ed, in moving and improving the buildings and ments. "And it is further herein provided and agreed that upon the removal of the buildings of the Arundel Boat Club, Maryland Motorboat Club, and the Ariel Rowing Club to their respective locations at Ft. McHenry, as designated upon the drawing hereunto annexed, the absolute title in and to said buildings (but not their contents) shall vest in the mayor and city council of Baltimore and be and become the property of said mayor and city council of Baltimore, with the right of each of said clubs to use and occupy same, in strict accordance with the terms hereof, as the tenants of the said mayor and city council of Baltimore, it being agreed that so long as said clubs shall occupy the said buildings as tenants, in pursuance hereof, the said clubs will keep their respective buildings in good order and repair, but when, and as often as, the said clubhouses may need painting on the outside, the mayor and city council of Baltimore will furnish the material, and the clubs will furnish the labor for doing said painting. "It is further hereby agreed that, in addition to the payments hereinabove specified, each of said clubs will pay the mayor and city council of Baltimore, in the event of an increase in their respective memberships, the sum of one dollar ($1.00) per annum per member for such increase, the increase to be ascertained as follows: "On the 1st days of January and July in every year, beginning with the year 1915, the clubs will report their membership and will pay the said sum of one dollar ($1.00) per annum for such increase in membership as may be represented by the difference between the present membership and the average which will be shown by adding the membership on January 1st and July 1st in each year and dividing it by 2; it being hereby agreed that the present membership of each of said clubs is as follows: Arundel Boat Club.... Corinthian Yacht Club.. Maryland Motorboat Club. Ariel Rowing Club..... to be placed, in which event this contract will be terminated, and neither party will be liable to the other, except to the date of such termination. "In the event that either or any of said clubs shall fail to make the payments herein required to be made by each of them to the mayor and city council of Baltimore, the said mayor and city council of Baltimore shall have the right to distrain upon any of the property of said club so in default, and sell the same, or pursue any ordinary remedy for the recovery of the amount so due, or terminate the agreement and take possession of the club building, and have the right to use either or all of said remedies at the option of the said mayor and city council of Baltimore. "It is further understood and agreed that the mayor and city council of Baltimore shall have the right, either through regulations of the park board, approved by the board of estimates, or by ordinance, to make all reasonable and proper regulations in reference to the use of said club buildings and the conduct of the members of said clubs, respectively, and to impose appropriate liquidated damages or penalties for the violations of such rules and regulations, and also with the right, for repeated violations of said rules or regulations, to cancel the contract and take possession of the clubhouse of the club to which the member so offending belongs. -"It is further understood and agreed that the members of each of said clubs shall have the right to the use of said protected water for the mooring of boats of said clubs or their members under such reasonable rules and regulations as may be prescribed by ordinance, or by the harbor board, with the approval of the board of estimates, without any charge. "And it is further understood and agreed that at the expiration of the twelve years provided for in this contract as to three of said clubs, and of the eighteen years as to the fourth, the said clubs and each of them shall pay to the mayor and city council of Baltimore the annual rental, as tenants from year to year, of five hundred dollars ($500.00) per year, in quarterly installments, for the use and privilege of the buildings and space occupied by the respective clubs, said tenancy from year to year to continue during the pleasure of the city, the city having the right to terminate same upon giving ninety days' notice before the expiration of any current year." .250 100 This agreement was disapproved by the 150 board of park commissioners, and a dispute 250 arose between it and the board of estimates "It being, however, understood and agreed as to the removal of the building, its location that before this payment of one dollar ($1.00) in the park, and the use to which it should per annum per member attaches to the Corinthian Yacht Club it shall be permitted to have fifty (50) additional members, that is to say, that it will pay annually on the excess above 150 members; and, in like manner, before this provision attaches to the Maryland Motorboat Club it shall be permitted to get fifty (50) additional members, and the payment hereinabove specified to apply, as to that club, only to the excess above 200 members. be devoted. The board of estimates wanted it fitted up and used by the Corinthian Yacht Club under the terms and conditions