fendant for which, under his version of the agreement between them, he is clearly entitled to recover, but there is no evidence in the record to support the claim made in the seventh count of the declaration. [8] The proposition presented by defendant's third prayer was that as the plaintiff was employed by the Poole Engineering & Machine Company he could not act as the agent of the defendant or recover for any services rendered in the negotiations resulting in the contracts referred to between that company and Mr. Fast. Mr. Shoemaker, who represented the Poole Engineering & Machine Company, testified that he never knew that the plaintiff intended to claim a commission based on those contracts, and if there was any evidence in the case that the plaintiff participated in such negotiations there might be some force in the contention made by this prayer. But, as we have said in disposing of the defendant's second prayer, there was no such evidence, and therefore the prayer would have had a tendency to confuse and mislead the jury. The defendant's fourth prayer was properly refused. If the agreement between the plaintiff and defendant was, as some of the evidence for the plaintiff tends to show, that the defendant was to compensate the plaintiff for services he rendered and the materials he furnished when he was able to do so, regardless of whether they succeeded in forming a company to take over the patents, etc., the fact that the plaintiff, after rendering the services, abandoned any further effort to form such a company would not deprive him of his right to compensation for such services and materials, unless there was an agreement to that effect. [9] We have disposed of the exception to the ruling of the court on the prayers, notwithstanding the appellant included in the bill of exception an exception to the ruling of the court on the special exceptions to plaintiff's prayer, which, according to the proper practice, as repeatedly pointed out by this court, should have been made the subject of a separate exception. the fourth exception. It was asked for the purpose of showing by Mr. Harman what connection the plaintiff had with the introduction of Mr. Harvey to the defendant. But even if the question was objectionable, the answer of the witness did not injure the defendant. The seventh, eighth, and ninth exceptions were to questions eliciting evidence of the fact that the defendant was employed by the Poole Engineering & Machine Company, and of the amount of his salary, etc., and for the reasons stated in disposing of the third exception we think there was error in permitting them to be answered. [12] The evidence referred to in the tenth exception was offered for the purpose of showing by Mr. Shoemaker that the plaintiff told him that he was interested in the outcome of the negotiations between Mr. Shoemaker and Mr. Fast before the negotiations were completed, and was not pertinent because there was no evidence to show that the plaintiff participated in such negotiations. The answer of the witness could not, however, have injured the defendant. [13] There was serious error in the rulings in the eleventh and twelfth exceptions. The witness stated that he was a lawyer, and had been practicing his profession in Baltimore since 1892, and had also been interested in developing properties, and financing properties, propositions, and companies, and had "been in almost every line, including patents and other things." After further stating that he had heard all the evidence of the plaintiff's witnesses, except that of Mr. Robinson, who was called later, he was asked to tell the court and jury, "assuming that the testimony of the plaintiff, Mr. Austin, are facts," what in his judgment would be "a fair compensation to the plaintiff for the services he has performed." After the objection to the question was overruled, the witness replied: "If Mr. Austin had done nothing but consummate the deal with the Poole Engineering & Machine Company the very minimum com[10] The first, second, fifth, and sixth ex-mission he was entitled to was 10 per cent. I ceptions were not pressed by the appellant, do not think anybody would have done it for a In the third exception the plaintiff was ask-cent less than that. ed if he knew what the defendant received under the contracts with the Poole Engineering & Machine Company. As there was no evidence to show that the contracts referred to were the result of negotiations conducted by him on behalf of the defendant, the evidence was not material. Even if it be assumed that the plaintiff is entitled, under the circumstances disclosed by this record, to recover for introducing the defendant to Mr. Shoemaker, the amount the defendant realized from the contracts made with that company would not be material upon any theory warranted by the evidence in the As to the value of his work and report that seems to be very moderate." When asked to give his reasons for his conclusions, he explained the difficulty of financing patents, particularly at that time. The question not only ignored the testimony of the other witnesses for the plaintiff as to the services rendered by the plaintiff, but the statements of the witness failed entirely to show that he was qualified to express an opinion as to the value of the services which the plaintiff testified he had rendered. His qualification as a lawyer, and the fact that he had some experience in development of case. (107 A.) STRANGE, Mayor, v. LEVY. (Court of Appeals of Maryland. 