text:
    WILLIAM EDWARD YOUNG v. STATE OF MARYLAND
    [App. No. 78,
    September Term, 1975.]

      Decided November 3, 1975.

    Before Orth, C. J., and Moylan and Lowe, JJ.
   Orth, C. J.,

delivered the opinion of the Court.

Unlike the usual situation, in which a determination of defective delinquency is stridently protested and vehemently fought, we have here a felon, convicted and incarcerated, who believes he is a defective delinquent and is aggrieved because an examination and evaluation he seeks to establish it have not been afforded him.

STATEMENT OF THE CASE

On 9 May 1967 at a bench trial in the Circuit Court for Baltimore County, William Edward Young was convicted of murder in the first degree and assault with intent to rape. On 12 May 1967, a life sentence was imposed on the murder conviction and a concurrent sentence of 20 years on the aggravated assault conviction. The judgments were affirmed on direct appeal. Young v. State, 4 Md. App. 286 (1968), cert. denied 251 Md. 753.

Following the penalty stage of the trial, the court ordered that Young be examined to determine if he was a defective delinquent. Upon evaluation by the Patuxent Institution Staff he was determined not to be a defective delinquent, and on 14 September 1967 the court ordered that he be transferred to the Maryland Penitentiary with full credit for time spent in Patuxent.

After several collateral attacks on the judgments entered on the substantive offenses, in the main unsuccessful, there was filed, on 10 June 1975 in the Circuit Court for Baltimore County, in proper person, over Young’s signature, a “Motion for Court Order for Examination at Patuxent Institution.” He noted in the Motion that, upon being sentenced, the court on its own motion referred him to Patuxent Institution for evaluation and that he “was at that time not recommended for commitment to Patuxent by the staff thereof and was then returned to the Department of Corrections.” He alleged that “in the interim eight (8) years of confinement at the Maryland Penitentiary [he] has regressed both psychologically and emotionally to the point where he now fits the description of a defective delinquent and meets the criteria established therefor as defined in Section 5 of Article 31B, Annotated Code of Maryland.” He explained that “the nature and attendant circumstances of the crimes for which [he] was tried and convicted and for which he has been and remains confined have had recurrent and regressive psychological ramifications for [him].” Claiming that there was “ample reason to believe” that he was a defective delinquent, he prayed the issuance of an appropriate order pursuant to the provisions of Code, art. 31B, for examination and reevaluation at Patuxent. The court denied the Motion by an order issued 9 June 1975 and filed the next day.

In a memorandum opinion included in its order, the court referred to Code, art. 31B, § 7 (a):

“ ‘If the substance of the report (request for examination) is that the said person is not a defective delinquent, he shall be retained in custody of the Department of Correction under his original sentence as if he had not been examined for purposes of defective delinquency.’ ”

It quoted Eggleston v. State, 209 Md. 504, 511 (1956):

“ ‘It would appear that under this sweeping language, jurisdiction, once properly obtained would continue until the purposes to be served by the examination were accomplished, regardless of the original sentence.’ (Emphasis added)”

It ruled:

“Applying the above statute and judicial language, this Court can only conclude that once the examination was completed and a determination had been made that Mr. Young was not a candidate for the Patuxent Institution, the Circuit Court for Baltimore County lost its statutory jurisdiction under Article 31B.
Therefore, this Court is persuaded that any further requests for examination should be addressed by Mr. Young to the Department of Correctional Services and not to this Court.”

On 3 September 1975 Young, in proper person, applied for leave to appeal from the order of 9 June 1975.

THE STATUS OF THE APPLICATION FOR LEA VE TO APPEAL

The Court of Special Appeals has only such jurisdiction as the General Assembly grants it. From its inception, it was given appellate review of any defective delinquent proceeding. Acts 1966, c. 12, §§ 1 and 5, codified as art. 31B, §§ 11 and 12. See Courts Art. § 12-308, formerly Code, art. 5, § 5 C, as amended from time to time. A party in a defective delinquent proceeding, however, does not have an absolute right of appeal. There are separate statutory provisions regarding such proceedings which render inapplicable Courts Art. § 12-301, providing generally for the right of appeal from final judgments. These statutory provisions are codified as art. 31B, § 11, and implemented by Maryland Rule 1094.

Code, art. 31B, § 11, provides, inter alia: “From any court order issued under the provisions of § 9, or of § 10, within thirty (30) days after the passage of the order, application may be made to the Court of Special Appeals for leave to appeal from the order.” Thus, the appellate review of a defective delinquent determination, for an indigent or non-indigent, is discretionary with this Court. Carter v. Director, 10 Md. App. 247, 250 (1970).

Not only is the right to appeal qualified, but what may be appealed from is limited. As we have indicated, application for leave to appeal authorized by § 11 may be made only from “any court order issued under the provisions of § 9, or of § 10 . . . .” Section 9 provides for an order by the trial court when upon hearing the court or the jury, as the case may be, finds the defendant (1) not to be a defective delinquent, subsection (a), or (2) to be a defective delinquent, subsection (b). Section 10 (a) provides for an order by the trial court upon a redetermination of defective delinquency when the defendant is found by the court or jury upon hearing (1) to be a defective delinquent, or (2) not to be a defective delinquent. It is clear that the application for leave to appeal before us is not within the ambit of § 11. The order here sought to be reviewed is not one entered by the trial court upon a determination or redetermination by the court or the jury upon hearing that Young is or is not a defective delinquent. Rather, it is from a denial of a motion by Young to be examined and evaluated for possible defective delinquency. We have previously held that there is no statutory right to contest the order of the court below that a defendant undergo an examination for possible defective delinquency. Bosley v. State, 14 Md. App. 83, 91 (1972). We now hold that there is no statutory right to contest an order of the court below denying a request- that a defendant undergo an examination for possible defective delinquency. There is no authority to permit an application for leave to appeal from such an order. We conclude that the application by Young must be dismissed as not allowed by law.

REQUEST FOR EXAMINATION FOR POSSIBLE DEFECTIVE DELINQUENCY

Our holding disposes of this appeal. But we think it advisable for the guidance of the lower court in its future considerations to give our view were we to decide the case upon its merits. See Larsson v. J. C. Conley Constr. Co., 260 Md. 21 (1970); Rossen v. Novak, 259 Md. 508 (1970).