stated in the final draft of the agreement above set out; the board of park commissioners wanted it located at a different site in the park and used for a different purpose. Pending this dispute the United States government was insisting that the building be removed from the site of the immigration station in order that it might proceed with its work there. The board of park commissioners proposed to surrender the building to the government, in which event it would be "It is further hereby understood and agreed destroyed. It was the property of the city, that this entire contract is subject to the pos- and was of considerable value, and the board sibility of United States government retaking possession of Ft. McHenry and the grounds on of estimates wanted to preserve it. On June which the clubhouses are hereby contemplated 11, 1915, it addressed a letter to Mr. William "It is further hereby understood and agreed that each of said clubs will indemnify and save the mayor and city council of Baltimore and the board of park commissioners harmless from any and all claims for damages which may be caused by any act, negligence, or default of any of said clubs, or any of the members of said clubs, in or about the clubhouses and landings berein referred to. S. Manning, general superintendent of public, parks, notifying him "to arrange with the lowest bidder to move the old canteen building from its present location, where it interferes with the proposed plans of the Immigration Commission, over to any point that may be selected by the board of park commissioners south of the row of houses which fronts on the main entrance of the fort, and allow this canteen building to remain standing at this location until its final location is determined. Two locations have been marked in red 'A' and 'B,' on the inclosed blueprint, which would not interfere with any of the present improvements at Ft. McHenry or be unsightly, and from either of these two points it would not be difficult to transport the building to its final location." In its reply to this letter the board of park commissioners, in a letter dated June 19, 1915, stated that after full discussion it was the sense of the board that it would be in advisable to move the building to a tempo rary location. It stated that: "The cost of removal to a temporary location would be substantially the same as moving the building to a final location, and in addition there would probably be an additional cost for shoring up the building in the temporary location. Our judgment is that the canteen building should be used for public recreational activities-including dancing and swimming-and if so used it should be located at the location mentioned in Mr. Manning's letter to you of May 25th. This location would be the most convenient one if the building is to be devoted to the purpose above mentioned because of its nearness to the entrance of Ft. McHenry, and also because of its proximity to what would be the natural place to be selected for a bathing beach. "Under these circumstances we do not think that it would be expedient to remove the building to either of the points 'A' and 'B' mentioned in your letter. If this suggestion of ours as to location does not meet with your approval, upon reconsideration of the topic we would suggest that in view of the desire of the federal government to obtain immediate possession of the site for the immigration station that we give up our contract for the purchase of this building so that the government may demolish or remove this building as it sees fit in order to make room for the new improvements." contract to Thos. S. Spicknall & Son for $2,135.00 for removing the old canteen building at Ft. McHenry, and also contract for approximately $1,800 for installing the necessary foundation and brick wall to receive the building and bring boathouse scheme, making a total of $3,935.00 same up to proper elevation, as required by the which is to be charged to the contingent fund. The city engineer was authorized to proceed with this work at once without the formality of advertising and awarding of contract by the board of awards, because of the emergency of the case, the United States government requir ing immediate action." Foundations, were prepared for the reception of the building, and the contractor began its removal under the supervision of the city came necessary to change two arc light wires engineer. In removing the building it bein the park. Before changing these wires the city engineer requested the superintendent of parks to raise the wires or give him permis sion to do so, but this request was refused. Mr. Field testified that in order to prevent the building from being torn down by the national government, or else, if that was not done, to run the risk possibly of losing the immigration station: "The board of estimates decided that they would take the necessary money out of their contingent fund and move the building over to the south side of Ft. McHenry, where it could be used for the boat clubs, and then we expected in some way provision would be made next year in the ordinance of estimates for putting these boat club buildings all down there and putting them in shape and moving those boat clubs to this beautiful Riverside