(123 Md. 283) ETCHISON v. MAYOR AND ALDERMEN OF FREDERICK CITY et al. (No. 31.) (Court of Appeals of Maryland. April 9, 1914.) does not work a deprivatioL without due process. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 807; Dec. Dig. § 292.*] Appeal from Circuit Court, Frederick 1. MUNICIPAL CORPORATIONS (§ 667*)-REGU- ward C. Peter, and Glenn H. Worthington, County, in Equity; Hammond Urner, EdLATION OF STREETS POWERS GRANT OF POWERS. Acts 1908, c. 560, authorizing the mayor and aldermen of Frederick City to regulate the use of sidewalks for use of signs, sign posts, awnings, etc., authorizes the mayor and aldermen to require an abutting owner whose awning was supported by posts to remove the posts. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1443, 1494–1496; Dec. Dig. § 667.*] 2. MUNICIPAL CORPORATIONS (§ 667*)-POWER OF COUNCIL. The power to regulate the use of sidewalks for signs, sign posts, awnings, etc., conferred upon the mayor and aldermen of Frederick City by Acts 1908, c. 560, is a reasonable one intended to preserve the highways in the condition most suitable for public use. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1443, 1494-1496; Dec. Dig. § 667.*] 3. MUNICIPAL CORPORATIONS (§ 667*) STREETS-RIGHT TO USE OF. [Ed. Note.-For other cases, see Municipal Corporations. Cent. Dig. §§ 1443, 1494-1496; Dec. Dig. § 667.*] 4. MUNICIPAL CORPORATIONS (§ 661*)-ORDINANCES-VALIDITY. The necessity, propriety, or wisdom of the exercise by a municipality of a grant of legislative power over the streets and sidewalks of a town must be left to the municipal authorities, and, if an ordinance passed in pursuance thereof does not impair some vested right or conflict with the Constitution, it must be upheld. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1432, 1434–1436; Dec. Dig. § 661.*] 5. CONSTITUTIONAL LAW (§ 208*)-MUNICIPAL CORPORATIONS (§ 667*)-CLASS LEGISLATION UNREASONABLE CLASSIFICATION ORDI NANCES. Judges. "To be officially reported." Bill by Marshall L. Etchison against the Mayor and Aldermen of Frederick City and Emory C. Crum, City Surveyor. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, PATTISON, STOCKBRIDGE, and CONSTABLE, JJ. George M. Brady, of Baltimore, and H. Dorsey Etchison, of Frederick (Maloy & Brady, of Baltimore, on the brief), for appellant. Leo Weinberg and Edward J. Smith, both of Frederick, for appellees. BRISCOE, J. By chapter 560 of the Acts of 1908, the General Assembly of Maryland conferred upon the mayor and aldermen of Frederick City certain powers and authority as to the control of its streets and highways, and among other things provided as follows: "To regulate the use of sidewalks for use of signs, sign-posts, awnings, posts, horse-troughs, telegraph posts, trolley poles, electric light poles, telegraph wires, electric light wires, and for any and all other purposes, and to prohibit the erection of any posts, poles, or wires and to compel the removal of any posts, poles or wires in, over or above any street, side-walk or highway." On the 1st day of August, 1913, the mayor and aldermen of Frederick, in pursuance of the power thus conferred by the act of 1908, passed an ordinance prohibiting the erection and providing for the removal of all hitching posts, sign posts, awning poles, and posts and poles of every description (except telegraph, telephone, electric light, and trolley poles, and ornamental lighting posts) on the pavements, within three feet of the curb lines, and prohibiting the tying of animals of the horse kind to any trees, tree boxes, telegraph, telephone, electric light, and trolley pole, and ornamental lighting posts, on Market street, between Clerk Place and Fifth street, and on Patrick street, between Court street and Middle alley, in Frederick City, Md., and providing a penalty for violation thereof. The ordinance is set out, in the record, marked Plaintiff's Exhibit No. 2, and provides, in addition to a fine and imprisonment for its violation or failure to comply with its terms, that, if the owner of the premises in front of which such poles or posts may stand shall fail to comply with the ordinance within 60 days after notice from the city engineer, they shall be removed by that officer at the owner's expense. The plaintiff is the owner of a business *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-11 tain and preserve the streets and highways of the city in the character of streets in such condition as may be most suitable for the public use. Lake Roland R. R. Co. v. Baltimore, 77 Md. 380, 26 Atl. 510, 20 L. R. A. 126. building situate on Market street, in Freder-able one, and was intended for the purpose ick City, within the designated limits pre- of enabling the mayor and aldermen to mainscribed by the ordinance, and maintains an awning built in and fastened to the front wall of the building, and supported at the sidewalk by three iron poles, about three inches in diameter, and about nine feet apart. The awning is on or about seventeen feet above the sidewalk, and is supported by these three iron posts, poles, or uprights. On the 19th of August, 1913, the plaintiff received from the city engineer of Frederick City a notice to remove these posts or poles as provided by the ordinance, and