It is patent that Young, having been convicted and sentenced in a court of this State, for a crime committed after 1 January 1954, coming under one or more of the categories designated by Code, art. 31B, § 6 (a) was a person with respect to whom a request may be made for examination for possible defective delinquency. Section 6 (b) expressly authorizes the person himself to make a request for such examination. When a request for examination is made “the court may order such person to be examined by the institution for defective delinquents to ascertain if he or she is a defective delinquent.” Id. With two exceptions, there is no limitation as to when a request for examination may be made. “Such an examination may be requested and made at any time after the person has been convicted and sentenced for a crime or offense specified hereinabove in this section, provided that the said person has been sentenced to a period of confinement in a penal institution or is then serving such a sentence. No such examination shall be ordered or made if the said person has been released from confinement for the particular crime or offense of which he was convicted or who is within six months of the expiration of his sentence.” Section 6 (c). Section 6 (d) provides in relevant part:

“The request for such an examination shall be by petition filed with the court having custody of or jurisdiction over the said person, stating therein the reasons for suspecting or supposing the presence of defective delinquency in the said person.”

Section 6 (e) prescribes, among other things, the jurisdiction of the defendant: “The court which last sentenced the defendant, whether or not the term of court in which he was sentenced has expired shall retain jurisdiction of the defendant for the purpose of any of the procedures specified in §§ 6, 7, 8 or 9 hereof, except that the Criminal Court of Baltimore City and the Circuit Court of Anne Arundel County shall for such purposes have jurisdiction of a person last sentenced by the Municipal Court of Baltimore City and the People’s Court of Anne Arundel County, respectively.” It is specified in § 7 (a) that “If the substance of the report is that the said person is not a defective delinquent, he shall be retained in the custody of the Department of Correction under his original sentence as if he had not been examined for possible defective delinquency.” Section 7 (a) further concerns who shall make the examination and the report of its findings, and § 7 (b) permits additional examinations by a practitioner of psychiatry of the subject’s own choice in certain cases. Section 8 (a) requires a hearing when the report of the institution for defective delinquents reports that the person examined is a defective delinquent and §§ 8 (b) and (c) relate to the procedural aspects of the hearing.

We conclude that Young’s petition for examination was fully in accordance with the law above summarized. Eligible to be a defective delinquent by reason of his conviction and sentence, Young filed his request for examination of possible defective delinquency in proper form in the court having jurisdiction over him as the court which last sentenced him, within the time such requests may be made. Although it is within the discretion of the court to order an examination upon proper request, we think that such discretion must be soundly exercised. The judge below did not exercise this discretion. He found the court did not have jurisdiction to entertain the request for examination and suggested that any further requests be addressed “to the Department of Correctional Services and not to this Court.” He was wrong. It is correct that upon the initial opinion of Patuxent that Young was not a defective delinquent, the Department of Correctional Services retained custody of him under his original sentence as if he had not been examined for purposes of defective delinquency. But, the law is clear, as our reference to § 6 (e) shows, that “The court which last sentenced the defendant, whether or not the term of court in which he was sentenced has expired shall retain jurisdiction of the defendant for any purpose of any of the procedures specified in §§ 6, 7, 8 or 9 ... .” It is only that court which can order an examination. The Department of Correctional Services is without authority to do so, and a request to it for examination is not permitted by the law, is not contemplated by the law and would, therefore, in any event, be futile. The language of Eggleston v. State, supra, quoted by the court below does not support its conclusion. The “sweeping language” referred to in Eggleston is that portion of § 6 (e) which we above set out.

The short of it is that we think that Young’s request for an examination for possible defective delinquency was properly before the Circuit Court for Baltimore County. The court should have disposed of the request by a sound exercise of judicial discretion directed to the end of accomplishing the manifest purposes of the defective delinquency law. We observe that a request may be made “on any knowledge or suspicion of the presence of defective delinquency” in a person, § 6 (b), and that the request need state only “the reasons for suspecting or supposing the presence of defective delinquency. ...” § 6 (d). (emphasis added).

Application for leave to appeal dismissed.

      . Hereinafter “court” shall mean the Circuit Court for Baltimore County unless otherwise indicated.

      . On 24 June 1970 Young attacked the judgments by way of a petition under post conviction procedures. Relief was denied by order of the court issued 30 March 1971, and application for leave to appeal therefrom was denied by this Court. Young v. Warden, No. 37, September Term, 1971, filed 8 September 1971, unreported. On 6 April 1971 he filed another petition under the Uniform Post Conviction Procedure Act, and on 7 May 1971 the petition was dismissed by order of the court. On 6 October 1971 he petitioned for the issuance of a writ of habeas corpus. On 18 November 1971, the court refused to issue the writ, and on 27 January 1972 we dismissed an application for leave to appeal therefrom. On 4 March 1974 he filed another post conviction petition. On 8 March 1974 the court found that Young was entitled to the relief therein prayed, and, in furtherance thereof, directed the Clerk of the court to issue an amended commitment so that the sentence imposed in each of the murder case and the assault case commenced as of 20 October 1966.

      . The motion was accompanied by a “Motion for Leave to Proceed in Forma Pauperis and Request for Assignment of Counsel”, supported by affidavit.

      . It seems that a similar motion had been filed in the court by Young on 9 October 1973. He alleges that he received no response thereon. On 13 December 1974 he filed a “Petition for Writ of Mandamus” in this Court, and we denied it on 17 December for lack of jurisdiction. He sought a writ of certiorari by the Court of Appeals from our denial, and on 29 January 1975 that Court declined to issue it. There followed the Motion stamped as received in the Circuit Court for Baltimore County on 10 June 1975. Patently, in light of the date of the order denying it, the court had it in its possession before it was formally entered in the court records.