Park. I do not say it is very beautiful now, but it can be made very beautiful on a very high bluff overlooking the river for miles. It is the only riverside park in Baltimore, and it is a great thing for the city, in my judgment, to get that valuable land from the government without costing us anything, and every member of the board thought that it would be a great addition to the park, greatly popularizing the park, and making it very much more enjoyable for the public who would go to the park if they could have these boat clubs down there." Mayor Preston in his testimony said: The board of estimates disapproved of the "The situation about the canteen building was location of the building selected by the board this: We had agreed with the government-we had purchased the building for something like of park commissioners, and approved the lo- $50. I had had a good deal of correspondence cation selected by the city engineer. It op with the Secretary of War and the Quartermasposed the surrender of the building to the ter General, and they were hurrying it, and they government, and took up directly with the wanted to award the contract, and they intimated to me that the presence of the canteen buildfederal authorities the question of its re- ing there was interfering with the awarding of moval. The differences between the two the contract, and they pinned me down to the boards being irreconcilable, the board of es- question of when we could get it away, and I timates determined, against the wishes of could not be done in that time, and the contract said in 30 days, and I notified them again it the board of park commissioners, to move for this big structure there was largely dependthe building to the place of its own selection ent on the removal of that building. We felt at the expense of the contingent fund. The that the park board would not go along with us. following extracts from the minutes of the I felt that I was under written obligation with the government to get that building out of the board of estimates are hereby transcribed: way, and the correspondence will show thatshow that we had to do something; show we did award a contract for the removal of the building to the water front; and it was our understanding that it had been agreed upon, and when it was gotten off the site of the immigration pier this application was filed by the park board for an injunction, and there it is now held up; a most unseemly position, a controversy between the city and one of its boards as to how an old abandoned building-where it shall be put; it "June 30, 1915. The clerk was directed to notify the city engineer to have the old canteen building at Ft. McHenry moved to its final lo cation heretofore determined by the board of estimates, and to notify the Secretary of War that the city has contracted for the removal of the buildings. The work is to be done by Thos. F. Spicknall, and the expense is to be charged to the contingent fund. "July 6, 1915. The city engineer's recommen a very small thing. We had to move to keep faith with the government to get that building off the site. They wanted to use the site for the building they were constructing, and every week or two I would get a letter to get rid of the building-to clear the site. Q. And that was the immediate reason why, I presume, the board of estimates passed its order directing the city engineer to remove the building and charge the cost of the removal to the contingent fund? A. Yes. Q. You considered that suggestion in the nature of an emergency, I suppose? A. We had to do it in order to keep faith with the government, and we got a very advantageous price, and we are going to lose a good deal of money by failure to carry it out." There has been no agreement to rent any part of the property to the boat clubs; no contract made for the removal or remodeling of the boat clubs, or the fitting up of this building for the use of the Corinthian Yacht Club. What was intended was to put the building upon the foundations prepared for it, and to do nothing more until this controversy was settled. They did, however, expect that in the future provision would be made in an ordinance of estimates for bringing all the boat clubs to the park upon the terms provided for in the proposed agreement. [1, 2] After the building had been removed for some distance upon and across the park the bill in this case was filed. The relief prayed for was: (1) That the court "may establish and declare that neither the defendant corporation or the board of estimates or any member thereof, or any city official or officials, acting in pursuance of instructions from said board of estimates or otherwise, have or had the right or power, without the consent of the board of park commissioners, to move any building purchased out of park funds, or under the control of the board of park commissioners, or to use or permit the use of such building for private purposes or uses, or to use public funds or property for the removal, relocation, and repair of a public building for the use of any private club, association, corporation, individual, or individuals." so selected, to be used only for public recreational purposes. On the 28th of September, 1915, the circuit court No. 2 of Baltimore city ordered: "That a preliminary injunction be issued enjoining and restraining the defendants and each of them, their officers, agents, and employés, and also any other persons or corporations employed by the defendants or any of them under contract, or otherwise, from moving or permitting to be moved the said canteen building across Ft. McHenry Park, or from locating said building in any location in said park area, or from doing any work on any foundations or structures intended for the use of said building." An answer was filed by the defendants and testimony was taken in open court, and on December 11, 1915, the court passed an order dissolving the injunction and dismissing the bill, and ordered that the costs be paid by the defendants. From this order the plaintiffs have appealed. The brief of the appellees contains the terms of an agreement entered into between the parties by which it was provided that pending this appeal the defendants might move the canteen building from its present location and place it on the foundations prepared for it. But that agreement does not appear in the record. Its omission, however, does not change the legal or equitable rights of the parties. The discussion in the brief and in the oral arguments relate to some questions which the record does not present and which it is not now necessary to decide. Keeping in mind the well-established principles that the right to an injunction is not ex debito justitiæ, and that the application for injunction is addressed to the sound conscience of the chancellor, acting upon all the circumstances of each particular case, we think the order of the court below should be affirmed. [3, 4] Considering the bill as a taxpayer's bill to restrain the unauthorized acts of the (2) That the court "may establish and de- defendants, we fail to see, under the circumclare that neither the defendant corporation, nor the board of estimates, nor any city official oth-stances of the case and under the well-settled er than the board of park commissioners, have principles applicable to such suits, how the or had the right or power to move buildings bill can be sustained. It is true that the law across parks, or locate buildings in parks, or is firmly settled, as was said in Baltimore v. interfere in any wise with the care and control of public parks vested by the law in the board Gill, 31 Md. 375: of park commissioners." (3) That the defendants and each of them, their officers, agents, and employés, may be enjoined and restrained by an injunction issuing out of this honorable court from moving or permitting to be moved the canteen building hereinbefore mentioned across that portion of the said Ft. McHenry tract dedicated by law to use as a public park, or from locating said building in any location in said public park area, or from using or permitting the use of said building or of any portion of said park area for or by any club, corporation, association, or individual or individuals for private purposes, and from using or permitting the use of public moneys for the removal of said canteen building, and the repair of the same for the use of any private club, association, or corporation; that the defendants and each of them, their officers, agents, and employés, be required by said injunction either to remove said canteen building from said portion of said Ft. McHenry tract dedicated by law to use as a public park, or else to remove it to a site to be selected by the board of park commissioners, said building, if removed to said site That "in this state the courts have always maintained with jealous vigilance the restraints and limitations imposed by law upon the exercise of power by municipal and other corporations, and have not hesitated to exercise their rightful jurisdiction for the purpose of restraining them within the limits of their lawful authority, and of protecting the citizen from the consequence of their unauthorized acts," and that taxpayers "may invoke the restraining powers of a court of equity, and that court will entertain jurisdiction of their suit against municipal corporations and their officers whenever the latter are shown to be acting ultra vires, or are assuming or exercising a power over the property of the citizen, or over corporate property or funds which the law does not confer upon them, and where such unauthorized acts may affect injuriously the rights and property of the parties complaining.' St. Mary's Industrial School v. Brown, 45 Md. 310. These principles have been announced in many cases in this court and elsewhere, and they establish the proposition that an injunc tion to restrain the ultra vires or illegal acts of municipal corporations or official officers will not be granted unless it appears that the taxpayer would be injured by the acts complained of. The facts disclosed by the record do not bring the plaintiffs' case within this principle. It is difficult to say how they could possibly be injured by the expenditure of public money for the protection and conservation of public property. Unless the building had been removed it would have been destroyed by the national government, and the act complained of was in fact to the benefit of the taxpayers of the city. Appeal from Circuit Court, Baltimore County; Frank