forbidding to it the use of powers allotted to appellee to the appellant, of the building at the co-ordinate departments; that is:

"That the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them."

Being of opinion that the Legislature transcended its authority and power in the passage of the act of 1916, chapter 466, here in question, this act, for the reasons stated, must be held to be invalid, inoperative, and void.

The defendants' demurrer to the plaintiff's petition was therefore properly sustained, and the judgment will be affirmed. Judgment affirmed, with costs.

(130 Md. 465)

READ DRUG & CHEMICAL CO. OF BAL-
TIMORE CITY v. NATTANS.

(No. 41.)

(Court of Appeals of Maryland. March 13, 1917.)

SPECIFIC PERFORMANCE 47 — Oral AgrEE-
PART PERFORM-

MENT TO EXTEND LEASE ANCE-IMPROVEMENTS. Where the landlord received a proposal from the tenant to make substantial and expensive improvements if the lease were renewed, he accepted the offer by active participation in spending the lessee's funds on the improvements, and the lessee was entitled to specific performance of the

contract and to the extension.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. § 132.]

Appeal from Circuit Court of Baltimore City; Walter I. Dawkins, Judge.

"To be officially reported."

the corner of Howard and Lexington streets, in the city of Baltimore, which the lessee company is using in the conduct of its drug and chemical business. The present lease was executed on January 21, 1908, for a term which will expire on June 30, 1917, and for a yearly rent of $11,000. Mrs. Jennie Nattans, the lessor and appellee, is the owner of the property for life, with remainder in her children, under the will of her husband, Arthur Nattans, who died in the year 1905. The business now in operation on the leased premises was formerly owned by Mr. Nattans, and was transferred by him to the appellant corporation, which he organized and controlled. By his will the entire capital stock of the company, with the exception of 4 shares belonging to other persons, was bequeathed to trustees who were directed to pay the income from 14 of the shares to the widow, and from 24 shares to certain employés of the company and a house servant, and from specified allotments of his remaining $358 shares to his children, including those by a former marriage. The trustees named in the will were Mrs. Nattans, W. Burns Trundle, Esq., and Mr. Samuel L. Bachrach, husband of a daughter of the testator by his first wife. Upon Mr. Trundle's death, Edwin T. Dickerson, Esq., was ap pointed as his successor in the trusteeship. The affairs, of the appellant company were controlled by a board of directors consisting of Mrs. Nattans, her sons Ralph and Arthur, and her cotrustee, Mr. Bachrach. The presidency of the company was held by Mrs. Nattans. Ralph Nattans was its treasurer and manager, and Arthur Nattans was assistant manager and secretary.

Action by the Read Drug & Chemical Com-general pany of Baltimore City against Jennie Nattans. Decree dismissing the bill, and plaintiff appeals. Reversed and remanded.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Randolph Barton, Jr., and Joseph C. France, both of Baltimore (J. Pembroke Thom, of Baltimore, on the brief), for appellant. Lee S. Meyer and Charles F. Harley, both of

Baltimore, for appellee.

URNER, J. Upon a former appeal this case was presented on demurrer to the bill of complaint. 129 Md. 67, 98 Atl. 158. It is now to be considered upon the proof. The record is voluminous, and a detailed review of the testimony would not be practicable within the proper limits of an opinion. The essential facts will be stated in accordance with what the court regards as the preponderance of the admissible evidence.

The law of the case was settled upon the prior appeal, and we have now only to determine, as a question of fact, whether a definite and mutual agreement has been proven for the renewal of the existing lease, from the

The property leased to the company was used by it in conjunction with an adjacent and communicating building which it held under lease from a trustee representing what is known as the Hamman estate. That lease was for a term of 5 years ending July 31, 1914. A short time before its expiration an agreement was reached for the renewal of the lease for a term of 2 years and 11 months. This was the precise period of the unexpired term of the Nattans lease. The new Hamman lease provided for a further renewal, at the option of the lessee, for an additional term of 10 years. As proceedings in equity were required for the appointment of a trustee to act for the persons, some of them infants, who were interested in the Hamman property, the new lease was not ready for execution until December 14, 1914, when it was signed by the trustee, and by Mrs. Nattans as president of the Read Drug & Chemical Company.