      . By amendment to art. IV, §§ 1 and 14A of the Constitution of Maryland, proposed by Acts 1966, c. 10 and ratified 8 November 1966, there were included in the Judicial power of this State “such intermediate courts of appeal, as shall be provided by law by the General Assembly...”, leaving details to be established by statute. By Acts 1966, c. 11, codified as art. 26, § 130, now Courts Art. § 1-401, the General Assembly created an intermediate court of appeal to be known as the “Court of Special Appeals.” The history of its creation is traced in 1 Maryland Appellate Reports, pages V — LXXIX. Its jurisdiction at first was in the main confined to criminal cases from the circuit courts and the Criminal Court of Baltimore where the sentence was other than death. The General Assembly gradually expanded the jurisdiction, however, so that today it embraces virtually all direct appeals from the circuit courts of the counties and the Supreme Bench of Baltimore City. Courts Art. § 12-308. See Acts 1970, c. 99, § 2; Acts 1972, c. 361, § 2 and e. 392, § 2; Acts 1973, c. 56, § 2. For exceptions see Courts Art. § 12-307.

      . The limitations on the absolute right of appeal are not constitutionally offensive. Director v. Daniels, 243 Md. 16 (1966); Rice v. Director, 238 Md. 137 (1965); Walker v. Director, 6 Md. App. 206.
      Courts Art. § 12-202 provides: “No review by way of certiorari may be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted:... (2) Leave to prosecute an appeal in a defective delinquent proceeding;....”
      Code, art. 31B, § 11 further provides: “The application for leave to appeal shall be in such form as the Court of Appeals may, by its rules, prescribe.” Maryland Rule 1094, § a deals with the application — how it is to be made and the time for the filing of it, subsection 1; the content of it, subsection 2; what the record shall contain, subsection 3; the service of the application, subsection 4. Section b authorizes this Court to require additional information, including any portion of the stenographic transcript of the trial. Section c spells out the procedure if leave to appeal is granted.

      . Five categories are set out:
      “(1) a felony; (2) a misdemeanor punishable by imprisonment in the penitentiary; (3) a crime of violence; (4) a sex crime involving: (a) physical force or violence, (b) disparity of age between an adult and a person under eighteen years of age, or (c) a sexual act of an uncontrolled and/or repetitive nature; (5) two or more convictions for any offenses or crimes punishable by imprisonment, in a criminal court of this State.”

      . Request may be made also by “the Department of Correction or by the State’s attorney or assistant State’s attorney who prosecuted the person for a crime or offense specified hereinabove in this section, or any knowledge or suspicion of the presence of defective delinquency in such person,” and by such person’s attorney in his behalf. The court may order the examination on its own initiative. Art. 31B, § 6 (b).

      . It seems that amendment is required to reflect the status of the District Court of Maryland.

      . As we above indicated § 6 (b) states: “Whenever a request for examination comes from any such source the court may order such person to be examined by the institution for defective delinquents to ascertain if he or she is a defective delinquent.” (emphasis added)

      . The court had the statutory jurisdiction and duty to entertain the request but the grant of it was within its sound discretion.


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    HELEN GREEN v. COPPERSTONE LIMITED PARTNERSHIP
    [No. 40,
    September Term, 1975.]

      Decided November 4, 1975.

      The cause was argued before Menchine, Lowe and Melvin, JJ.

      Steven J. Fox and Gerald R. Walsh, with whom were Talkin & Abramson on the brief, for appellant.

      Louis A. Becker, with whom were Lewis Straughn Nippard and Sybert, Sybert & Nippard on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

This case reaches us on certiorari to the Circuit Court for Howard County. The litigation had been initiated by Copperstone Limited Partnership (Landlord) against Helen Green (Tenant) in the District Court for Howard County by a Complaint in Ejectment-Tenant Holding Over, under Real Property Article § 8-402 of the Annotated Code of Maryland. After hearing in the District Court, judgment of restitution of leased premises to the landlord was extended. Tenant appealed to the Circuit Court for Howard County. After hearing on appeal, monetary judgment against tenant and a warrant of restitution to landlord was entered in the Circuit Court. A stay of execution of judgment was granted pending petition for certiorari.

Tenant occupied apartment 4 of 5858 Stevens Forest Road, Columbia, Maryland under a written lease executed by both landlord and tenant. The lease, dated December 17, 1971, was for the term of twelve (12) months beginning on that date, at a monthly rental of $137.00. Landlord and tenant agreed that the fair market rental of the premises was $215.52 monthly. Paragraph 4 of the lease read as follows:

“4. Unless terminated as provided herein, this lease shall be automatically renewed for successive terms of one month each at the aforesaid rental, subject to adjustment as herein provided, payable in advance without demand on the first day of each month. Either party may terminate this lease at the end of the initial term or any successive term by giving 30 days written notice in advance to the other party.”

After tenant had continued in possession under that lease for almost three years she received the following letter by certified mail:

“September 5,1974
Ms. Helen Green
5858-4 Stevens Forest Road Columbia, Maryland 21045
Dear Ms. Green:
This letter is to constitute a thirty-day (30-day) written notice of our intent to terminate the month-to-month lease agreement between yourself and Copperstone Limited Partnership, as called for in Page 2, Paragraph 4, of your lease for the unit at 5858-4 Stevens Forest Road, and to notify you that you must vacate the premises on or by October 31, 1974. Should you fail to do so, you will be considered a tenant holding over, and appropriate measures will be instituted.
It is our duty, under the law, to advise you that if you hold over beyond the expiration of this term ending October 31, 1974, you can be held liable for double the amount of rent apportioned for the duration of the hold-over.
Your monthly rent for September and October must be paid as usual per your lease agreement. Failure to do so will afford immediate appropriate legal action prior to the October 31st termination date.
Sincerely,
PATRICIA L. WEYHRAUCH
Resident Manager Copperstone Circle Apartments.”

When tenant refused to vacate the premises on October 31, 1974, the landlord filed its complaint in the District Court for Howard County seeking restitution of the premises pursuant to the cited provisions of the Annotated Code of Maryland.

For reasons that will become apparent we emphasize at this point that both the notice to the tenant and the complaint against her for restitution as filed in the District Court declared that expiration of the term of the lease was the sole ground for termination of the tenancy, and no other cause was assigned.

The case presents the issues: (a) whether an apartment complex developed pursuant to section 236 of the National Housing Act (12 U.S.C.A. § 1715z-1, et seq.) involves such government action that a landlord must assure due process of law before eviction of a tenant may occur; (b) whether the appellant, as a tenant in such a facility, acquired such a property right as entitled her to the protection accorded by the due process of law provisions of the Fifth or Fourteenth Amendments to the Constitution of the United States; and (c) whether eviction may be based solely upon expiration of a lease.

