existing in sections 658-660 of article 4 of the Local Code, except that the general law included other municipal corporations in the saving clause contained in the last section. The general law was amended into the form it now presents in the Code by chapter 525 of the Acts of 1892, while the local law was re-enacted by chapter 123 of the Acts of 1898, which revised the charter of Baltimore city and recodified the miscellaneous statutes relating to that locality. Prior to the adoption of the Codes of 1888, there was no local legislation on this subject, except Acts 1826, c. 219, to which we will presently refer, and those codifications adopted without change the provisions of sections 6, 7, and 8 of article 56 of the Code of Public General Laws of 1860 as amended by Acts 1865, c. 56, and Acts 1870, c. 250. The details of these intermediate amendments need not be stated. The provisions of the Code of 1860 were based upon Acts 1798, c. 113, by which such licenses were originally imposed, as modified by Acts 1824, c. 64, and Acts 1826, c. 219. The act of 1798 authorized the county clerk to issue the license and directed the proceeds to be applied to county uses. The cities of Annapolis, Georgetown, Baltimore, and "the precincts of Baltimore" were excepted from the operation of this statute. In the act of 1824 there was no such exception, but there was a saving clause in favor of the right of the corporations of Baltimore, Annapolis, Frederick, and the commissioners of the town of Easton or of any other incorporated town to impose a further tax upon billiard tables. This act increased the license from $50 to $100, and directed that the money realized from this source be paid by the clerk to the treasurers, respectively, of the Western and Eastern Shores. At this period Baltimore city formed part of the territory of Baltimore county, but, a city court having been created by Acts 1816, c. 193, provision was made that "the requisitions of the Act of December Session 1824, c. 64, as they relate to the granting of licenses for permission to keep billiard tables in the said city, shall be and the same are hereby transferred to the city court of Baltimore, and that the clerk of the said city court shall be and he is hereby empowered and authorized to grant a license to such person or persons as may apply for permission to keep a billiard table, for which license there shall be paid the sum of one hundred dollars for the use of the state, and one dollar to the said clerk for his own use." 1826, c. 219.

Acts

In each of the acts mentioned there was a fine prescribed for the keeping of billiard tables without licenses. In the act of 1798, the amount was $150, one half to be paid to the informer and the other half to the county; while in the acts of 1824 and 1826 the amount was inceased to $500, of which one-half was to go to the informer and one

made to the history of the legislation involved in the present controversy will be useful as reflecting upon the question we are now to determine.

[1] The indictment charges a failure to obtain a license from the state. It is hence argued on behalf of the appellant that this accusation is necessarily predicated on the general statute, and that it cannot be supported under the local law, which, it is contended, contemplates the issuance of licenses by the city of Baltimore. It is only upon this theory that the question as to whether the general law is operative in Baltimore city becomes important. If both are intended to provide for licensing by the state, the conduct charged in the indictment is "contrary to the form of the act of Assembly" under the local, even though not under the general, statute. It is apparent, therefore, that the primary and perhaps the sole and controlling inquiry is whether the provisions we have quoted from the Local Code, under the title "Baltimore City," have lost. the essential purpose of their original enactment by reason of their incorporation in that body of laws. In all of the legislation from which the Code provisions in regard to these licenses were derived it is perfectly clear that they were intended to be issued by and for the benefit of the state. Except for the codification of the laws there could be no possible ground for the suggestion that such licenses when issued within the limits of the city should be treated as being granted by the municipality. The act of 1898 did not make these provisions a part of the charter of Baltimore city. In fact, they are kept separate and distinct in that act from the legislation under the subdivision entitled "charter," which operates as a grant of municipal powers. They retain at the present time the place they were given in the local Code of 1888 as a part of the miscellaneous laws relating to this governmental division of the state. If, therefore, the city is now entitled to issue the licenses thus prescribed and to receive the revenue they produce, it is not because the authority for that purpose has been expressly delegated by the Legislature, but merely because the statute providing for the licenses, as an exercise of the state's prerogative, has been codified both as a local law for Baltimore city and as a general law for the state at large. We can have no hesitation in holding that the codification has not had such an effect.

There is nothing whatever in the terms of the act itself to indicate a legislative intent to exempt the keepers of billiard tables in Baltimore city from the necessity of obtain ing a state license, but the contrary design is clearly apparent from the whole course of the legislation we have discussed, as well as from certain significant features of the existing law. The fines recovered for the violation of the act are directed to be divided

(116 Md. 307)

CUMMINGS et al. v. WILDMAN. (Court of Appeals of Maryland. June 24, 1911.) 1. TRUSTS (§ 161*)-TRUSTEES-BONDS.

