There (118 Md. 498) OUTLAW v. OUTLAW. (Court of Appeals of Maryland. July 10, 1912.) BILL-ADMISSIONS. A demurrer to a bill in equity admits all facts properly alleged in the bill. [Ed. Note. For other cases, see Equity, Cent. Dig. § 494; Dec. Dig. § 239.*] 2. APPEAL AND ERROR (§ 81*) DERS. FINAL OR band for the custody of the infant child of the Orders in a suit by a wife against her husparties and for permanent alimony, which enjoin the husband from interfering with the child pending the suit, and which relate to counsel fees and temporary alimony, are not final and reviewable. cording to the terms and valuations in the | equally divided between the plaintiff and destatement of June, 1906, and to indemnify fendants, and the costs below to abide the the plaintiff for loss arising from any dis- final result of the case. crepancies in the statement, the liability of the defendants, if any, under the agreement in evidence, "can only be estimated by the value of the stock according" to the statement and "the measure of value therein ́agreed upon by the parties." As we understand the prayer, it means that the defendants are liable only to such extent as the 1. EQUITY (§ 239*)—PLEADING-Demurrer TO. evidence may show that the guaranteed value of the stock exceeded, if at all, its actual value at the time of the plaintiff's purchase. This theory is in accord with what we consider the proper construction of the agreement, and the defendants were entitled to have their liability thus defined. The "loss arising from any discrepancies" in the valuation of the assets could not be correctly estimated without consideration of their real value at the period under inquiry. was error in the refusal of this prayer. [8] In the ninth prayer, which was granted, and which is before us upon an exception reserved by the plaintiff, the court below rul-3. DIVORCE (§§ 1, 199*)-ALIMONY-POWER OF ed that, if the defendants should be found liable on the note, then the plaintiff would be entitled to recover the amount of the note, with interest, less the amounts shown from all the evidence to have been received by the plaintiff from the Coal Company since the renewal of the note, and all withdrawals made by her husband over and above his salary, as provided in the agreement. The plaintiff objects to this instruction, on the ground that it improperly charges her with sums received by her husband from the company, and for which she insists that she ought not to be held responsible, and also with payments since the renewal, which she claims were made on account of the first annual reduction, which resulted in the note being renewed at $3,500. There is evidence in the record from which it might be inferred [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 510-516; Dec. Dig. 81.*] Court. The power of courts to grant divorce is alimony is inherent in equity, in the absence of wholly statutory; but the power to award any statute to the contrary. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 1, 585, 586; Dec. Dig. §§ 1, 199.*] 4. HUSBAND AND WIFE (§ 285%*)-ALIMONY -POWER OF COURT. 14, authorizing courts of equity to hear Under Code Pub. Gen. Laws 1912, art. 16, causes for alimony in as ample manner as such cases could be heard in the ecclesiastical courts, the court may award alimony to a wife without decreeing a divorce, where the allegations in the bill praying for alimony, but not for divorce, state facts justifying a divorce under the statutes defining causes for which divorce may be decreed. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1074; Dec. Dig. § 2852.*] 5. DIVORCE (§ 27*)-HUSBAND AND WIFE (} 283*)-GROUNDS CRUEL TREATMENT-ExCESSIVELY VICIOUS CONDUCT. A continuous course of conduct by a husband towards his wife, designed to humiliate and degrade her, warrants a decree of divorce a mensa, under Code Pub. Gen. Laws 1912, art. 16, § 38, authorizing such a divorce for cruelty of treatment and for excessively vicious conduct, and where a wife shows, in her bill praying for alimony, such a course of conduct, the court may, without decreeing divorce, award alimony. that some of the payments made to the plaintiff after the present note was given were applicable to an annual reduction which the renewal anticipated; and the proof is not conclusive in establishing a situation in which the wife was justly chargeable with all the withdrawals shown to have been made by her husband in excess of his salary. In this state of the record it could not properly be ruled without qualification that all the amounts to which the prayer refers in this [Ed. Note. For other cases, see Divorce, connection should be deducted from the plain-Cent. Dig. $$ 62-83; Dec. Dig. § 27: Husband and Wife, Cent. Dig. §§ 1062-1073; Dec. tiff's claim. Dig. § 283.