I. Duncan and Allan McLane, Judges. "To be officially reported." Action by George W. Easter and wife against the Overlea Land Company of Baltimore County. Judgment for defendant, and plaintiffs appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. Henry M. Nitzel and Richard S. Culbreth, both of Baltimore, for appellants. Edward H. Burke, of Towson (C. Alex. Fairbank, Jr., of Baltimore, on the brief), for appellee. PATTISON, J. This is an appeal from a judgment for the defendant in an action at law, brought in the circuit court for Baltimore county, by the appellants against the appellee. The sole question for review is presented by the appellants' exception to the ac entering judgment thereon, without affording the plaintiffs, as they allege, an opportunity to submit to a judgment of non pros. against them. [5] We have no doubt that under Ordinance No. 60, approved July 21, 1860, and confirmed by subsection 16 of the city charter, and under section 91 of that charter, that the charge and control of this park is vested in the board of park commissioners. The charter imposes no obligation upon the board of estimates with respect to the public parks of the city, nor does it confer any pow-tion of the court in rendering a verdict and er upon it to interfere with the control and management of such parks committed by law to the board of park commissioners. The assertion of such power by the board of estimates must be held to be wholly unauthorized. But, when the court below came to deal with the case, it was informed by the evidence that the building had been moved upon the park property and propped upon blocks, and presented an unsightly appearance. In this situation the court permitted its removal to the foundations prepared for it, and it is now probably located upon those foundations.tute the whole evidence in the above-entitled Certainly no real injury was done to any one. The building, under the city charter, is now in the charge and control of the board of park commissioners, and it will have ample opportunity to avail itself of all lawful means and remedies to protect its rights in respect to the building against any further invasions. Order affirmed, the costs to be paid by the appellants. (128 Md. 99) EASTER et ux. v. OVERLEA LAND CO. OF BALTIMORE COUNTY. (No. 102.) Under Code Pub. Civ. Laws, art. 75, § 173, as added by Acts 1914, c. 432, declaring plain: tiff not entitled to dismiss his action or submit to a voluntary judgment of non pros. after argument on the facts has begun in a case tried before a jury or the court sitting as a jury, such a case having, at plaintiff's request, been argued at the same time both on the prayers and the facts, and submitted for final decision, without any request by him for opportunity to suffer a nonsuit if the rulings on the prayers be against him, such right is lost to him. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 100-102; Dec. Dig. 50.] The material facts set out in the exception are these: The attorneys for their respective clients on March 8, 1915, entered into an agreement in which are found the following provisions: That all the testimony and exhibits taken and filed and returned by the examiner in the equity case in the same court and between the same parties, "shall consti case, and shall be considered and taken in the same manner as if given by witnesses under oath in open court, or as introduced in the usual and ordinary way in the trial of cases, either before a jury or the court sitting as a judge and jury"; that the "case upon the evidence aforesaid shall be tried and argued before the court, sitting as a judge and jury; that on the day of argument, to be hereafter fixed by the court, the plaintiffs and defendant by their respective attorneys shall be at liberty to submit whatever prayers or instructions they may deem proper; and that, with the court's permission, argument on said prayers or instructions and on the facts as gathered from said evidence shall be made jointly." The court at such time announced that it "would read the tes timony, and that a day would be named on which counsel would have the opportunity to offer prayers, and to argue them and the facts of the case, of which day counsel would receive due notice." The 27th day of May, 1915, was the day fixed for such argument, and the counsel were so notified. On that day the counsel for the respective parties appeared, and the plaintiffs offered four and the defendant nine prayers. Three of the defendant's prayers, in effect, asked that the case be withdrawn from the consideration of the court sitting as a jury, because of the | portunity to determine whether he would want of legally sufficient evidence to entitle take a nonsuit or hear the verdict, and it was the plaintiffs to recover, and it was suggest- at such time that he was required to make ed by counsel for the plaintiffs that, “as the his election. If he failed to answer in perprayers made it necessary in arguing them son or by counsel, the verdict was not taken, to argue all the facts of the case, argument the jury was discharged, and a judgment of on prayers and facts be made jointly, and, nonsuit entered against him; but, if he anthe court consenting, it was so agreed, with-swered, and the verdict was