Appellant tenant contends that procedural due process demands that there be notice of eviction and a hearing to determine if good cause exists for eviction, and that the mere expiration of the term of a lease is not good cause. Appellant concedes that the provisions for a hearing set forth in the Real Property Article § 8-402 comply with procedural due process requirements, if notice and proof at the hearing demonstrate good cause for eviction.

Appellee landlord contends that the litigation is between private parties contesting their respective contractual rights under a Maryland statute authorizing eviction, after notice, when the term of the lease has expired, and that there is no constitutional bar to her eviction.

Section 236 of the National Housing Act, as amended, (12 U.S.C.A. § 1715z-l) is a statutory scheme seeking to achieve improved housing at reduced rentals for low and middle income families. The statutory aim is accomplished in part by governmental rent supplements to some tenants and in part by periodic federal government payments of interest for owners to mortgagees who meet the special requirements of the section. Among project owners authorized to participate in the statutory scheme are limited dividend corporations or other limited entities. Tenants of a section 236 facility include some who receive rent supplement payments; and some whose monthly rent is on a sliding scale, depending on income, not less than a basic monthly rental charge and not more than a fair market monthly rental charge. The tenant in the subject case pays only the basic monthly rental charge but does not receive a rent supplement.

In sum, landlord is a limited dividend owner of a multi-family apartment complex developed pursuant to section 236 of the National Housing Act (Title 12 U.S.C.A. § 1715z-1-6) and tenant derives benefits under that section by virtue of being required to pay only the basic monthly rental of $137.00, rather than the fair market rental of $215.52.

In the subject project twenty-five tenants are subsidized by government provided rent supplements. The remaining one hundred seven tenants pay rent based on income, varying from $137.00 to $215.52 monthly.

Tenant acknowledges that she received the letter notice dated September 5, 1974, supra, and that she executed a lease that included the provisions contained in paragraph 4 thereof, supra. She contends, however, that such paragraph 4 is invalid as applied to tenancies arising under section 236 of the National Housing Act. Landlord acknowledges that the apartment was constructed under section 236 of the National Housing Act, as amended.

That the Fifth and Fourteenth Amendments affect only Federal and State action, and do not relate to the conduct of private individuals is firmly fixed by decisions of the Supreme Court. The Fifth Amendment “is a limitation only upon the powers of the general government.” Talton v. Mayes, 163 U. S. 376, 382, 16 S. Ct. 986, 988, 41 L. Ed. 196, 198. It is not directed against the action of individuals. Corrigan v. Buckley, 271 U. S. 323, 46 S. Ct. 521, 70 L. Ed. 969. The prohibitions of the Fourteenth Amendment “have reference to state action exclusively, and not to any action of private individuals.” Virginia v. Rives, 100 U. S. 313, 318, 25 L. Ed. 667, 669. “It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the Amendment.” Civil Rights Cases, 109 U. S. 3, 11, 3 S. Ct. 18, 21, 27 L. Ed. 835, 839. “It is obvious that [neither] of these amendments prohibited private individuals from entering into contracts respecting the control and disposition of their own property. * * * ” Corrigan v. Buckley, supra, at 330 [972].

Thus, it would appear at first blush that the subject case involves no Fifth and Fourteenth Amendment issue.

There are, however, Supreme Court decisions exemplified by American Communications Asso., C.I.O. v. Douds, 339 U. S. 382, 70 S. Ct. 674, 94 L. Ed. 925, declaring that:

“ * * * when authority derives in part from Government’s thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself.” (at 401, [945])

Thus in Public Utilities Comm. v. Pollak, 343 U. S. 451, 72 S. Ct. 813, 96 L. Ed. 1068, the Capital Transit Company, a privately owned corporation contracted with a privately owned radio broadcasting company for radio programs to be received and amplified in busses operated by the transit company. Protesting passengers who were compelled to listen, argued that their Fifth Amendment right to liberty was infringed. The Supreme Court, although denying that the facts showed violation of Fifth Amendment rights, acknowledged its obligation to pass upon the constitutional issue, saying in 343 U. S. at 461, 72 S. Ct. at 820, 96 L. Ed. at 1076-77:

“It was held by the court below that the action of Capital Transit in installing and operating the radio receivers, coupled with the action of the Public Utilities Commission in dismissing its own investigation of the practice, sufficiently involved the Federal Government in responsibility for the radio programs to make the First and Fifth Amendments to the Constitution of the United States applicable to this radio service.”

adding in 343 U. S. at 462, 72 S. Ct. at 820, 96 L. Ed. at 1077:

“We find in the reasoning of the court below a sufficiently close relation between the Federal Government and the radio service to make it necessary for us to consider those Amendments.”

Tenant urges that the Fifth and Fourteenth Amendments protect her valuable property right from invasion by action of landlord because the authority of the latter derives “from Government’s thumb on the scales.”

The seminal case involving constitutional limitations upon private owners of apartment projects developed under the provisions of the National Housing Act is that of Joy v. Daniels, 479 F. 2d 1236 (4th Cir. 1973). That case arose under Section 221 of that Act under facts thus summarized by the Court (at 1238):

“On September 2, 1970, plaintiff leased one of defendant’s apartments. The standard form lease provided in relevant part:
‘At the end of one year, lease is automatically renewed from month to month, rent to be payable in advance without demand on first day of each month. Either party may terminate lease at end of term or any successive term by giving 30 days’ notice in advance to other party.’
On September 11,1971, the defendant gave plaintiff 30 days’ notice to vacate, no cause being assigned. It appears that the plaintiff has continued to occupy her apartment on a month-to-month basis, with her tenancy dependent on the outcome of this litigation.
“Section 221(d)(3) of the National Housing Act, 12 U.S.C. § 1715l(d)(3) (1971), is a statutory scheme for encouraging housing for low income families. To participate in this program, defendant was required to conform to a regulatory agreement with the Federal Housing Administration governing, inter alia, the construction, occupancy, and daily operations of the project. The FHA also grants defendant rent supplements for the plaintiff and other tenants under Section 101 of the Housing and Urban Development Act of 1965, 12 U.S.C. § 1701s(b) (1971). Plaintiff, for example, enjoys occupancy of an apartment worth $157.00 per month at a cost to her of $48.00. FHA pays the difference, i.e., $109.00 per month, directly to defendant. As a prerequisite to participation in the rent supplement program, there must be local government approval. 24 C.F.R. § 5.15(c) (1971). The County Council specifically approved rent supplements for Joseph Paul Apartments on August 6,1968.”