Code Pub. Gen. Laws 1888, art. 16, § 205, as amended by Acts 1892, c. 241, providing that every trustee to whom any estate shall be con veyed for the benefit of creditors or to be sold for any purpose shall file with the clerk of the court in which the instrument creating the trust may be recorded a bond, and no title shall pass to any trustee until such bond shall be filed and approved, and no sale made by any trustee without such bond shall be valid, applies to a conveyance to trustees to sell, lease, or incumber land, and the trustees never having filed such bond received no title, and a conveyance by them is inoperative.

[Ed. Note. For other cases, see Trusts, Dec. Dig. § 161.*]

2 CONSTITUTIONAL LAW (§ 70*)- JUDICIAL POWER-RESTRICTION OF STATUTE-CON

CESS OF LAW.

Code Pub. Gen. Laws 1888, art. 16, § 205, as amended by Acts 1892, c. 241, requiring trustees to sell to file a bond before any title passes to them, is not in conflict with Const. Amend. U. S. 14, or Declaration of Rights, art. 23, prohibiting the deprivation of property without due process of law.

[Ed. Note.-For other cases, see Constitutiona! Law, Dec. Dig. § 278.*]

Appeal from Circuit Court, Prince George's County; Fillmore Beall, Judge.

Suit by Horace S. Cummings and another against Joseph E. Wildman. From a decree for defendant, plaintiffs appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, PATTISON, URNER, and STOCK

BRIDGE, JJ.

either of them), apply to the deed from Richard Wainwright to Augustus Burgdorff and Frederick W. Pratt, trustees, and the sale made thereunder?

(2) Under the said contract of sale and purchase, is the plaintiffs' title to the piece of land therein described such as the defendant should take?

The court below held that the sale was null and void, and that the plaintiffs acquired no title to the property thereunder, and directed that the plaintiffs refund to the defendant the deposit of $25.

turn are these: Richard F. Wainwright by The facts upon which the decision must his deed dated August 15, 1891, duly executed, acknowledged, and delivered by him to the grantees therein on said day, and by them recorded among the land records of Prince George's county, Md., on March 1, 1900, in consideration of $51,350 paid to him by the said grantees, "granted, bargained and sold unto Augustus Burgdorff and Frederick W. Pratt, the survivor of them, his heirs and assigns forever," certain tracts of land therein described, situate partly in the District of Columbia and partly in Prince George's county, Md., "in and upon the following trusts and for no other use or purpose whatsoever, that is to say: First: To hold the same for the sole use and benefit of the persons who have contributed, and in the proportion contributed by each, to the purchase of the said land and premises, as tenants in common, and not as joint tenants, and their heirs and assigns, until the said land and premises shall be sold as hereinafter provided. [The persons who have contributed to the purchase are named in the deed.] Second: To subdivide the land, or any portion thereof, into lots, streets and alleys, in the discretion of the parties of the second part or the sur

BRISCOE, J. This is an appeal from a decree of the circuit court for Prince George's county passed on the 30th day of March, 1911, upon a special case stated in accordance with rules Nos. 47 and 48 of the equity rules for the regulation of pleading and practice of the courts of equity in this state, and now sections 197 and 198 of article 16 of the Code of 1904.

[1] The questions stated and raised before the court below relate to the construction of certain title deeds, and the validity of the contract of sale and purchase between the plaintiffs and defendant, and were presented for decision by the following questions, set out in the record:

(1) Did section 205 of article 16 of the Code of Public General Laws of Maryland of 1888, and as amended by Act 1892, c. 241, and section 209 of the said article (or

cumber the land and premises, the whole or any part thereof, upon such terms and conditions, in such manner and quality and quantity of estate and by such forms of instruments, as the parties of the second part, or the survivor of them, in their or his discretion, may deem most advantageous to the persons beneficially interested in the land and premises, and to convey the same by good and proper conveyance, either in fee simple or by deed of trust, mortgage or otherwise and without any liability on the part of the purchaser or purchasers, mortgagee or mortgagees, trustee or trustees, or any person whomsoever, to see to the application of the purchase, trust, mortgage or other money."