In August, 1914, the Nattans and Hamman buildings were both damaged by fire. The insurance on the properties was adjusted in due course and produced funds sufficient to

restore the buildings to their former condi- | stated in the October resolution, and includtion. These funds were turned over to the lessee in evident recognition of the contractual liability of the respective lessors to make the necessary restorations. It was proposed, however, by the general manager of the Read Company, that material changes be made in the structure of the two buildings so as to make them one in external appearance and render them more attractive and convenient for the business to which they were devoted. A special meeting of the board of directors was held on October 27, 1914, when, according to the minutes:

"The general manager stated he wanted to spend about $30,000 in improving and repairing the Nattans and Hamman buildings, at Howard and Lexington streets, according to plans submitted, provided the owners of said buildings turn over to him the money received from the insurance companies in settlement of the fire loss, and a lease be obtained from Mrs. Nattans

for 10 years more after the expiration of the present lease. The following resolution was then passed: Resolved that the general manager be authorized to make an agreement with Mrs. Jennie Nattans for the cancellation of the present lease and for the execution of a new lease for 121⁄2 years, beginning January 1, 1915, at a rental of $16,000 per annum for the first 4 years, $18,000 per annum for the second 4 years, and $20,000 per annum for the remainder of the term."

The resolution just quoted was passed by the affirmative vote of all of the directors, except Mrs. Nattans, who presided and did not vote on the question. A few days later bids were accepted and contracts were entered into by the general manager, on behalf of the company, for the improvement of the buildings in pursuance of the plans he had submitted. The total cost of the improvements was $20,493.69, and the additional sum of $18,671.97 was spent for furniture and fixtures. All of the payments for those purposes were made by checks of the Read Company, signed by Mrs. Nattans as president and by Ralph Nattans as treasurer. The insurance money received on account of the damage to the buildings amounted to $6,903.81, which reduced to $13,589.88 the sum which the company paid out of its own funds for the structural changes and improvements. About 60 per cent. of the total amount applied to permanent improvements was expended on the Nattans property.

In the early part of December, 1914, Mr. Dickerson, as counsel for Mrs. Nattans, was instructed by her as to certain stipulations she desired to have incorporated in the new lease for which the resolution of October 27th had made provision. The clauses thus suggested had reference to the payment of water rent and to the restoration of the division wall between the Nattans and Hamman buildings at the expiration of the new term. Mr. Dickerson had already received from Ralph Nattans the current lease of the property, and after his interview with Mrs. Nattans he prepared a draft of a lease from her to the company for the term and rental 100 A.-47

ed in substance the incidental provisions of the present lease and the additional ones which Mrs. Nattans had specially mentioned. The draft of the new lease, as written by Mr. Dickerson, was delivered by him to Ralph Nattans, who in turn handed it to his own counsel, Mr. Meyer, for examination, and the latter rewrote it with some slight amendments. On December 8, 1914, the draft prepared by Mr. Meyer was taken to the apartments of Mrs. Nattans on the occasion of a conference at which she and the other directors of the company were present, with their respective counsel, and when the clauses she had suggested for the lease were briefly discussed, but no question was raised by any one as to its main terms or as to the intention of the parties that it should be eventually executed.

Prior to the October meeting of the board of directors, a proposal had been made by Ralph Nattans that the compensation he was then receiving as general manager, consisting of a yearly salary of $7,500, and 15 per cent. of the annual profits of the business in excess of $20,000, should be increased by the payment to him of 50 per cent. of the profits over and above the sum stated, in addition to his regular salary. An interview which he had with Mr. Bachrach on the subject resulted in a written agreement by that director to vote in favor of granting the additional compensation desired. In the agreemen¡. referred to no allusion was made to the du ration of the general manager's future service. The minutes of the October meeting as recorded show the passage of a resolution providing for the employment of Ralph Nattans as general manager of the company for life upon the terms he had proposed, and for the payment of two-fifths of his allotted half of the profits in excess of $20,000 to his brother Arthur as additional compensation to the latter for his services as assistant manager. When a copy of the minutes was afterwards submitted to Mr. Bachrach, he objected to the provision that the employment of the general manager should be for life, and insisted that the minutes were erroneous in recording a resolution to that effect. A controversy thus arose which culminated at a meeting of the directors on December 28, 1914, when, as the minutes show, Mrs. Nattans and her son Arthur stated that they approved of the employment of Ralph Nattans as general manager for life, with the increased compensation he had requested, and when Mr. Bachrach renewed his objection to such a contract, and when, to quote from the minutes:

"Ralph Nattans then announced that Mrs. Jennie Nattans was unwilling to enter into any new agreement relative to the leasing of the premises at Lexington and Howard streets."

To that decision Mrs. Nattans has since adhered.