The Court, concluding that State action had “ ‘so far insinuated [the state] into a position of interdependence’ with the defendant that the challenged activity ‘cannot be considered to have been so “purely private” as to fall without the scope of the Fourteenth Amendment’ ” declared: (at 1239)

“Accordingly, we hold there is sufficient state involvement to constitute ‘state action’ for purposes of the fourteenth amendment.”

The Court in Joy then discussed in considerable depth the rights of the tenant; the congressional purposes sought to be served by passage of § 221; and the regulations adopted to carry out those purposes, saying at 1239, et seq.:

“The district court concluded that plaintiff had no right of occupancy upon expiration of the term of the lease. Plaintiff contends that despite expiration of the term she may be evicted only for ‘good cause’ and is entitled to the protection of procedural due process in the determination of whether cause exists. Since procedural due process applies only to the deprivation of interest protected by the fourteenth amendment, i.e., liberty and property, we must first determine plaintiff’s substantive rights. See Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); McQueen, 317 F.Supp. at 1128.
“As stated in Board of Regents v. Roth:
‘Certain attributes of “property” interests protected by procedural due process emerge from [the Court’s] decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
‘Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.’
408 U. S. at 577, 92 S. Ct. at 2709.
‘A person’s interest in a benefit is a “property” interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.’
Perry v. Sinderman, 408 U.S. 593, 601, 92 S. Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Thus we must now look to applicable statutes, governmental regulations, and the custom and understandings of public landlords in the operation of their apartments to determine if a public tenant has a ‘property interest’ in a tenancy beyond the term of the lease except for cause.
“When Congress legislated with regard to mortgage insurance benefits which defendant receives, it provided: ‘The Congress affirms the national goal, as set forth in section 1441 of Title 42, of “a decent home and suitable living environment for every American family”.’ 12 U.S.C. § 1701t. This policy of improving the ‘living environment of urban areas’ was also the policy of Congress in enacting the Housing and Urban Development Act of 1965. Pub.L. 89-117, 79 Stat. 451 (Aug. 10, 1965). ‘This [policy] includes adequate, safe, and sanitary quarters. But it also implies an atmosphere of stability, security, neighborliness, and social justice.’ McQueen, 317 F.Supp. at 1130. Cf., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972).
“In addition to the policy statements contained in the relevant funding statutes, Congress has also expressed itself in part on how these programs should be run. ‘No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.’ 42 U.S.C. § 2000d. The policy of this statute, a person’s right to be free of invidious discrimination in federally assisted programs, is contained in many statutes, see, e.g., 42 U.S.C. § 2000a.
‘This legislative establishment of policy carries significance beyond the particular scope of each of the statutes involved. The policy thus established has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law.’
Moragne v. States Marine Lines, Inc, 398 U.S. 375, 390-391, 90 S.Ct. 1772, 1782, 26 L.Ed.2d 339 (1970).
“Not only the statutes, but also FHA regulations authorized under 12 U.S.C. § 1701s(f), imply a right to be free from arbitrary and discriminatory action. For example, 24 C.F.R. § 221.-536 (1971) provides that a landlord in a § 221(d)(3) apartment may not discriminate against any family because of children.
The House Report dealing with the Housing and Urban Development Act of 1965 said, with regard to the rent supplement program:
‘If his income increases sufficiently so that he can pay the full economic rent with 259r of his income, rent supplement payments on his behalf would cease to be made. The tenant could, however, continue to live in the project and would not be required to pay more than the full economic rent.’
H.R. Rep. No. 365, 89th Cong., 1st Sess. (1965), 1965 U.S.Code Cong. and Ad. News, pp. 2614, 2618. This suggests the Congress was contemplating more occupancy entitlement than limited leasehold terms.
“The tenant’s expectation of some degree of permanency, seemingly shared by the Congress, if not by the landlord, is bolstered by ‘custom.’ Just as there may be a ‘common law’ of tenure at a college or university, there may be a common law of tenancy in public housing projects. See Perry, 408 U.S. at 602, 92 S. Ct. 2694.
‘The actual workings of the subsidized housing program must be examined to determine whether there is a reasonable basié for tenants to expect that in normal circumstances they will be permitted to remain in the housing indefinitely. And indeed one finds that the normal practice in subsidized housing, as in private housing, is to permit tenants to remain beyond the expiration of a lease unless a reason has arisen for eviction; termination is the exception, not the rule. Thus tenants do have a reasonable expectation deserving of protection.’
Note, Procedural Due Process in Government — Subsidized Housing, 86 Harv. L.Rev. 880, 905 (1973).” (Footnotes omitted.)

The Court then held: (at 1241)

“In view of the congressional policies of providing a decent home (with stability and security) for every American family, and of prohibiting arbitrary and discriminatory action, bolstered by the FHA regulations and custom, we find in the scheme of the National Housing Act and the Housing and Urban Development Act of 1965 a property right or entitlement to continue occupancy until there exists a cause to evict other than the mere expiration of the lease. We therefore hold that the lease provision purporting to give the landlord power to terminate without cause at the expiration of a fixed term is invalid.”

and added at 1242:

“To allow a quasi public landlord to evict upon expiration of a fixed term is to enable secret and silent discrimination and would wholly emasculate the procedural safeguards of Caulder.

In Joy, supra, decision was grounded upon the Fourteenth Amendment. In the subject record we perceive no evidence of State action or involvement save the use of State statutory eviction procedures. We believe that this circumstance, standing alone, would not constitute such State action as to give rise to Fourteenth Amendment protection. McGuane v. Chenango Court, Inc., 431F. 2d 1189 (2nd Cir. 1970), cert. den. 401 U. S. 994.

