein.”

Appellant does not contest the fact that she failed to abide by the requirements of § 66 (e). Rather, she contends that § 66 (e) is unconstitutional for several reasons: (1) It requires illegitimate children, such as appellant, to commence a paternity action within two years of their birth thereby “denying... [them] fundamental rights enjoyed by other children...,” in violation of their right to equal protection under the law. as embodied in the fourteenth amendment to the United States Constitution. (2) It “is an overly restrictive means of achieving a state goal of preventing fraudulent claims ...,” in contravention of the equal protection and due process clauses of the fourteenth amendment. (3) It “forecloses the right of an illegitimate child to establish her paternity unless action is commenced within two years of her birth thus allowing another individual to waive the child’s fundamental right, and thus raising an irrebuttable presumption that her claim is fraudulent or stale, and thus refusing her notice or an opportunity to be heard... in violation of the Due Process Clause of the Fourteenth Amendment----”

Addressing appellant’s first contention, that § 66 (e) violated her right to equal protection by requiring her to commence paternity and support actions within two years of birth, which is not required of legitimate children, we observe that the Supreme Court, through a series of cases over the last ten years, has slowly departed from the traditional two-tier equal protection analysis where the alleged constitutional infringement concerns illegitimate children. The initial cases, Levy v. Louisiana, 391 U. S. 68 (1968), and Glona v. American Guarantee & Liability Insurance Co., 391 U. S. 78 (1968), serve as little, if any, precedential value since the Court concluded that the statutes there contested could not be justified regardless of what standard — strict scrutiny, rational basis or otherwise — was utilized in assessing their constitutional viability. The Court merely asserted the obvious “premise that illegitimate children are not ‘nonpersons’ that “[t]hey are humans, live, and have their being”; that “[tjhey are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment”, and, accordingly, are entitled to at least minimal protection thereunder. Levy v. Louisiana, supra, at 70.

Beginning with Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972), a third standard of analysis, inferable but not specifically articulated therein, began to evolve when the statutory classification under attack would deprive illegitimate children of rights otherwise accorded legitimate children. This standard, which falls somewhere between the traditional strict scrutiny and rational basis tests, was expressed at page 178 of the opinion, as follows:

“The essential inquiry in all the foregoing cases is, however, inevitably a dual one: What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?”

The Court recently had occasion to reiterate this middle standard of constitutional evaluation in Trimble v. Gordon, 430 U. S. 762, 767 (1977), when it declared:

“Appellants urge us to hold that classifications based on illegitimacy are ‘suspect,’ so that any justifications must survive ‘strict scrutiny.’ We considered and rejected a similar argument last Term in Mathews v. Lucas, 427 U. S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 751 (1976). *** Despite the • conclusion that classifications based on illegitimacy fall in a ‘realm of less than strictest scrutiny,’ Lucas also establishes that the scrutiny ‘is not a toothless one,’ id., at 510,96 S.Ct. at 2764, a proposition clearly demonstrated by our previous decisions in this area.”

Appellant asserts that under the principles enunciated in Weber, Mathews and Trimble, § 66 (e) does not effectively promote a legitimate state interest. She contends that “[tjhough the state does have an interest in encouraging the prompt and orderly resolution of litigation, a limitation cannot be applied wholesale with the effect of totally excluding an entire class of claims.”

We cannot subscribe to appellant’s position. Statutes of limitations, although they may arbitrarily deprive some otherwisé rightful claimants of access to the courts, have long been recognized as a valid exercise of a state’s right to regulate the functioning of its judicial system. They are “designed primarily to assure fairness to defendants on the theory that claims, asserted after evidence is gone, memories have faded, and witnesses disappeared, are so stale as to be unjust.” Bertonazzi v. Hillman, Adm'x, 241 Md. 361, 367(1966).

Indeed, the Supreme Court recognized in Weber, supra, at 174, that “arbitrary lines” may be drawn by the states to “facilitate potentially difficult problems of proof.” Moreover, in Gomez v. Perez, 409 U. S. 535, 538 (1973), the Court “recognize[d] the lurking problems with respect to proof of paternity.” The Court added the caveat that “[t]hose problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.” Id.

That the General Assembly of Maryland did not purposefully seek to discriminate against illegitimate children becomes self-evident when the limitations provision of § 66 (e) is read in conjunction with the declaration in § 66A: “The General Assembly declares its conviction that the State has a duty to ameliorate the deprived social and economic status of children born out of wedlock and that the policies and procedures as contained in this subtitle and in § 66 of this article relative to establishing the paternity of such children, determining who shall have their custody or guardianship and who shall be charged with their maintenance and support are socially necessary and desirable, having as their threefold purpose (1) the promotion of the general welfare and best interests of such children by securing to them, as near as practical, the same right to support, care and education as legitimate children; (2) the imposition upon both parents of such children the basic obligations and responsibilities of parenthood and (3) the simplification of procedures.”