*] On account of error in the granting of the ninth and the refusal of the twelfth prayer, the judgment will be reversed, and a new trial awarded; but, as both appeals have been successful, it is proper that the costs below should abide the result of the suit. Judgment reversed, and case remanded for a new trial; the costs in this court to be Appeal from Circuit Court, Baltimore County. Suit by Laura Frances Outlaw against Charles W. Outlaw. From an order overruling a demurrer to the complaint, and requiring defendant to answer, he appeals. Affirmed. S. S. Field and O. I. Yellott, for appel-| conferred upon the courts. The power of Sauerwein, Brown & Cook, for ap- the courts to award alimony, however, was lant. pellee. BRISCOE, J. The bill in this case was filed by Mrs. Laura F. Outlaw against her husband, praying for the custody and guardianship of her infant child, and for an award of permanent alimony. It did not ask any relief by way of divorce, either a vinculo matrimonii or a mensa et thoro. The defendant, appellant here, demurred to the entire bill as not setting forth a case which would justify a court of equity in granting the relief prayed, or any relief, averring that the allegations were too general, indefinite, and uncertain, that they were conclusions of law, rather than statements of fact. [1] The effect of filing a demurrer to the bill was, of course, to admit all facts properly alleged in the bill as constituting a ground for the relief sought. After hearing had on the demurrer, the circuit court for Baltimore county, in equity, overruled the demurrer and required the defendant to an swer. [2] The order for the appeal names four orders as appealed from-one of December 15, 1911, enjoining the defendant from interfering with the infant child of the parties or removing him from the state pending the adjudication of his custody; one of January 3, 1912, in regard to counsel fees and alimony pendente lite; one of March 7, 1912, overruling the demurrer to the bill of complaint, and requiring the defendant to answer; and one of March 23, 1912, also in regard to alimony pendente lite and counsel fees. Of these only the third is pressed in this court, and the appeal as to the first, second, and fourth was apparently waived. But, whether waived or not, none of these three orders are reviewable by this court, not being final in their nature or decisive of any right of the parties. Hayward v. Hayward, 77 Md. xvi, unreported opinion. It was ably urged in the argument of the case that there was error in the order appealed from of March 7, 1912, for the reason that alimony was originally an incident of divorce, and that a complaint must set out as the basis for any decree of alimony, acts upon the part of the husband which would have been sufficient to sustain, if properly supported by proof, a decree of divorce. This argument, however, overlooks one essential difference between a proceeding for divorce, with alimony as an incident, and a proceeding for alimony only. [3] The power of the courts to grant divorce is dependent entirely upon statute, and has no existence in the absence of statutory enactment. For a long time after the separation of this state from England, divorces were obtainable, and obtainable only, through an act of the General Assembly, and first recognized and exercised under the provincial government as early as the case of Galwith v. Galwith, 4 Har. & McH. 477, decided in 1689, and that power so recognized as inherent in equity jurisdiction has since been continuously exercised in this state. Hewitt v. Hewitt, 1 Bland, 101; Fornshill v. Murray, 1 Bland, 479, 18 Am. Dec. 344; Wallingsford v. Wallingsford, 6 Har. & J. 485; Helms v. Franciscus, 2 Bland, 565, 20 Am. Dec. 402; Dunnock v. Dunnock, 3 Md. Ch. 140; Jamison v. Jamison, 4 Md. Ch. 289; Wright v. Wright, 2 Md. 429, 56 Am. Dec. 723; Stewart v. Stewart, 105 Md. 297, 66 Atl. 16; Taylor v. Taylor, 108 Md. 129, 69 Atl. 632; McCaddin v. McCaddin, 116 Md. 567, 82 Atl. 554. Nor is the doctrine one which has been limited to Maryland. The authorities generally are collected in 2 Am. & Eng. Ency. 96; 1 Bishop on Marriage, Divorce and Separation, §§ 1403 and 1409; Browne on Divorce and Alimony, p. 269; Story's Equity Jurisprudence (13th Ed.) § 1423a. There is not however entire unanimity in the decisions as to the right of courts of equity to grant relief of alimony alone, in states where by statutory enactment it is made an incident to a proceeding for divorce, with a manifest tendency not to allow alimony only, upon the ground that, the state having by law given a defined power to the courts, they will not exercise any power not expressly conferred by the statute. Nelson on Divorce and Separation, § 1000. [4] The real question is: Can such relief be granted the wife without a divorce when the statute has provided that relief with divorce? Mr. Bishop in his work denies the jurisdiction of equity courts to grant this relief, but the jurisdiction and power is sustained by the courts of Alabama, Arkansas, Colorado, Iowa, Kentucky, Maryland, Mississippi, North Carolina, Rhode Island, South Carolina, and Virginia, and Mr. Nelson, following these adjudications, lays down the opposite rule from Mr. Bishop. In this state the jurisdiction of