the plaintiff by this proceeding asks a court of equity by injunction to enjoin the defendants from removing the iron posts or uprights supporting the awnings, and from in any way enforcing the ordinance. The case was heard upon the bill of complaint, the defendants' motion to dissolve the preliminary injunction, which had been previously issued, and upon a demurrer to the bill. The defendants' demurrer to the bill of complaint was sustained, and the plaintiff's bill was dismissed by an order signed by a majority of the circuit court for Frederick county dated on the 13th of December, 1913, and it is from this order an appeal has been taken. It is objected, upon the part of the appellant: First, that the mayor and aldermen of Frederick City were not authorized by their charter to pass the ordinance in question, because the power to remove awning posts and poles was not specifically conferred by the act of 1908; second, that if they had the authority and power to do so, the ordinance is invalid because arbitrary, oppressive, unreasonable, and discriminative; third, that the ordinance and its enforcement would deprive the plaintiff and those similarly situated of their property without due process of law, and would deprive them of the equal protection of the law. [1] As to the first objection, we need only say that we think the ordinance is entirely within the legislative grant, which authorizes the mayor and aldermen of Frederick City to regulate the use of awnings, and to compel the removal of any poles or posts on any of the streets of the city. The language of the act of 1908, c. 560, it will be seen, is broad and comprehensive, and provides in terms that the mayor and aldermen of Frederick shall have power to provide by ordinance, among other things: "To regulate the use of sidewalks, for use of signs, sign posts, awnings, posts, * * and for any, and all other purposes, and to prohibit the erection of any posts, poles or wires, and to compel the 'removal of any posts, poles, or wires, in, over and above any street, side walk or highway." It is difficult to see what words the Legislature could have used that would have more explicitly and expressly conferred the power here in question upon the mayor and aldermen than the language used in the act itself. [2-6] The power as conferred was a reason In Brauer v. Refrigerating Co., 99 Md. 367,. 58 Atl. 21, 66 L. R. A. 403, 105 Am. St. Rep.. 304, this court said the cases upon the subject agree that the fundamental right to the enjoyment of the streets is that of the general public for passage over and along them. In the exercise of this right, persons employing vehicles àre primarily entitled to occupy the bed of the street, while pedestrians have a similar priority of claim upon the sidewalk. The owners of lots abutting on streets are permitted to encroach to a limited extent for the necessary transaction of their business upon this primary right of the public, provided they do not unreasonably interfere with its exercise. But it must always be borne in mind that the right of the public to employ the streets for purposes of travel and transportation is the paramount one, and that of the abutter to occupy them for other purposes is a permissive and subordinate one. We come now to section 2 of the ordinance itself, which contains the enactment here involved and assailed. It is urged with much earnestness that the ordinance is invalid because unreasonable, discriminative, arbitrary, and oppressive. While it is true the ordinance provides for the removal of "awning poles, and posts, and poles of every description" (except certain poles mentioned therein) erected on the pavements within three feet of the curb lines on the streets named therein, it nowhere appears that it in any way prohibits the use of awnings in front of these buildings unless supported by poles and posts. In other words, as stated by a majority of the court below, "so far as the effect upon the awnings is concerned, the ordinance amounts simply to a regulation of their construction, and not to a prohibition of their use." It may be stated as a general proposition sustained by all the authorities that the necessity, propriety, or wisdom of the exercise of a legislative grant or power such as this must be left to the municipal authorities, and, if an ordinance passed in pursuance thereof does not impair some vested right or conflict with some constitutional mandate, the court will not interfere to prevent its enforcement. As was said by Chief Justice Waite in Richmond Railroad Co. v. City of Richmond, 96 U. S. 521, 24 L. Ed. 734, it is not for us to determine in this case whether the power has been judiciously exercised. Our duty is at an end if we find that it exists. The judgment of the court below is final as to the reasonableness of the action of the council. In State v. City of Trenton, 68 N. J. Law, the case. All of the cases hold that a proper regulation of the use of property is not a taking of property within the meaning of the Constitution. 