We believe that § 66 (e) was enacted by the legislature in a sincere endeavor to avoid the pitfalls inherent in establishing paternity and to facilitate the resolution of the difficult problems of proof in paternity cases. We see no distinction in this regard between § 66 (e) and the various statutes of limitations covering other areas of substantive law.

In State v. Rawlings, 38 Md. App. 479 (1978), this Court specifically addressed and affirmed the raison d’etre of a statute of limitations with regard to the institution of a paternity action. At pages 484-85, we said:

“[T]he determination of the paternity of illegitimate children presents special problems. Although the situation has improved, proof of paternity remains an inexact science. See Shaw and Kass, Illegitimacy, Child Support, and Paternity Testing, 13 Houston L. Rev. 41, 47 (1975). Once an individual is accused of being the father óf the child he may have a difficult time rebutting the charge. The legislature recognized the problem and after weighing the various interests involved provided for uniform procedures for determining disputed paternity coupled with a set statute of limitations to protect the rights of the alleged father. The State admitted below it was trying to circumvent these procedures to avoid being confronted with the two year limitation provision contained in Art. 16,. § 66 (e). This we cannot allow because while it is reasonable to remove the effect of two year limitations when there has been a clear confession of paternity, to do so otherwise is to put an alleged father in an impossible position.” (Footnote omitted.)

We decline, here, to recede from the foregoing analysis and, accordingly, conclude that § 66 (e) does, indeed, promote a legitimate state interest.

Under the second prong of the Weber, Mathews, Trimble analysis, we must examine what, if any, fundamental personal rights might be endangered by the two year limitation provision of § 66 (e). Appellant argues that § 66 (e) will deprive her of several “ ‘fundamental’ and ‘sensitive’ personal rights of the type the court sought to protect in Weber, ” to wit, the right to paternal support, the right to establish the identity of her father and the right to inheritance. Again we must disagree with appellant’s contention.

In San Antonio School District v. Rodriguez, 411 U, S. 1 (1973), the petitioners attacked the Texas system of financing public education on the premise that it denied them equal protection under the law. They asserted that the right to education is fundamental and therefore guaranteed by the United States Constitution. The Supreme Court, speaking through Mr. Justice Powell, however, rejected this proposition. At pages 33-35 of the opinion, the Court stated:

“It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. * * * *
Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation.”

In Dandridge v. Williams, 397 U. S. 471, 485 (1970), the Court, while explicitly recognizing that the “administration of public welfare assistance ... involves the most basic economic needs of impoverished human beings,” nonetheless concluded that the importance of welfare benefits to the poor did not create a fundamental right, in the constitutional sense, and therefore did not require the state to justify its statute by showing some compelling state interest.

Similarly, in Lindsey v. Normet, 405 U. S. 56 (1972), the Court refused to hold that the constitution guaranteed the right to adequate housing. “We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease without the payment of rent or otherwise contrary to the terms of the relevant agreement. Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions.” 405 U. S. at 74.

Additionally, we look to the holding of the Supreme Court in Labine v. Vincent, 401 U. S. 532 (1971), that the right to regulate intestate succession is a matter left to the discretion of the states and, concomitantly, refused to find that the right of an illegitimate child to receive property through intestate succession is a fundamental right guaranteed by the United States Constitution.

In light of the foregoing decisions of the Supreme Court, we have no compunction in concluding that appellant was not deprived of any constitutional fundamental right by virtue of § 66 (e). While it may be that § 66 (e) will result in a deprivation of appellant's right to paternal support, to inheritance and to establish the identity of her father, these are not rights explicitly or implicitly guaranteed by the constitution. See, e.g., Griswold v. Connecticut, 381 U. S. 479 (1965).

Since we conclude that the limitation provision of § 66 (e) promotes a legitimate state interest and, at the same time, does not invade any fundamental personal rights of appellant, in a constitutional sense, we have no hesitancy in concluding that appellant was not denied equal protection by the statutory requirement that paternity and support actions must be commenced within two years of birth. Accord, State ex rel Krupke v. Witkowski, 256 N.W.2d 216 (Iowa 1977); Cessna v. Montgomery, 63 Ill. 2d 71, 344 N.E.2d 447 (1976).

We turn next to the contention that § 66 (e) is violative of both the equal protection and due process clauses of the fourteenth amendment because “less restrictive means are available for achieving the state goal'' of preventing fraudulent and stale claims. When such is the case, argues appellant, the state is constitutionally mandated to pursue the less restrictive alternative. See Shelton v. Tucker, 364 U. S. 479 (1960). Appellant proffers, as a less restrictive alternative, that “[t]he use of improved blood testing techniques coupled with traditional burden of proof will satisfy the purposes the state advances by imposing the statute of limitations” and, at the same time, avoid the “artificial” preclusion of some valid cases.