1919.) (134 Md. 645) (No. 31.). June 25, 1. STATUTES 351⁄2-REFERENDUM-APPLICABILITY-LOCAL LAWS. Acts 1918, c. 205, creating office of president of Annapolis Water Company, is not unconstitutional because passed to take immediate effect, under Const. art. 3, § 31, notwithstanding article 16, relating to the referendum, and sec tion 2, providing that no measure creating an office shall be enacted as an emergency law, since article 16, in view of section 3 (a), is inapplicable to public local laws for any city other than Baltimore City. 2. STATUTES 351⁄2 - Referendum—EMER ing patents, even if his personal experience could qualify him to express an opinion of the value of services rendered in such cases, certainly did not make him competent to express an opinion as to the value of services rendered by a mechanical engineer in passing upon the value, etc., of patents for a mechanical device and in conducting and making reports of tests of the machine. It is not clear upon what theory this witness was produced, unless it was upon the theory that he was competent to testify to the value of services performed in financing propositions. But there was no evidence in the case to show that the plaintiff rendered such services. There was no motion to strike out the witness' answer to the question in the eleventh exception, but when he was asked to give his reasons for his conclusion, he should not have been permitted to The declaration of the Legislature that an do so over the objection of the defendant, act is an emergency act does not make it so, because his answer to the previous question if it does not come within the purposes and was based upon the assumption that the provisions of Const. art. 16, relating to the plaintiff had consummated the deal with the Poole Engineering & Machine Company when there was, as we have stated, no evidence in the case to warrant such an assumption. The appellee contends that the exception to the question in the eleventh exception did not raise the question of the qualification of the witness as an expert. The contrary rule was applied in United Rys. Co. v. Corbin, 109 Md. 461, 72 Atl. 606, and appears, from the report of the case, to have been followed in Rittenhouse, W. Auto Co. v. Kissner, 129 Md. 102, 98 Atl. 361. The thirteenth exception was to the introduction by the plaintiff of a letter from his counsel to Mr. Karr, counsel for the defendant, and we think the exception should have been sustained. referendum. Appeal from Circuit Court, Anne Arundel County; Robert Moss, Judge. "To be officially reported." Bill by John J. Levy against James F. Strange, Mayor of Annapolis, Md. From an order making preliminary injunction perpetual, defendant appeals. Reversed, and bill dismissed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ. George H. Rullman and Ridgely P. Melvin, both of Annapolis, for appellant. Nicholas H. Green, of Annapolis, for appellee. [14, 15] We see no objection to the eviADKINS, J. This is an appeal from an dence referred to in the fourteenth exception, or how the defendant could have been in-order passed on April 3, 1919, by the circuit jured by its admission, even if it was objec For the reasons stated in disposing of the fourteenth exception there was no error in refusing to strike out the evidence referred to in the sixteenth exception. Because of the errors pointed out in the rulings of the court below in the third, seventh, eighth, ninth, eleventh, twelfth, thirteenth, and seventeenth exceptions, the judgment appealed from must be reversed, and case remanded for a new trial. court for Anne Arundel county declaring chapter 205 of the Acts of the General Assembly of Maryland of 1918 unconstitutional, null, and void "in so far as it attempts to create the municipal office of president of the Annapolis Water Company and of Annapolis, and so far as said act imposes provide for his appointment by the mayor upon the counselor any duty of being director of the Annapolis Water Company," and making perpetual a preliminary injunction passed by said court on May 9, 1918, restraining and enjoining James F. Strange, mayor of Annapolis, from appointing George T. Melvin, or any other person, as president of said water company. The learned court below based its decision on the ground that said act was passed as an emergency law under article 16 of the Constitution of Maryland, known as the Judgment reversed, with costs, and a new referendum, and therefore violates the protrial awarded. viso in section 2 of said article: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 550 "That no measure creating or abolishing any office, or changing the salary, term or duty of any officer, or granting any franchise or special privilege, or creating any vested right or interest, shall be enacted as an emergency law." The three questions argued on this appeal were: (1) Was the appointment of George T. Melvin as president of the water company actually made before the granting of the preliminary injunction? (2) Was any office created, or the salary, term, or duty of any officer changed, within the meaning of said constitutional provision, by the act of 1918? (3) Assuming that the constitutional provision was violated by the attempt to make the act an emergency law, did that render the entire act unconstitutional? [1] In the view we take of this case, it is unnecessary to consider any of these points. In our opinion the act of 1918 does not come within the purview of article 16 of the Constitution. That article was clearly not intended to apply to public local laws for any city other than Baltimore City; there being no provision for a referendum except in cases of public general laws applicable to the state, and public local laws for a county or the city of Baltimore. Section 3(a) of the said article is as follows: "The referendum petition against an act or part of an act passed by the General Assembly, shall be sufficient if signed by ten thousand qualified voters of the state of Maryland, of whom not more than half shall be residents of Baltimore City, or of any one county; provided that any public local law for any one county or the city of Baltimore, shall be referred by the Secretary of State only to the people of said county or city of Baltimore, upon referendum petition of ten per cent. of the qualified voters of said county or city of Baltimore as the case may be calculated upon the whole number of votes cast therein respectively for Governor at the last preceding gubernatorial election." It is manifest that a public local law for the city of Annapolis does not come within the above-quoted provision, and there is no other provision in article 16 applicable to such an act. [2] This court decided, in the case of Beall v. State, 131 Md. 669, 103 Atl. 99 that article 16 did not supersede section 31 of article 3 of the Constitution, but that said provision of the Constitution remained in full force, except as to the cases provided for in article 16. ture to provide that the act of 1918 should go into effect immediately under section 31. of article 3 of the Constitution. It follows that the court below erred in declaring said act unconstitutional and in granting the injunction. Decree reversed, and bill dismissed, with costs to appellant. 