taken, his right out any reference to said written agreement to suffer a nonsuit ceased with such answer by any one." The case was then fully ar- and verdict; and it was held by this court in gued by all the counsel in the case on the Hall v. Schuchardt, 34 Md. 19, that: facts as well as upon the prayers offered. "At the conclusion of the argument, the court asked if there was any exception to the testimony, to which question counsel for both sides replied 'No.' Thereupon the court asked counsel for the plaintiffs to supply the court with the references to the testimony in the record as to the west side of Lange's Lane," and the case was then submitted to the court by both plaintiffs and defendant for final determination. Thereafter on June 8, 1915, counsel for the . plaintiffs wrote to Judge McLane, saying: "In compliance with the request of the court, we inclose a copy of so much of the testimony in the case of Easter v. Overlea Land Company as relates to the width, etc., of Lange's Lane with special reference to the west side, and we have sent a copy to counsel for the defendant. Are we right in assuming that the court will give us notice of its intention to pass upon the prayers and to decide the case, in order that we may take such action as may appear to us to be proper?" On the 12th of June, 1915, without notice to the plaintiffs or their counsel, the court delivered to the clerk of the court "the prayers, granted and refused, and a paper on which was written, 'Verdict for the defendant,' signed by Judges Duncan and McLane." To the action of the court in passing upon the prayers, and at the same time rendering a verdict for the defendant upon the facts of the case, “in the absence of and without notice to the plaintiffs or their counsel, thereby depriving the plaintiffs of the opportunity to suffer a judgment of non pros.," the plaintiffs excepted. This as we have said is the only exception before us. It is upon Acts 1914, c. 432 (section 173 of article 75 of Bagby's Code), that the question here presented is to be determined. This statute provides that: "In all trials of actions at law in the courts of this state it shall not be necessary to call the plaintiff before the verdict is rendered; nor shall the plaintiff be entitled to dismiss his suit or submit to a voluntary judgment of non pros. after argument upon the facts has begun in cases tried before a jury or before the court sitting as a jury; but the plaintiff shall have the same right to dismiss such case or submit to a voluntary judgment of non pros. thereon up to the time when such argument on the facts has begun as before the enactment of this section." Prior to the passage of this act it was the established practice in the trial of jury cases to call the plaintiff when the jury had agreed upon its verdict, and before the verdict was "The submission of a cause to the court for trial where the judge acts both as court and jury does not deprive the plaintiff of his right to a nonsuit, and care should be taken to so conduct the trial as to afford him the same opportunity of exercising it as if a jury were sworn.' The practice has been materially changed by the aforegoing statute. The plaintiff is no longer called, and his right to submit to a voluntary judgment of non pros. must now be exercised before the argument upon the facts is begun. The statute expressly states that the plaintiff shall not be entitled to dismiss his suit or submit it to a voluntary judgment of non pros. "after argument upon the facts has begun in a case tried before a jury or before the court sitting as a jury." It was agreed in writing by the counsel of the respective parties that certain testimony taken in a designated chancery proceeding between said parties should constitute the whole evidence in the case before it, and that upon such evidence the case should be "tried and argued before the court sitting as Judge and jury," and that on the day of the argument the counsel for their respective clients should be permitted to offer prayers or instructions, and with the court's permission and on the facts as gathered from said evithe "argument on said prayers or instructions dence should be made jointly." Pursuant to this agreement the court named a day for the argument, and on that day it was asked by plaintiff's counsel to hear argument, not only upon the prayers, but also upon the facts of the case. The court consented thereto, and the argument was made upon both the prayers and facts of the case, and at its conclusion the case was submitted to the court by both plaintiffs and defendant for final determination. If the plaintiffs had wished to reserve their right to submit to a judgment of non pros. until the court had ruled upon the prayers, they should not have argued the case upon the facts when they did, for by so doing such right was lost to them under the stat ute. The plaintiffs, as disclosed by the exception, never asked for an opportunity to suffer a nonsuit in the event that the rulings of the court upon the prayers were against them, but it was at their express request that the court heard argument both upon the prayers and the facts of the case, and they should not now be heard to complain of the court's refusal to allow them to submit to |