the court of equity was made a subject of statutory enactment as early as 1777, and by chapter 12 of the Acts of that year it was provided that "the courts of equity of this state shall and may hear and determine all causes for alimony in as full and as ample manner as such cases could be heard and determined by the laws of England in the ecclesiastical courts there." Code Public General Laws, 1912, art. 16, § 14. This section has been a subject-matter of construction in this state and especially as to the extent of the meaning and applicability of the reference to the ecclesiastical courts of England, in the cases of Fornshill v. Murray, supra, and Helms v. Chancellor Bland says, with reference to the application for alimony: "If by the cruel or immoral conduct of the husband the wife cannot with safety and in decency consort with him, then she may upon the ground of such ill-treatment come into a court of equity and have a separate maintenance assigned to her out of her husband's estate. Then after referring to the difficulty in England he continues: "In England during the short existence of the republic the ecclesiastical courts were abolished, and in consequence thereof the entire jurisdiction in all cases of alimony and separate maintenance devolved as a matter of course and necessity upon the Court of Chancery as the only tribunal fitted and competent to decide thereon. In this state there never was an ecclesiastical court, and therefore the High Court of Chancery always had, even under the provincial government, entire jurisdiction of such cases of claims for alimony or for separate maintenance out of the husband's estate founded on his misconduct." It will hardly be disputed in this state today that, where the allegations of a bill of complaint are sufficient to support either form of a divorce, they would be insufficient to support a bill for alimony alone; but there are one or two expressions in previous opinions which give color to the idea that a bill for alimony may be properly entered by a court, even though the facts set out in the bill would be insufficient to authorize the entry of a decree of divorce. An examination of these cases will show that such a question was not directly presented to the court or necessarily involved in the facts of the case. Thus, in the Jamison Case, supra, the facts show an abandonment at the time of the filing of the bill of about 18 years, a far longer period than was required upon which to base a decree, either a mensa or a vinculo; and in the case of Stewart v. Stewart, supra, the bill charged the defendant with adultery, and the prayer of the bill was for a divorce a mensa and alimony. Manifestly, under the provisions of the Code, where adultery is not one of the enumerated causes for which a divorce a mensa might be granted, no divorce of the character prayed could have properly been granted, and accordingly the case was remanded, that the plaintiff might either amend her bill by prayer for a divorce a vinculo, or, since the award of alimony might be made equally well for a cause which would justify a divorce a vinculo as one a mensa, that if the plaintiff preferred she might make her bill one for alimony only. The true rule as to the necessary allegation to support a bill for alimony alone appears to be that given by Mr. Nelson in the section of his work already referred to, and is the view which is expressed by Chancellor Bland in the case of Helms v. Fran ciscus, supra, when he says, referring to the Acts 1777, c. 12, "yet, according to the provisions of this act, it (the court) cannot allow itself to receive any matter as a sufficient ground for granting alimony alone, which would not be a sufficient foundation in England for granting a divorce a mensa et thoro together with its incident alimony," and the cases of Wallingsford v. Wallingsford, 6 Har. & J. 485, and Dunnock v. Dunnock, 3 Md. Ch. 140, lay down the same rule, and it is a rule which is approved by the adjudged cases. [5] The cases for which a divorce a mensa may be decreed are set forth in article 16, § 38 (Code 1912), and the first two are cruelty of treatment and excessively vicious conduct. It would serve no good purpose to incorporate here the allegations as set forth in the third, ninth, and tenth paragraphs of the bill of complaint; but, assuming them to be true, as must be done under the demurrer, they disclose what was properly characterized by the judge of the circuit court for Baltimore county as "gross misconduct," and not of a single isolated act, but of a continuous course of conduct, apparently designed and intended to humiliate and degrade his wife, such conduct as, if supported by proof, would have amply warranted a decree of divorce a mensa upon either or both of the grounds named in the statute. It is seldom a court has been called upon to examine a bill setting forth a more depraved course of treatment of a wife by her husband than in the present case, and the action of the circuit court for Baltimore county in overruling