The refusal by Mrs. Nattans to execute a

The case as developed by the proof differs from that stated in the bill of complaint in respect to the authorship of the proposal as to the amount of the rent to be paid under the lease during the period of its extension. It was alleged in the bill that the defendant herself designated the rentals set forth in the resolution of the board of directors. The proof is that Mr. Bachrach suggested the amounts. But the acceptance of the terms of the resolution by the defendant, in the manner we have described, places the case in the same situation, so far as the present question is concerned, as if she had originated the offer.

new lease of the property, in pursuance ofed upon a rental of $20,000 annually accountthe resolution of October 27th, is vitally ing from the time of the fire. That such a prejudicial to the lessee corporation of which demand was made by Mrs. Nattans is conuntil recently she was president, and to the ceded, but the proof is convincing as to her interests of the estate of which she is still acquiescence in the terms of the resolution a trustee. If the lease is not renewed, the after it was passed. company will not only be forced from the location where its business originated and has been conducted for years, but it will lose the benefit of the large investment it made in the improvement of the leased property upon the condition that the renewal should be granted. The trust estate would likewise sustain a serious injury from the shrinkage in the value of the Read Company's stock, constituting the entire assets of the estate, which would be the inevitable result of its eviction from its long-established place of business. The failure of the company to secure a renewal of its lease of the Nattans property would, of course, compel it to forego the exercise of its option to renew the simultaneously expiring lease of the Hamman building, which, as reconstructed with the company's funds in anticipation of the re newal of both leases, is not adapted to separate use for its purposes.

The equities of the case clearly and strongly favor the plaintiff's claim for a renewal of the lease, and in our judgment there is an ample basis of law and fact upon which the

The principle of our ruling on the demurrer to the bill is applicable to the case as proven. In the former opinion it was said:

"When a lessee of property has expended large of the owner's promise to extend the lease for a sums of money in improving it upon the faith specified term and rental, and, after the property has been thus improved, the owner refuses to make the extension, we can have no doubt as to the existence of adequate equity jurisdiction to require, the agreement to be specifically performed."

newed, the conclusion necessarily follows that the agreement should be enforced.

enforcement of that demand can be decreed. As we now hold upon the evidence that the A definite proposal was submitted by the defendant's conduct was equivalent to an lessee to make substantial and expensive improvements to the leased building, provided agreement on her part to renew the lease upon the terms offered, and as the plaintiff the lessor would renew the lease for an addi- has fully performed the undertaking in contional term of 10 years. The lessor's accept-sideration of which the lease was to be reance of that conditional offer was evidenced in a positive and practical way by her active participation in the expenditure of the lessee's funds upon the specified improvements. The mere circumstance that the lessor may not have expressed her assent in words does not detract from the conclusive effect of her conduct. Authorities have been cited, but none are needed, to support the obviously sound theory that a binding acceptance of an offer may be signified by deeds as well as by words. The plainest principles of justice require that one who has acted under the terms of a proffered agreement, to the extent of securing the benefits which it affords, should be estopped to deny the existence and

mutuality of the contract. Eareckson v. Rog

ers, 112 Md. 169, 75 Atl. 513; Carmine v. Bowen, 104 Md. 204, 64 Atl. 932, 9 Ann. Cas. 1135; Carroll v. Manganese Safe Co., 111 Md. 258, 73 Atl. 665; L. C. Smith Co. v. Riddlemoser, 126 Md. 193, 94 Atl. 655; Brantly on Contracts, § 16; 16 Cyc. 791; 6 R. C. L. p. 587; 2 Pomeroy's Equity, 802; 2 Story's Eq. Jur. (13th Ed.) p. 861.

It was the evident purpose of the resolution of October, 1914, that the new lease should be a renewal of the provisions of the increase of rent and extension of the term. one now in force, except for the intended No question was then raised as to any change in the provisions of the lease in other respects, and the clauses which Mrs. Nattans desired to have added do not appear to have been suggested until more than a month had elapsed after the passage of the resolution and the beginning of the improvements which were then under consideration. It is stated

in the brief for the appellant that there is no objection to the clauses proposed by Mrs. Nattans, as formulated by her counsel, and the lease to be executed, for the term and rental mentioned in the resolution, should include the clauses just referred to and the appropriate provisions of the existing lease.

The decree of the court below, dismissing the bill of complaint, will be reversed, and the cause remanded to the end that a decree of specific performance may be passed in accordance with this opinion.