Such a conclusion does not, however, resolve the issues that confront us. In Short v. Fulton Redevelopment Co., 390 F. Supp. 517 (U.S.D.C. S.D. N.Y. 1975), a § 221 project; and in Anderson v. Denny, 365 F. Supp. 1254 (U.S.D.C. W.D. Va. 1973), a § 236 project, issues identical to those in Joy were presented. However, the position taken in Joy was sustained in Short and Anderson, not only upon Fourteenth Amendment grounds but also upon Fifth Amendment grounds.

Anderson, supra, is particularly noteworthy because of its discussion of the interdependence of the Federal Government and owners of projects developed under § 236. The Court said at 1256-57:

“The question is thus whether the state or the federal government, or both, have become so involved in the conduct of this otherwise private enterprise that its actions are also the actions of these governments and performed under their aegis without the private body necessarily becoming either their instrumentality or their agent in a strict sense. Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). Decision on this question requires consideration of § 236 of the National Housing Act of 1968 as well as the involvement of the state and local governments in the activities of the defendants.
“The benefits received from the federal government by qualifying as a § 236 project include reduction in the interest rate paid on the mortgage to one percent per annum, rent supplements for 209 of the tenants, provision for up to 959c of the funds needed during construction by the Federal National Mortgage Association in participation with an originating mortgagee, provision for the purchase of the mortgage by the Federal National Mortgage Association or the Government National Mortgage Association upon completion of construction, guaranteed builders’ fees, and certain tax benefits including accelerated depreciation with limited recapture as ordinary income.
“Quite understandably such inducements to private enterpreneurs to encourage them to provide housing for low income families result in federal control. The statute pursuant to which Oak Ridge Gardens qualified for federal subsidies provides that the owners ‘shall operate the project in accordance with such requirements with respect to tenant eligibility and rents as the Secretary may prescribe.’ 12 U.S.C. § 1715z-l(e). In addition, the Secretary is given the power ‘to make such rules and regulations, to enter into such agreements, and to adopt such procedures as he may deem necessary or desirable to carry out the provisions of the statute.’ 12 U.S.C. § 1715z-1(h). Restrictions on the management of § 236 projects are set forth in 24 C.F.R. § 236.1 et seq. The defendants in this case are restricted in the following particulars among others: (1) the amount of rent that may be charged; (2) admission to the project is limited to persons of specified income levels; (3) the landlord cannot discriminate on account of children in a family; (4) preference in admission must be given to families displaced by government activities; (5) the landlord cannot convey, transfer or encumber the property; (6) without written approval of the Federal Housing Administration, the landlord cannot convey a beneficial interest in the property or convey a right to manage it or collect its rent nor can he remodel, add to or destroy a portion of the property; (7) the landlord must maintain the mortgaged property in good condition subject to FHA inspection; (8) the owners cannot voluntarily go into bankruptcy; and (9) the owners must furnish monthly occupancy reports and must answer questions relative to income, assets, liabilities, contracts, operation and condition of the property and the status of the mortgage.”

adding at 1258-59:

“Beyond the mere relationship of Oak Ridge Gardens to the state and federal governments in the form of benefits and regulations, the fact that defendants in effect perform a government function by helping to implement the congressional policy of providing decent housing to low income families makes their actions subject to constitutional limitations. See Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). Related to the theory that defendants are performing a government function is the idea that defendants have the power to deprive their tenants of government benefits. It is clear that tenants at Oak Ridge Gardens must meet certain income requirements and that they receive a government subsidy amounting to the difference in their rental payments and the market value of comparable housing. Eviction of a tenant obviously results in a deprivation of this benefit which can fairly be described as a necessity. It follows that the defendants, by electing to act as a means of distributing these government subsidies, have made themselves government actors for purposes of the Fifth and Fourteenth Amendments. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).”

The Court then said at 1260:

“Accordingly, this court concludes that as a matter of substantive federal law the tenants at Oak Ridge Gardens have a property interest in their tenancies and cannot be evicted except for good cause.
“This substantive right not to be arbitrarily evicted on the mere expiration of a lease, in turn requires that a tenant be afforded the following protections: (1) timely notice specifying the reasons for the eviction; (2) an opportunity to confront and cross-examine adverse witnesses and present his own evidence; (3) the right to retain an attorney; and (4) the right to an impartial decision based solely on the evidence adduced at the hearing.”

In Lopez v. Henry Phipps Plaza South, Inc., 498 F. 2d 937 (2nd. Cir. 1974), although factually dissimilar and invoking other sections of the National Housing Act, the Court spoke with clarity as to evictions solely grounded upon lease termination, saying at 943:

“The federal government, the states and the cities which have extended aid to low and middle income housing hardly expected that a tenant could be evicted at the end of his term simply at the landlord’s whim, when substitute housing could be obtained, if at all, only with delay, disruption in living habits and expense. Cf. Morrissey v. Brewer, 408 U.S. 471, 479, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Purely private housing is, of course, a different matter, see Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972).

The issues now before us have been considered in at least one State Appellate Court. In Appel v. Beyer, 39 Cal. App. 3d Supp. 7, Super., Supp. 15, 114 Cal Rptr. 336, 341, dealing with a § 221 project, the Court concurred with the decision in Joy, supra, but did so on the basis of federal governmental action under the Fifth Amendment. The Court in footnote 9 said:

“In view of our holding that appellants have been denied due process of law because of federal involvement, it is not necessary to consider whether entertainment of these eviction proceedings by our local courts or payment of rent supplements involve ‘state’ action by California or its agencies.”

The decisions in Joy, Short, Anderson and Appel, all supra, are indistinguishable on their facts. The soundness of their reasoning is uncontested by contrary decisions. We shall follow them. In the subject case we are persuaded that the benefits of the landlord and the tenant are the products of government action. As was said in Appel, supra, at Supp. 13 [339]:

“The government is, essentially, the landlord. Without the government, there would be no such low cost housing; with the government, the quality and cost of the housing is such as the government allows.”