1. DIVORCE 57-JURISDICTION OF COURTS The divorce jurisdiction of courts of equity is conferred by statute, and the statute limits and prescribes such jurisdiction. 2. DIVORCE 289-JURISDICTION OF CourtCUSTODY OF CHILDREN-DENIAL OF DECREE. Under Code Pub. Gen. Laws 1904, art. 16, $38, providing that in all cases where a divorce is decreed the court may award property to the wife, and shall have power to direct who shall have custody of the children, the power to award the custody of the children is dependent on the granting of a divorce, and a decree determining the custody after denying the divorce is void. Appeals from Circuit Court of Baltimore City; James P. Gorter, Judge. Suit for divorce by Helen Murray against George Wallace Murray. From a decree of the court modifying a previous decree which determined the rights of the parties to the custody of the child after denying the divorce, both parties appeal. Decree reversed and petition dismissed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ. Robert Biggs, of Baltimore, for George Wallace Murray. Chester F. Morrow and Alfred S. Niles, both of Baltimore (Carlyle Barton, of Baltimore, on the brief), for Helen Murray. PATTISON, J. There are two appeals in Helen Murray, the the record before us. appellee in the first of these appeals, filed her bill against the appellant George Wallace Murray on May 6, 1915, asking for a divorce a mensa et thoro and for the custody of their infant son, at that time 22 months old. The defendant filed his answer thereto denying the allegations of the bill upon which the relief was sought, and issue was joined thereon. The declaration by the Legislature that an act is an emergency act does not make it so if it does not come within the purposes The court, after hearing evidence upon and provisions of article 16. In our opinion it was perfectly competent for the Legisla- the issue so framed, passed its decree on (107 A.) September 28, 1915, dismissing the bill, ex- The plaintiff, at the date of the passage of the decree, was living with her parents, apart from her husband. The child, at such time, was in her custody, where it has ever since remained, and during which time the defendant has exercised the right and privilege of visiting his son given to him by said decree. As shown by the docket entries found in the record, Mr. Murray on the 18th day of December, 1917, filed a petition in said cause asking for a modification of the original decree in respect to the "care, custody, and schooling of the child." The petition was answered by Mrs. Murray and upon hearing it was dismissed by the court to whom application was made. On the 14th of February, 1919, Mr. Murray again filed a petition again asking for a modification of the original decree of September 28, 1915, to the extent of permitting him to have the custody of the child "Ordered that the decree passed in this case on the 28th day of September, 1915, be and the same is hereby modified in relation to the custody of said Douglas Williamson Murray to this effect, to wit, that jurisdiction is hereby retained by this court over the care, custody, and maintenance of said Douglas Williamson Murray, and the custody of said Douglas shall remain with the plaintiff in this case until the further order of this court; provided always that the defendant herein shall have the right to visit said Douglas and to have the custody of him during the afternoon of all business holidays in each year, and, in addition thereto, on the afternoon of one business day in each month, provided on said last-named occasions reasonable notice shall first be given by said plaintiff of his intention to call for said Douglas, and, in addition thereto, the Saturdays in April and May from 3 to 6 p. m.; and, in addition thereto, the defendant shall have the right, from and after the first Saturday in June, 1919, to visit the said Douglas and to have the custody of him every alternate Saturday from 12 o'clock noon until the following Monday at 8 o'clock in the morning. "And be it further ordered, with the consent and approval of said defendant, that he shall pay to the plaintiff the sum of ten dollars ($10) per month for the support and maintenance of said infant, until the further order of this court." The wife as well as the husband appealed from this decree. The question arises, in the consideration of these appeals, though not presented by either of the parties to the proceedings, whether the court had jurisdiction to pass the decree appealed from. The decree, as we have shown, was a modification of a former decree awarding the care and custody of the child to its mother after she had been denied the partial divorce sought by her. This question has been before the courts of this country a number of times, and it has generally been held that where a divorce is denied or not granted the court can not consider or pass upon the question of the custody of the children. Keppel v. Keppel, 92 Ga. 506, 17 S. E. 976; Garrett v. Garrett, 114 Iowa, 439, 87 N. W. 282; Simon v. Simon, 6 App. Div. 469, 39 N. Y. Supp. 573, "each week from and during Saturday after-affirmed in 159 N. Y. 549, 54 N. E. 1094; Danoon and until Monday at 8 o'clock a. m., during all business holidays and