501, 53 Atl. 202, the Supreme Court of New disposition of the other questions raised in Jersey, in passing upon a somewhat similar case, held, where the ordinance is within the powers delegated in the charter, its reasonableness is presumed, and, unless the contrary is clearly shown, the court will not interfere. And to the same effect are the cases of Baltimore v. Clunet et al., 23 Md. 449; State v. Mott, 61 Md. 304, 48 Am. Rep. 105; Storck v. Baltimore City, 101 Md. 483, 61 Atl. 330; Gould v. Baltimore, 120 Md. 534, 87 Atl. 818; Church v. Baltimore, 6 Gill, 391, 48 Am. Dec. 540; Alexander v. Baltimore, 5 Gill, 384, 46 Am. Dec. 630; Lacy v. Oskaloosa, 143 Iowa, 704, 121 N. W. 542, 31 L. R. A. (N. S.) 853; Olympia v. Mann, 1 Wash. 389, 25 Pac. 337, 12 L. R. A. 150; New Orleans v. New Orleans, 164 U. S. 471, 17 Sup. Ct. 161, 41 L. Ed. 518; Dillon on Municipal Corporations, $ 600. The contention that the ordinance is unreasonable and arbitrary in respect to the classification proposed, we think, is without force, and is fully answered by the cases cit ed herein. In Richmond R. R. Co. v. City of Richmond, supra, the Supreme Court said: "All laws should be general in their operation; but all places within the same city do not necessarily require the same local regulation. It is the special duties of the city authorities to make the necessary discriminations in this particular." The recent cases of Luman v. Hitchen Bros., 90 Md. 14, 44 Atl. 1051, 46 L. R. A. 393, and Clark v. Harford Agricultural Ass'n, 118 Md. 620, 85 Atl. 503, hold that, if the classifications under the act operate alike upon all persons and property under the same circumstances and conditions, and bear a reasonable and just relation to the act in respect to which the classification is proposed, the act will not be declared invalid, because it subjects persons coming within the classifications to burdens or duties not imposed upon individuals outside of the classes. The objection that the ordinance in this case is invalid because it is discriminative, and applies only to designated streets, cannot be sustained. It will be seen that the same contention and argument was made and urged against the validity of somewhat similar ordinances in the cases of State v. City of Trenton, supra, and in Lacy v. Oskaloosa, supra. The court in both of those cases overruled the contention there made, and held the ordi nances to be valid, and not to be an arbitrary or unjust discrimination, or an oppressive interference with the business and property rights of the owner. Storck v. Baltimore City, 101 Md. 476, 61 Atl. 330. [7] The further contention that the ordinance and its enforcement would deprive the appellant and those similarly situated of their property without due process of law, and of the equal protection of the law, we think, have been sufficiently answered in the As we find no reason to hold the ordinance invalid in this case, the order of the circuit court for Frederick county passed on the 13th day of December, 1913, will be affirmed. Order affirmed, with costs. (123 Md. 225) WARBURTON v. DAVIS et al. (No. 14.) (Court of Appeals of Maryland. April 8, 1914. (Court of Appeals of Maryland. April 8, 1914. Rehearing Denied May 14, 1914.) 1. PARTNERSHIP (§ 317*) - ACCOUNTING RIGHT TO ACCOUNTING. Where it is manifest that the party asking for a partnership accounting has no real cause of complaint, and that no good purpose could be accomplished by directing an account, it will not be ordered. Cent. Dig. § 733; Dec. Dig. § 317.*] 2. EXECUTORS AND ADMINISTRATORS (§ 437*)— ACTIONS-ACCOUNTING-LACHES. An action by the administrator of a deceased partner for an accounting by the surviving partner, not brought until more than 15 years after the death of the intestate, during which time no demand for an accounting had been made on the surviving partner, who had submitted an account showing the condition of the firm, which had been accepted by the parties in interest, some of whom gave a receipt, was barred by laches and limitations. and Administrators, Cent. Dig. §§ 1729-1761, [Ed. Note.-For other cases, see Executors 1764; Dec. Dig. § 437.*] Appeal from Circuit Court, Cecil County; Philemon B. Hopper and Wm. H. Adkins, Judges. "To be officially reported." Bill by William T. Warburton, as surviving administrator of the estate of James A. Davis, deceased, against Anthony S. Davis and Kate T. Davis. Decree for defendants dismissing the bill, and plaintiff appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. Robert P. Shick, of Philadelphia, Pa., and George Whitelock, of Baltimore (Henry A. Warburton, of Elkton, on the brief), for appellant. William S. Evans and James F. Evans, both of Elkton, for appellees. BRISCOE, J. The bill of complaint in this case was filed by the appellant, as surviving administrator of one James A. Davis, late of Cecil county, against Anthony S. Davis, the surviving partner of James A. Davis & Son, and against Kate T. Davis, the wife of Anthony S., for an accounting of the partnership property and estate of James A. Davis and Anthony S. Davis, partners, trad *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes The part-longing to the partnership estate; third, that the defendant be decreed to pay over unto the appellant all sums of money arising out of the proceeds of any sale or sales made of the partnership property or in any way belonging to the estate of the deceased; and, fourth, a prayer for general