Here, the federal government has so far insinuated itself into a position of interdependence with the landlord that it must be recognized as a joint participant in the landlord-tenant relationship. Burton v. Wilmington Parking Authority, 365 U. S. 715, 725, 81 S. Ct. 856, 862, 6 L.Ed.2d 45, 52. Thus, the scope of government involvement brings the subject case within the ambit of the Fifth Amendment. By reason of this the tenant has a property right of entitlement to continued occupancy until there exists a cause to evict other than the mere expiration of the lease. An effort to evict a tenant from a § 236 project without notice and proof of good cause is invalid.

Appellee landlord, asserting an alternative position, asks us to hold that in any event due process was accorded because proper notice and good cause for eviction was shown. There was, indeed, some evidence that the apartment had sustained substantial' physical damage inferentially attributable to the tenant’s misconduct. It was shown also that written demands for payment of the costs of necessary repairs had been made upon the tenant. We have previously pointed out, however, that neither the notice by the landlord to the tenant to vacate, nor the allegations in the complaint by which her eviction was sought had set forth any cause save expiration of the term of the lease. Thus, even if we assume, without deciding, that the conduct of the tenant was such as to justify eviction, neither notice nor pleadings have alleged that cause for such action existed. The tenant is entitled to be explicitly informed of the grounds upon which her eviction is sought. Moreover, the record makes clear that the judgment of the trial court was entered on the basis that the landlord was not required to show more than that the term of the lease had expired and that notice to vacate had been given.

Our holding is limited solely to these propositions: (a) that landlord is bound to assure due process to the tenant; (b) that due process requires a hearing and proof of good cause for eviction after notice of the grounds upon which eviction is sought and (c) that mere expiration of the term of a lease is not such good cause.

We find no constitutional impediment to utilizing summary Maryland statutory eviction procedures provided proper notice is given and good cause for eviction is shown at hearing. Joy v. Daniels, supra; Appel v. Beyer, supra.

Judgment reversed.

Appellee to pay the costs.

      . Real Property Article § 8-402 in part here pertinent reads as follows:
      “§ 8-402. Holding over.
      (b) Notice to quit. — (1) Where any interest in property shall be leased for any definite term or at will, and the landlord shall desire to repossess the property after the expiration of the term for which it was leased and shall give notice in writing one month before the expiration of the term or determination of said will to the tenant or to the person actually in possession of the property to remove from the property at the end of the term, and if the tenant or person in actual possession shall refuse to comply therewith, the landlord may make complaint thereof in writing to the District Court of the county where the property is located. The court shall forthwith issue its summons to the tenant or person in possession that he be and appear on a day stated in the summons before the court to show cause (if any he have) why restitution of the possession of the said estate so leased should not be forthwith made to the landlord. Upon the failure of either of the parties to appear before the court on the day stated in the summons, the court shall continue the case to a day not less than six nor more than ten days after said day so first stated and notify the parties of such continuance.
      (2) If upon hearing the parties, or in case the tenant or person in possession shall neglect to appear after the summons and continuance the court shall find that the landlord had been in possession of the leased property, that the said lease or estate is fully ended and expired, that due notice to quit as aforesaid had been given to the tenant or person in possession and that he had refused so to do, the court shall thereupon give judgment for the restitution of the possession of said premises and shall forthwith issue its warrant to the sheriff or a constable in the respective counties commanding him forthwith to deliver to the landlord possession thereof in as full and ample manner as the landlord was possessed of the same at the time when the leasing was made, and shall give judgment for costs against the tenant or person in possession so holding over. Either party shall have the right to appeal therefrom to the circuit court for the county, or the Baltimore City Court within ten days from the judgment. If the tenant appeals and files with the District Court an affidavit that the appeal is not taken for delay, and also a good and sufficient bond with one or more securities conditioned that he will prosecute the appeal with effect and well and truly pay all rent in arrear and all costs in the case before the District Court and in the appellate court and all loss or damage which the landlord may suffer by reason of the tenant’s holding over, including the value of the premises during the time he shall so hold over, then the tenant or person in possession of said premises may retain possession thereof until the determination of said appeal. The appellate court shall, upon application of either party, set a day for the hearing of the appeal, not less than five nor more than 15 days after the application, and notice for the order for a hearing shall be served on the opposite party or his counsel at least five days before the hearing. If the judgment of the District Court shall be in favor of the landlord, a warrant shall be issued by the appellate court to the sheriff, who shall proceed forthwith to execute the warrant.
      (4) The provisions of § 8-402 (b) shall apply to all cases of tenancies from year to year, tenancies by the month and by the week.”

       Patently, “District Court” should read “appellate court”.

      . 12 U.S.C.A. § 1701s, as amended. Such limited dividend entities are limited to 6% return on initial equity investment. 24 C.F.R. § 221.532.
      N.B. We take judicial notice of public statutes of the United States and of those government regulations published in the Federal Register (of which the Code of Federal Regulations forms a part). Hettleman v. Frank, 136 Md. 351, 110 A. 715; 1 U.S.C.A. § 204; 44 U.S.C.A. 1507, 1510.

      . 24 C.F.R. 215.10.

      . 24 C.F.R. 236.55 in pertinent part reads as follows:
      “(1) A basic monthly rental charge determined on the basis of operating the project with payments of principal and interest due under a mortgage bearing interest at the rate of 1 percent per annum.
      (2) A fair market monthly rental charge determined on the basis of operating the project with payments of principal, interest, and mortgage insurance premium which the mortgagor is obligated to pay under the mortgage.”

      . “The monthly rental for each dwelling unit shall be 25 percent of the tenant’s adjusted monthly income, except that the monthly rental shall not be less than the basic rental nor more than the fair market rental charge. In the event of any change in a tenant’s income, the monthly rental charge shall be adjusted by the mortgagor.” (24 C.F.R. § 236.55 (b).)

      . Section 221 is codified in 12 U.S.C.A. § 17151. Regulations adopted in its implementation are codified in 24 C.F.R. § 221.1-221.790. All except 21 sub-sections of those regulations are incorporated by reference into § 236 regulations. The textual differences between Section 221 and Section 236 projects are miniscule.

      . Local government approval seemingly no longer is a requisite, § 5.15 (c) not appearing in 24 C.F.R. revised as of April 1,1975.