The trustees took possession of the land upon the delivery of the deed to themthat is to say, on August 15, 1891-and continuously held possession of the same until February 9, 1900, when they undertook to sell

and convey, in fee simple, all the tract of land, subject to liens thereon then amounting to $35,000 for $10 and the satisfaction of the liens, to Horace S. Cummings, one of the plaintiffs herein, by their deed in the usual and legal form for such purpose, dated February 9, 1900, duly executed and acknowledged by them, and delivered by them to Cummings, and by him recorded among the land records on March 1, 1900, and Cummings thereupon took possession of all of the tracts of land. The trustees did not file any bond with the clerk of the circuit court for Prince George's county; and their sale to Horace S. Cummings was neither reported to nor finally ratified by the court. Thereafter Horace S. Cummings undertook to sell and convey a one-half undivided interest in fee simple in and to all of the tracts of land for $10 and other valuable considerations to Arthur E. Randle, one of the plaintiffs herein, by his deed in the usual and legal form for such purpose, dated March 7, 1900, and duly executed and acknowledged by him, and delivered by him to the said Randle, and by him recorded among the said land records on September 8, 1902. On January 2, 1911, the plaintiffs Horace S. Cummings and Arthur E. Randle agreed to sell a part of the lands, the part located in Prince George's county, Md., to Joseph E. Wildman, the defendant herein, and the defendant agreed to buy said part by a written contract of sale which is in the following words and figures, viz.: "This writing, made this second day of January, 1911, witnesseth: That the undersigned, Horace S. Cummings and Arthur E. Randle, both of Washington city, in the District of Columbia, have agreed and do hereby agree to sell to Joseph E. Wildman, of Prince George's county, Maryland, and the said Joseph E. Wildman has agreed and does hereby agree to buy from the said Cummings and Randle, all that piece of land, being a part of 'Blue Plains' situate in Oxon Hill district, of Prince George's county, Maryland, described as follows: Beginning at a stone on Oxon creek, and with said creek (1) south 9° 30' west 12 perches; (2) north 77° west 31 perches to the mouth of Oxon branch; (3) north 15° 16′ west 19.72 perches to the line of the District of Columbia and with said line (4) north 50° 9 perches to a stone, thence in a straight line to the beginning, containing 4.14 acres, more or less, for the price of two hundred dollars, of which twenty-five dollars has been paid by the said Wildman to the said Cummings and Randle as a deposit to be applied as part payment of the said purchase money, upon the following terms: Cash within thirty days from this date, otherwise deposit to be forfeited; and the title to be good, or no sale and deposit to be refunded." On January 31, 1911, Joseph E. Wildman, defendant herein, by his letter of the same date, notified the plaintiffs that the title to the piece of land sold to him was not good,

611

and that he would not accept the same; and demanded the return of his deposit for the following reasons:

"(1) Because Augustus Burgdorff and Frederick W. Pratt, trustees, under deed from Richard F. Wainwright, dated August 15, 1891, and recorded among the land records of Prince George's county, Md., in Liber J. B. No. 10, folio 55, and under whom you claim, have never filed a bond, as such trustees, with the clerk of said court, as is required by section 205 of article 16 of the Code of Public General Laws of 1888, as amended by the Act of 1892, c. 241.

"(2) Because they have never reported their sale to Horace S. Cummings of the said tract of land, of which my purchase is a part, to the circuit court for Prince George's county, as is required by section 209 of the said article.

"(3) Because the said sale to Horace S. Cummings has never been finally ratified by the said court, as is required by the said section 209."

Upon this state of facts, it is contended upon the part of the appellants: First. That section 205 of article 16 of the Code of 1888, as amended by Acts 1892, c. 241, does not apply to the deed here in question, but only applies to a technical conveyance in trust for the benefit of creditors-that is, to an assignment of all of a debtor's property, in trust, for the benefit of all his creditors— and that the words, "or to be sold for any other purpose," following the words "for the benefit of creditors," relates only to technical conveyances and sales thereunder. Second. That, if section 205 of article 16 of the Code does embrace a deed of this character, then, so far as it affects this deed, the section is unconstitutional and void, and violates article 23 of the Declaration of Rights of this state, and section 1 of the fourteenth amendment to the Constitution of the United States. It will be seen that section 205 of article 16 of the Code of 1888 was repealed and re-enacted with amendments by chapter 241 of the Acts of 1892, but did not change that section of the Code as applicable to this case. The deeds were all executed since the Code of 1888, and prior to March 27, 1900, when the section was re-enacted by chapter 114 of the Acts of 1900, and now sections 221 and 222 of article 16 of the Code of 1904. This section (205) of the Code of 1888, as amended by Acts 1892, c. 241, and as applicable to this case, is as follows: "Every trustee, to whom any estate, real, personal or mixed, shall be limited or conveyed for the benefit of creditors, or to be sold for any other purpose, shall file with the clerk of the court in which the deed or instrument creating the trust may be recorded, a bond in such penalty as the clerk may prescribe, being as nearly as can be ascertained, double the amount of the trust estate, and with sureties to be approved by the clerk, conditioned for the faithful per