relief. ing as James A. Davis & Son. The defendants filed separate answers to the bill. The defendant Kate T. Davis in her answer denies holding any real estate in this state which was conveyed by her husband, as surviving partner, and avers, if she holds or owns any outside of the state, this court has no jurisdiction to inquire into it, and that the administrator has no interest therein, as it is her individual property. The bill was filed on the 29th of September, 1910, and in substance avers: That James A. Davis was a member of the firm of James A. Davis and Anthony S. Davis, partners, trading as James A. Davis & Son, and, at the time of the death of James A. The answer of the defendant Anthony S. Davis as a member of the firm, he was seis- Davis was filed on the 30th of December, 1910, ed and possessed of real and personal prop- wherein he sets forth the property and eserty located in the states of Maryland, Penn- tate of James A. Davis & Son that came insylvania, Virginia, North Carolina, and else- to his hands as surviving partner, in order where. That the defendant as surviving to close up the partnership affairs on the 11th partner, after the death of James A. Davis, day of November, 1894, and also a statement sold the real and personal property belong- of accounts, as surviving partner, showing ing to the firm and located in the states, and the manner of his dealing with the partnerconverted the same into cash or made oth-ship property and effects. He filed with the er disposition of it. That the surviving partner has caused some of the real estate to be sold, and had the same conveyed to his wife, Kate T. Davis. The bill further avers: That, from the sums of money realized from the partnership, there is a large sum due and owing from the surviving partner, belonging to the estate, which should be paid to the surviving administrator to be distributed under the directions of the orphans' court of Cecil county. That the appellant has been unable to get a statement from the surviving partner as to the partnership estate, or what interest the surviving partner had in the partnership firm at the time of the death of James A. Davis. The bill then avers that the surviving partner has not, from the date of the death of the appellant's intestate, to the present time, made any account to the appellant, as administrator of the deceased, of the money and estate belonging to him in the partnership, but has controlled the same as his own property. The prayer of the bill is the usual one for an accounting, and is to the effect: First, that the defendant Anthony S. Davis may on oath answer the bill and set forth in detail all property of every kind, real and personal, wheresoever located, belonging to the firm of James A. Davis & Son at the time of the death of the appellant's intestate, and to account for all of his interests in the partnership property from the date of his death up to the time of filing the bill; second, that the defendant Kate T. Davis answer under oath the bill and discover and set forth in detail all sums of money received by her from the partnership assets of the firm, or any property she now holds, real or personal, connected with and formerly be answer a detailed statement marked Exhibit A. S. D. No. 1, which he avers contains a correct and just account of the facts therein set forth. This statement covers over 50 pages of the record and will be found set out from page 14 to 71 of the record. The answer avers that the partnership property was ample to pay all the creditors in full except himself, and that there is still a large sum due him for his one-half interest in the partnership firm. It further avers that there is no money in his hands belonging to the separate personal estate of the plaintiff's intestate; that Minnie J. Harner, a daughter, and her husband, on the 6th of July, 1906, executed and delivered to him a release for her interest in the estate, and that James C. Davis, a son, on the 28th of March, 1896, gave him a receipt for all his distributive share in the partnership estate. The answer further avers that no demand has ever been made by the plaintiff upon the defendant to pay over to him any money belonging to the separate estate of James A. Davis, but, on the contrary, he has accounted to and paid over to him, from time to time, moneys collected by him as attorney, due him as surviving partner; that he was the defendant's attorney, as well as administrator of James A. Davis, and either knew, or ought to have known, the status of the estate at the time of the death of the senior partner. The answer then denies all allegations of improper conduct in the administration of the property of the firm or in the conduct of the business thereof. There were exceptions filed to these answers, and on the 3d day of April, 1911, after a hearing, the exceptions to the answer of Kate T. Davis were overruled and the bill dismissed as to her. The second, third, fourth, fifth, sixth, eighth, and ninth exceptions to the answer of Anthony S. Davis were sustained, and the first and seventh were overruled. On the 4th of September, 1911, the defendant, in pursuance of the order of court, filed an additional and supplemental answer, accompanied by a supplementary