It was testified by and on behalf of Mrs. Nattans that she distinctly refused at the directors' meeting of October 27th to agree to a renewal of the lease at the rentals men

Decree reversed, with costs, and cause re

STOCKBRIDGE, J. The Legislature of 1916 by chapter 456 adopted extensive amendments to the charter of Brunswick. The effect of the act was to provide the entire machinery for the government of the corporation, and the holding of the elections to put the act into full operation and effect. Among these was one for the holding of an election on the first Monday of August, 1916 (August 7th), at which were to be elected three councilmen, one from each of the wards into which the town was divided. At that election Frank L. Spitzer and George W. Nuce were

[Ed. Note. For other cases, see Mandamus, opposing candidates for the office of councilCent. Dig. § 164.] man from the third ward, and the former 2. MUNICIPAL CORPORATIONS 138 OFFI-received a plurality of the votes cast. What The eligibility of a candidate for the city purported to be a certificate of election was council must be determined as of the date of issued to Spitzer by Jacob H. Fry, clerk to the election, and not a subsequent date. the mayor and city council.

CERS-ELIGIBILITY.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 313.]

3. MUNICIPAL CORPORATIONS 138 - OFFI

CERS- ELIGIBILITY OWNERSHIP OF PROP

ERTY.

In view of Acts 1916, c. 456, requiring that a councilman of the city of Brunswick shall be at least 21 years of age, a citizen of the United States, and for 2 years next preceding his election a resident of said town, and assessed with property to the amount of $500 in the town, and shall have paid taxes thereon for 2 years preceding his election, a candidate who purchased property in 1913, and paid taxes thereafter upon it of the valuation of $400, the assessment not being transferred to him on the tax books until 1916, was not eligible in 1916 to the coun

cil.

By the terms of the charter the newly elected members of the council, and those who held over until 1917, were to meet for the first session of the newly constituted body on September 5, 1916. At 20 minutes before 8 on the evening of that day, Mr. Spitzer filed a petition for mandamus in the circuit court for Frederick county, in which, after setting forth the provisions of the act of 1916, he alleged that John T. Martin, the mayor of Brunswick, will not permit him, the petitioner, to take the oath of office when the council convenes at 8 o'clock, and the prayer of the petition was for a peremptory

[Ed. Note.-For other cases, see Municipal writ of mandamus to compel the administra Corporations, Cent. Dig. § 313.]

4. MUNICIPAL CORPORATIONS 138 CERS - ELIGIBILITY

ERTY.

OFFI

OWNERSHIP OF PROP

Nor was he rendered eligible by possession of a remainder in his father's estate, which was not assessed to him, though he did pay the taxes, and though his interest was vested.

tion of the oath to the petitioner. An order nisi was signed upon the presentation of the petition, requiring the mayor to answer the allegations by the 15th of September, and on this latter date the answer of the mayor was filed. The answer departed from the usual

[Ed. Note. For other cases, see Municipally recognized canons of pleading in manda

Corporations, Cent. Dig. § 313.] 5. MUNICIPAL CORPORATIONS

TION-CERTIFICATE OF ELECTION.

136-ELEC

In view of Acts 1916, c. 456, § 4, providing that the judges of election in the city of Brunswick shall make out a certificate at the conclusion of the count which shall state the person receiving the highest number of votes for council is elected councilman, a paper issued by the clerk of the mayor purporting to be a certificate of election conferred no right upon the candidate to whom it was issued.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 309-311.]

Appeal from Circuit Court, Frederick County; Hammond Urner, Glenn H. Worthington, and Edward C. Peter, Judges.

Mandamus by Frank L. Spitzer against John T. Martin, Mayor of Brunswick. From an order dismissing the petition, the relator appeals. Affirmed.

Argued before BOYD, C. J., and BURKE, THOMAS, STOCKBRIDGE, and CONSTABLE, JJ.

Leo Weinberg, of Frederick, for appellant. Jacob Rohrback, of Frederick, for appellee.

mus cases in not being definite and specific with regard to a number of the allegations, but the petitioner did not demur to portions of the answer as he might have done. From this point the pleadings were those customary in an equity case, rather than those appropriate to an action of mandamus. No objection has been raised by either party to this appeal on the ground of the form of the pleadings, and apparently none was interposed below, so that this court is constrained

to take the case as it finds it.