for during one business day in each month, provided your petitioner shall so desire, and provided, further, that he shall give reasonable notice of such desire to the said Helen Murray; and your petitioner further prays that the plans for the religious and secular education of the said Doug[1] It is by statute that the jurisdiction las Williamson Murray shall be made by your exercised by the courts of equity in this state, petitioner after consultation with the said Hel-in divorce cases, is conferred upon them, en Murray, your petitioner to have the deciding voice with reference to said questions." The court, upon the petition and answer filed thereto, and upon evidence offered by both the petitioner and respondent, on March 28, 1919, passed the following order: vis v. Davis, 75 N. Y. 221; Thomas v. Thomas, 250 Ill. 354, 95 N. E. 345, 35 L. R. A. (N. S.) 1158, Ann. Cas. 1912B, 344. But in most of these cases the decision turned upon the construction of the statute of the state in which the case was decided. which statute likewise limits and prescribes the jurisdiction so conferred. Therefore we, too, must resort to the statute in deciding this question. [2] Section 38 of article 16 of the Public General Laws of this state provides that provision requiring him to so do, though lessor rebuilt retaining walls of pipe without restoring pipe. Appeal from Superior Court of Baltimore City; Carroll T. Bond, Judge. "To be officially reported." "In all cases where a divorce is decreed, the court passing the same shall have full power to award to the wife such property or estate as she had when married, or the value of the same, or of such part thereof as may have been sold or converted by the husband, having regard to the circumstances of the husband at the time of the divorce, or such part of any such property as the court may deem reasonable; and shall Action by the Pioneer Hardwood Flooralso have power to order and direct who shall ing Company, against the Felippe A. Broadhave the guardianship and custody of the chil-bent Mantle Company of Baltimore City. dren, and be charged with their support and Judgment for defendant, and plaintiff apmaintenance and may at any time thereafter peals. Affirmed. annul, vary or modify such order in relation to the children." It is plain from the provisions of the statute that the property and estate of the wife shall be awarded to her only when a divorce has been decreed, and it is also, we think, the meaning of the statute, when properly construed, that the court shall have no power to order and direct who shall have the guardianship and custody of the children until a divorce has been decreed. The effect of the provisions of the statute is that in all cases when a divorce is decreed, and not before, the court passing the same shall have power to award to the wife her property "and shall also have power to order and direct who shall have the tody of the children." cus The question of the custody of the children is an element of the case entirely incidental upon the main relief sought--the divorce of the parties-and unless the latter be granted the court is without authority to make any disposition of the children. The court had no power to pass the original decree awarding the children to the mother after refusing to grant her a divorce, and its act in so doing was a mere nullity. There being no authority in the court to pass the original decree, it was without jurisdiction to grant the decree appealed from, modifying it. The decree will therefore be reversed. Decree reversed and petition dismissed; each of the parties to pay one-half of the costs of the two appeals. (134 Md. 640) PIONEER HARDWOOD FLOORING CO. v. Landlord and TENANT 150(1)-SHAVINGS PIPE-REPAIR-DUTY OF Lessor. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ. Geo. Washington Williams, of Baltimore (John Holt Richardson, of Baltimore, on the brief), for appellant. J. McGrath, of Baltimore, on the brief), for appellee. URNER, J. On August 1, 1912, the appellant corporation, which is engaged in the manufacture of hardwood flooring, became the lessee of the first floor of a three-story factory building in the city of Baltimore, for a term of three years, under a lease providing for automatic renewals for successive terms in the absence of notice by either party to the contrary. The lessor corporation, which is the appellee in this case, also owned and was itself operating a neighboring factory plant including a one-story engine and boiler building with which there was connected prior to the lease to the appellant a pipe leading from the plant of a third manufacturing company and employed for the conveyance of shavings from the latter factory to the appellee's engine room to be there used as fuel. The appellant's lease provided that it should "have the right" to remove the shavings pipe from the pre-existing connections, and attach the pipe to the plant it was leasing and to that of the appellee, with a view to the disposition of the shavings produced in the course of the appellant's manufacturing operations. The change in the location and connections of the pipe was made by the appellant under the terms of the lease and at its own expense. About two years later, the plant into which the pipe discharged was leased by the appellee to the Union Box Company. In March, 1918, while that company and the appellant were still in possession of their respective leased properties, the wall of the engine room with which the shavings pipe connected was found to be badly cracked and in such a dan Where factory building lease permitted les-gerous condition that it was condemned and see to connect shavings pipe from leased build-its removal ordered by the building inspec ing to another building owned by lessor, lessor tor of the city. Upon this wall rested an could not be required to keep pipe and supports iron trestle 26 feet high which supported the in place or in good repair, in absence of lease shavings pipe, and, as this support was |