Specifically, appellant argues that a falsely accused man will be excluded by modern testing methods in approximately 93 to 99 percent of paternity cases and, concomitantly, “that a man not excluded after extensive testing is overwhelmingly likely to be the father of the child in question.” See Shaw and Kass, Illegitimacy, Child Support, and Paternity Testing, 13 Houston L. Rev. 41 (1975); Joint AMA-ABA Guidelines: Present Status of Serologic Testing, Vol. X, Family Law Quarterly, 247 (1976); Schacter, Hsu & Bias, HLA and Other Genetic Markers in Disputed Paternity: A Report of 50 Cases, Vol. IX, Supp. 1, Transplantation Proceedings 233 (1977), from the Division of Medical Genetics, The Johns Hopkins University, Baltimore, Maryland.

We have carefully reviewed the scientific data and conclusions reached in the studies submitted by appellant and agree that medical technology is, indeed, making progress in the science* of blood testing. Perhaps our technology will eventually devise a virtually perfect test for determining one’s paternity. We are not convinced, however, that day is at hand. State v. Rawlings, supra, at 484. Until it arrives, we do not feel that we are constitutionally required, under the less restrictive means theory, to strike down the statute of limitations provision in § 66 (e). There are simply still too many uncertainties in the available blood testing techniques for us to override judicially the mandate of the legislature. Rather, we believe that the adoption of blood testing in the stead of a fixed statute of limitations is a matter presently to remain in the wisdom of the legislature.

Finally, we find no merit in appellant’s contention that the two year statute of limitations violates her right to due process under the fourteenth amendment because it allows her right to paternal support to terminate before she has any real opportunity to assert it. Appellant posits that permitting a child’s mother to institute paternity proceedings in behalf of her offspring does not thereby satisfy the requirements of due process because the mother’s short term interests, viz., continuing fondness for the father or her reluctance publicly to reveal her indiscretion, may conflict with the child’s long term interests of support and the establishment of paternity. There is no denying that this possibility exists. In our opinion, however, the Maryland General Assembly could reasonably conclude that the decision whether to institute a paternity action is in the child’s best interest, in contrast to the mother’s, vests with the mother. Certainly, we feel that it is reasonable for the legislature to conclude that this policy decision, when coupled with the state’s legitimate interest in preventing stale or fraudulent claims, on balance, outweighs the potential harm to illegitimate children who may have their right to paternal support forfeited by the mother's inaction. We also observe that the failure to bring a paternity suit within two years forecloses only the right to support from the alleged natural father. The child, however, will not be left without a means of support. The natural mother is still bound, under fear of criminal prosecution, to support her child, Maryland Code, art. 27, § 88 (b) (1), and, if necessary, the child will be eligible to receive support from public funds. Accordingly, we hold that the two year statute of limitations provided in § 66 (e) does not violate the due process clause of the fourteenth amendment to the United States Constitution.

Judgment affirmed; costs to be paid by appellant.

      . A blood test was given to the parties on June 22,1976, which indicated that appellee could not be excluded as the father of Michele.

      .
      “[AMENDMENT XIV]
      Section 1.
      [Citizenship Rights Not to Be Abridged by States]
      All persons bom or naturalized in the United States, ana subject to the jurisdiction thereof, are citizens of the United States ana of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

      . See, e.g., Com. Law Art. § 2-725, breach of contract (four years); Com. Law Art. § 11-207, prosecution for violation of Maryland Antitrust Act (three years); Cts. & Jud. Pro. Art. § 5-101, general tort limitation (three years); Cts. & Jud. Proc. Art. § 5-102, specialties (twelve years); Cts. & Jud. Pro. Art. § 5-103, adverse possession (twenty years); Cts. & Jud. Pro. Art. § 5-105, assault,- battery, ubel and slander (one year); Cts. & Jud. Pro. Art. § 5-106, prosecution of misdemeanor (one year).

      . But see, e.g, Shapiro v. Thompson, 394 U. S. 618 (1969), where the Court noted that the right to travel freely among the states is implicitly guaranteed by the constitution.

      . In affirming the constitutionality of 8 66 (e) we hold only that we find no infirmity in that portion of the statute which requires one to commence an action within two years of birth to establish paternity. We express no opinion as to the constitutionality of the latter portion of the statute which requires one to commence an action for support within two years of an acknowledgment of paternity, if applicable, or the date of the last support payment, since in this case the crux of the matter was the question rel non of paternity itself and no prior support payments have been made.