the demurrer and requiring the defendant to answer will be sustained. Order of court was affirmed on the 13th day of June, 1912, and case remanded for further proceedings; costs to be paid by the appellant. Under Rev. St. c. 51, § 75, which gives the Board of Railroad Commissioners power over the repair, maintenance, and construction of town bridges used in the operation of electric cars, and authorizing the Board to apportion the matter of expense of improvements, the Board is empowered to direct an electric railroad company to renew an old bridge, which was originally maintained by the town as a highway bridge, but which was condemned by the Commissioners, because weakened by subsequent construction and operation of the railroad; and the Board properly ordered the town to pay the railroad company 40 per cent. of the cost of the improvement, not exceeding a stated •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes sum, and that the company should maintain | said board just and fair." Upon this notice the planking between its rails, the town main- the Commissioners met and adjourned the taining all planking for the roadway, and that all other expenses of repair and maintenance hearing thereon to August 9, and again from be borne by the company equally with the town. August 9 to October 13, 1911, when all par[Ed. Note. For other cases, see Street Rail- ties in interest were fully heard and the varoads, Dec. Dig. § 40.*] rious matters involved in the notice were ad Report from Supreme Judicial Court, Pe- judicated as follows: nobscot County. Proceeding by the Railroad Commissioners to rebuild a bridge. From a decree of the Commissioners ordering the construction of a new bridge, to be partly paid for by the Bangor Railway & Electric Company, the company appeals adversely to the Inhabitants of Orono. On report. Appeal denied. Decree of Commissioners confirmed. Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and HANSON, JJ. "It is therefore hereby determined, ordered, and decreed that said wooden bridge shall be rebuilt, by constructing in place thereof a steel bridge resting upon granite or concrete piers and abutments, which shall be suitable and safe for both highway and street railway uses. "Said new bridge shall be built by said Bangor Railway & Electric Company upon plans to be submitted to and approved by the Board of Railroad Commissioners, and all work thereon shall be done under the di E. C. Ryder, for plaintiff. C. J. Dunn, for rection of said Board and to its satisfaction. defendant. SPEAR, J. For many years prior to the organization and operation of the Bangor Electric Railroad the town of Orono had maintained a bridge, across the Stillwater branch of the Penobscot river, which was in every respect adapted and suitable for all the purposes of a highway bridge. Upon the extension of the railroad into the town of Orono, the railroad company, under proper authority, appropriated a part of this bridge to its own use and operated its cars thereon. In consequence of this unusual and increased weight imposed upon the bridge, which was neither anticipated nor necessary in its original construction, the structure, although repaired and strengthened from time to time, gradually weakened under the weight and vibration of the cars, until on the 28th day of July, 1911, its further use was prohibited to the railroad company by order of the Railroad Commissioners. This suspension of the use of the bridge resulted in operating the road by running the cars from each end of the bridge; the passengers, whatever the weather conditions, being obliged to walk the bridge in order to take the car and pursue their journey in either direction. This condition of inconvenience to the company and annoyance to the public has continued to the present time. "The expense of rebuilding said bridge is hereby apportioned between said Bangor Railway & Electric Company and said town of Orono in the manner following: "Upon the completion of said new bridge by said Bangor Railway & Electric Company, and its approval by the Board of Railroad Commissioners, the town of Orono shall pay said Bangor Railway & Electric Company, as its just and fair proportion of said expenses, 40 per cent. of the same; but said town of Orono's proportion of said expenses so to be paid said Bangor Railway & Electric Company shall in no event exceed the sum of $12,000. "And it is hereby further decreed that, after the completion of said new bridge, the Bangor Railway & Electric Company shall thereafter maintain the planking between its rails, and the town of Orono shall maintain all planking for the roadway, and all other expenses of repairs and maintenance of said bridge shall be borne equally by said railway and said town.” From this adjudication the railroad company seasonably appealed to the next succeeding term of the Supreme Judicial Court to be held in Penobscot county, and within the proper time filed in the office of the Board of Railroad Commissioners its reasons of appeal, in substance