These

Evidence was taken tending to bear on the eligibility of Mr. Spitzer as a member of the council, and that question and the jurisdiction of the court to entertain the case are the two issues now to be passed on. both present questions of law, and neither is of any special difficulty. Logically they should be considered in the inverse order from that just stated. The objection, on the ground of lack of jurisdiction, is sought to be based on two grounds: First, that the council being a legislative body is of necessity

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the sole judge of the election and qualifica- | courts in such cases was elaborately considtions of its members; and in the second place, ered in Sherwood v. State Board of Canthat inasmuch as the remedy is given in sec- vassers, 129 N. Y. 360, 29 N. E. 345, 14 L. R. tion 6 of the act to any one feeling aggrieved, A. 646, and the jurisdiction was amply susthat provision of necessity excludes resort tained, the court saying in effect that it was being had to any other form of remedy. not precluded by a constitutional provision making each branch of the Legislature the

[1] The act of 1916 in providing for a council for Brunswick does not contain the cus-judge of elections, returns, and qualifications tomary provision making such body the judge of its own members, from declaring as a baof the election and qualifications of its mem- sis for refusing its aid to an applicant for a bers, but apart from this omission there are writ of mandamus, to compel a canvassing numerous cases which hold that in every board to give him a certificate of election, legislative body that body is the sole judge that he is ineligible for the office, when the of these questions. This proceeding in no facts showing the eligibility are undisputed, manner interfered with that right, if it be and the principle so laid down is adopted as assumed to have existed. The petition the established rule of law in 9 R. C. L. 1021. sought only to have the mayor of Brunswick No doubt whatever is entertained, therefore, perform that which was a purely ministerial that the circuit court for Frederick county duty, and the performance or nonperform- was possessed of full jurisdiction to inquire ance of which could in no manner interfere into the case as presented to it by Mr. Spitzwith the power of the council to inquire in-er's petition. to, and pass upon the election and qualifications of its members. The remedy given by the act in certain cases is contained in section 6, where it is provided that:

"The council shall receive all election returns, and determine all questions arising thereon, and any person conceiving himself aggrieved by reason of such decision may appeal to the circuit court for Frederick county, which shall hear and determine the same and determine who shall pay the costs of appeal."

This manifestly applies to questions arising out of the conduct of the election which may affect the validity of it, and the appeal there given from the action of the council was an entirely different matter from that involved in the petition to compel the executive officer of the town to perform a ministerial act. As has already been said, the petition in this case was filed some 20 minutes before the council met, at which time there was no action from which any appeal would lie, and the prayer of the petition looked to an entirely different relief from that which was covered by the provision of section 6, already quoted.

The case in this state most nearly approaching this aspect of the present case is Covington v. Buffett, 90 Md. 578, 45 Atl. 204, 47 L. R. A. 623. In that case the court was asked not merely to issue a mandamus to compel the supervisors of elections to place a name on the ticket, but also to create a vacancy by declaring that a member of the state Senate, by reason of having accepted another office, had vacated his position as a member of the Maryland Senate. In that case the court declined to entertain the application, because of the constitutional provision by which the Senate is made the judge of the election and qualifications of its members. It was therefore for the Senate, and not for the court, to determine whether a vacancy had been created and was then existing, which was preliminary to any election being held. That case is therefore readily distinguishable from the present one.

[2, 3] In the per curiam filed immediately at the conclusion of the argument, this court indicated that in its view Mr. Spitzer was ineligible under the provisions of chapter 456 of the Acts of 1916 for membership in the council of Brunswick. The qualifications prescribed in the act for a councilman are that:

age, a citizen of the United States, and for two "Each shall be at least twenty-one years of

years next preceding his election a resident of said town, and assessed with property in said town to the amount of $500, and shall have paid taxes thereon two years preceding his election."

The evidence taken relates to the qualifications of Mr. Spitzer under the language quoted. His eligibility must be determined as of the date of the election, not a subse quent date. People v. Purdy, 21 App. Div. 601, 47 N. Y. Supp. 601. There is no dispute upon the question of fact affecting this branch of the case, and those facts are: In the year 1913 Mr. Spitzer had purchased the equipment of the Imperial Theater in Brunswick, and thereafter had paid the taxes upon

it.

This property was assessed as of the value of $400. Though purchased by Mr. Spitzer in 1913, the assessment was not transferred to him upon the tax books until the year 1916. This property, therefore, failed to gratify the requirements of the act so as to qualify Mr. Spitzer for membership in the council: First, because of deficiency in value; and, secondly, because there was no legal liability, by reason of the assessment of it in the name of another, which attached to Mr. Spitzer for the payment of the taxes

thereon.

[4] The main reliance as complying with the property qualification required by the statute is placed upon the interest of Mr. Spitzer in the estate of his father. Mr. A. R. Spitzer, the father of the petitioner, was the owner of property in Brunswick of an approximate value of $5,000. He died on September 8, 1914, and the election at which Frank L. Spitzer claims to have been elected