report of certified accountants and 27 exhibits setting out in detail a full statement of the account of the partnership effects and estate as surviving partner. Subsequently a large mass of testimony was taken by each side, and the case was heard upon a motion by the plaintiff to refer the case to the auditor to state an account, and, from an order of court refusing the plaintiff's motion and dismissing his bill, this appeal has been taken. As we concur in the conclusion reached by the court below in its determination of this case, it will not be necessary to discuss all the questions raised on the voluminous record now before us or presented in the argument at the hearing. [1] The court below held that, under the facts and circumstances as disclosed by the proof, no good purpose or end could be accomplished by ordering an account, and that, even if the plaintiff ever had any real cause of complaint or right to relief in a court of equity, it would be barred by the lapse of time. In McKaig v. Hebb, 42 Md. 227, this court said it is no doubt the general rule, when a partnership is alleged and admitted, to order an account, as a matter of course, unless the right of the plaintiff to relief is barred by lapse of time. But where it manifestly appears from the proof that the party asking the interposition of the court has no real cause of complaint, and that no good purpose or end can be accomplished by directing an account to be taken, it ought not to be ordered. The points of analogy between that case and this is somewhat obvious. In McKaig's Case the court said that the fact that the parties did not contemplate any further account of the partnership affairs was strengthened when we consider that more than eight years elapsed after the dissolution before the bill was filed. [2] In the present case it appears that more than 15 years elapsed after the death of the senior partner before this bill was filed, and it is now on or about 20 years since his death. The evidence shows that on or about the 1st day of December, 1894, all of the heirs at law and representatives of the deceased partner, their counsel, and the plaintiff here met after the death of the senior partner, when and where an account was stated and submitted showing the condition of the firm and accepted by the parties in interest. Since that date, all of the creditors of the firm have been paid by the surviving partner except the defendant Anthony S. Davis, who holds a large claim against the partnership's estate. No demand has ever been made, during the length of time stated, upon the surviving partner for an account of the partnership affairs, other than what has been stated, and it appears that a release has been executed by Mrs. Harner and husband, and a receipt by James C. Davis to the defendant, for their interest in the estate. But it is insisted, upon the part of the appellant, that the appellee is not entitled to the benefit of the doctrine of laches or staleness of claim because not specially set up by demurrer or in the answer and was not raised until the hearing. In Syester v. Brewer, 27 Md. 319, laches and lapse of time were held to be a full bar to the appellant's recovery. In that case the court said it was contended that the defendants in their answer had not relied upon this defense, and could not avail themselves of it at the hearing. But we are of opinion that the court itself, in its own discretion, may refuse to grant relief after a limited period, even though the statute is not pleaded and the bill is not demurred to. Lewin on Trusts, 617. on Trusts, 617. Laches and lapse of time are as effectual as the plea of limitations, and they are analogously applied in equity. 2 Story's Equity, § 1520; Battaile v. Fisher, 36 Miss. 32; Wickliffe v. Lexington, 11 B. Mon. (Ky.) 161. What will constitute such laches and lapse of time as will bar the right of parties to recover on a claim purely equitable all the authorities say must depend upon the particular facts and circumstances of each case. Hanson v. Worthington et al., 12 Md. 441. Syester's Case, supra, was cited and approved by this court in McCoy v. Poor, 56 Md. 204, Haugh v. Maulsby, 68 Md. 428, 14 Atl. 65, and Kelso v. Stigar, 75 Md. 399, 24 Atl. 18, and cited in 16 Cyc. 177. In Preston v. Horwitz, 85 Md. 164, 36 Atl. 710, it is said the policy of the law is to give quiet and repose to titles, and courts of justice ought not to countenance laches or long delays on the part of claimants. As was said by Judge Alvey in Wilhelm v. Caylor, 32 Md. 151, that courts of equity in such cases act upon its own inherent doctrine of discouraging, for the peace of society, stale demands, by refusing to interfere in favor of a party guilty of laches or unreasonable acquiescence in the assertion of an adverse claim. There are numerous other authorities to the same effect with those cited, and they are amply sufficient to dispose of this case, upon this ground alone. Phelps' Equity, § 262; 16 Cyc. 177. But apart from the doctrine of laches and lapse of time being a complete bar to the appellant's right to an account in this case, we think the plaintiff has failed to make out a case, upon the merits, to entitle him to the relief asked by his bill. It is therefore not |