as follows: 1. That the bridge described in the decree is a highway bridge, which the town was bound to maintain and keep in repair, and not the railroad company, and that the Commissioners had no authority in law to order the company to build a new structure or On the 22d day of July, 1911, the Railroad Commissioners, suo moto, gave notice of a hearing to be held on July 28, 1911, at which they would "determine the repairs, renewals for strengthening of parts, or, if necessary, the manner of rebuilding said bridge, requir- | bridge. ed to make the same safe for the uses to which it is put. And said Railroad Commissioners will then and there further determine by whom the expenses of such repairs, renewals, strengthening, or rebuilding of said bridge shall be borne, or will apportion the same in such manner as shall be deemed by 2. The second reason, in its effect upon the decision of the case, is precisely like the first. 3. That, if the railroad company can be required to build a new bridge, then the Railroad Commissioners have not fairly or justly apportioned the expense of such build ing between the railroad company and the terms and was not intended to confer such town of Orono. 4. That, if the Railroad Commissioners had authority to compel the railroad company to build a new bridge, then they have not fairly and justly apportioned the expense of maintaining said bridge after it is constructed. authority. In other words, the constitutional right of the Legislature to delegate such power to the Railroad Commissioners is not questioned, and, it may be proper to add, could not be reasonably questioned, in view of the numerous decisions in the courts of the various states, and especially in the Supreme Court of the United States. The defendant contends that, in view of the plain statutory requirements that towns shall be responsible for the building of highways and erection of bridges and for the maintenance thereof, it was the duty of the and the railroad company. While this conapportion the expenses between the town tention is undoubtedly true, with reference to building bridges required for the vehicles of travel when these statutes were enacted, The real issue in this case is whether the Railroad Commissioners were vested with authority to direct the railroad company to rebuild a new bridge in the place of the old one in accordance with their order and decree, and depends entirely upon a question of Railroad Commissioners in the first instance statutory construction. Revised Statutes, c. 51, § 75, contains the following provision re-bridge upon the town of Orono, and then to impose the renewal or rebuilding of this lating to the power of Railroad Commissioners over the repair, maintenance, and construction of bridges appropriated for use in the operation of electric cars, to wit: "Bridges erected by any municipality, over which any street railroad passes, shall be construct-it hardly seems credible that the Legislaed and maintained in such manner and condition, as to safety, as the Board of Railroad Commissioners may determine. Said Board may require the officers of the railroad company and of the municipality to attend a hearing in the matter, after such notice of the hearing to all parties in interest as said Board may deem proper. Said Commissioners shall determine at such hearing the repairs, renewals, or strengthening of parts, or if necessary, the manner of rebuilding such bridge, required to make the same safe for the uses to which it is put. They shall determine who shall bear the expenses of such repairs, renewals, strengthening or rebuilding, or they may apportion such expenses between the railroad company and the city or town, as the case may be, in such manner as shall be deemed by the Board just and fair, and shall make their report as hereinafter provided." The defendant in argument raises two fundamental objections to the decree of the Commissioners: 1. The Railroad Commissioners have no jurisdiction to order the Bangor Railway & Electric Company to construct a new bridge, in renewal of the old one. 2. After said bridge has been constructed by the Bangor Railway & Electric Company, in accordance with the decree, the railway company has no power to enforce payment of any part of the costs from the town of Orono. We ture, in enacting the above statute, intend- It is the opinion of the court that a fair and reasonable construction of the above statute is calculated to answer both of the above contentions in the negative. In con- power. struing this statute the appellant's counsel On the other hand, it must have been eviin argument admits, and very properly, that the Legislature had undoubted power to confer upon the Railroad Commissioners full authority to issue orders and decrees in harmony with those issued in the case at dent to the Legislature, when this statute was enacted, and, in fact, it had been so held in this state, that the location of electric roads and the operation of electric cars constituted a new use of the highways, |