      . Caulder v. Durham Housing Authority, 433 F. 2d 998 (4th Cir. 1970) cert. den. 401 U. S. 1003. Caulder had said (at 1004):
      “Succinctly stated, Goldberg [Goldberg v. Kelly, 397 U.S. 254] requires (1) timely and adequate notice detailing the reasons for a proposed termination, (2) an opportunity on the part of the tenant to confront and cross-examine adverse witnesses, (3) the right of a tenant to be represented by counsel, provided by him to delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination and generally to safeguard his interests, (4) a decision, based on evidence adduced at the hearing, in which the reasons for decision and the evidence relied on are set forth, and (5) an impartial decision maker.”
      We do not differ with this portion of the decision in Caulder. We repudiate, however, that portion of the decision indicating that the issue of due process may not be litigated in State courts.


author: Gilbert, J.,

text:
    SERVICE DEVELOPMENT CORPORATION v. PRINCE GEORGE’S COUNTY, MARYLAND et al.
    [No. 105,
    September Term, 1975.]

      Decided November 4, 1975.

      The cause was argued before Gilbert, Davidson and Melvin, JJ.

      Gary R. Alexander, with whom were Giordano, Alexander, Haas, Mahoney & Bush on the brief, for appellant.

      Ellis J. Koch, Associate County Attorney, with whom was James C. Chapin, County Attorney, on the brief, for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

The Prince George’s County Zoning Code permits an appeal from a decision of the District Council in granting or refusing a zoning map amendment. An aggrieved party also has, under the ordinance, the right to seek the Council’s review by way of reconsideration. In the instant case Service Development Corporation, appellant, petitioned for reconsideration of the Council’s refusal to grant a zoning map amendment and, failing in the effort, appealed to the Circuit Court for Prince George’s County. The County moved to dismiss the appeal on the ground that it was untimely. Judge Ralph W. Powers ruled that the Zoning Code provided for an election between an appeal and a petition for reconsideration. Accordingly, he dismissed the appeal because the appellant had, by filing a petition for reconsideration, made its election and so waived its right to judicial review.

1 Prince George’s County Code, Ord. & Res. § 30.41A (1968) (Appendix B) provides:

“(a) For a period of thirty (30) days after the date of mailing the notice of the action or final decision of the district council on any application for a zoning map amendment, or thereafter pursuant to a petition for reconsideration filed within such thirty (30) day period, the district council shall have revisory power and control over such action or final decision. After the expiration of such period the action or decision shall stand and be the final determination as to all matters considered under the application and no revisions thereof may be made except to correct mistakes or irregularities not amounting to a change of use permitted in the zoning expressed in the decision.
(b) Reconsideration. The district council may, pursuant to a petition for reconsideration or upon its own motion, filed or acted upon within the time set forth in subparagraph (a) of this subsection, reconsider the application on such grounds as may be stated in the petition or motion. The petition, in addition to setting forth grounds for reconsideration, shall have contained therein an affidavit that the same is not filed for the purpose of extending the time of appeal of the action or decision, that there is good and sufficient reason to support the petition and that a copy of it has been served by regular mail, postage prepaid, upon each party who appeared at the public hearing or his spokesman or counsel. An opportunity will be given to the parties named in the record of the public hearing to be heard or to file a response if any member of the district council requests it before the petition or motion is acted on. The district council may act upon the petition for reconsideration with or without a hearing and shall act upon such petition or its own motion unthin sixty (60) days of the original decision or the same shall he deemed to be affirmed.
(c) The revisory power herein contemplated shall not be construed to affect the appeal provisions of the public local law allowing appeals to the circuit court from decisions of the district council and, when such appeal is taken it shall be deemed as a dismissal of any petition or motion which may be pending under this section.
(d) In the event there is granted a reconsideration pursuant to this section, a date shall be designated for a rehearing of the matter and the application for zoning map amendment shall be readvertised and posted and notice given as in the case of a new application. The cost thereof to be borne by the petitioner.” (Emphasis supplied).

2 Prince George’s County Code, Ord. & Res. § 59.85(e) (1968) provides:

“. . . In Prince George’s County, any incorporated municipality located in Prince George’s County, any person or taxpayer in Prince George’s County, the applicant who is an aggrieved party, is authorized to have judicial review of any final decision of the district council. Proceedings for review shall be instituted by filing a petition in the circuit court of Prince George’s County within thirty (SO) days after service of the final decision of the district council, which must be served upon all persons of record at the district council’s hearing. Copies of the petition shall be served on the district council and all other persons of record in the manner provided by the rules of court. The filing of the petition shall not stay enforcement of the district council’s decision; but the district council may do so, or the reviewing court may order a stay upon such terms as it deems proper.” (Emphasis supplied).

Section 30.41 (Appendix B) provides:

“Action by the district council on any proposed zoning map amendment shall, after thirty (30) days, be final and not subject to reconsideration, except through the filing of a new application. Within said thirty (30) day period, the district council may recall for reconsideration any zoning map amendment; provided that, before taking further action thereon,, a rehearing shall be scheduled and advertised and the property posted, as in the case of a new application. ” (Emphasis supplied.)

The judge interpreted the above quoted Code provisions as conferring two alternatives upon the aggrieved party in a zoning case, namely (1) “seek immediate judicial review on the merits” or (2) “petition the District Council to reconsider its decision.” We think the alternatives to be not quite so restrictive.

The foremost rule with respect to construing a statute or ordinance was recently repeated by the Court of Appeals in Maryland-Nat’l Capital Park and Planning Comm’n v. Mayor and Council of Rockville, 272 Md. 550, 325 A. 2d 748 (1974). There, Judge Levine, writing for the Court, opined at 555-56:

“The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent, Radio Com., Inc. v. Public Serv. Comm’n, 271 Md. 82, 93, 314 A. 2d 118 (1974); Scoville Serv., Inc. v. Comptroller, 269 Md. 390, 393, 306 A. 2d 534 (1973); Silberman v. Jacobs, 259 Md. 1, 267 A. 2d 209 (1970); Atlantic, Gulf v. Dep’t of Assess. & T., 252 Md. 173, 249 A. 2d 180 (1969); and in ascertaining that intent, the Court considers the language of an enactment in its natural and ordinary signification, City of Gaithersburg v. Mont. Co., 271 Md. 505, 511, 318 A. 2d 509 (1974); Grosvenor v. Supervisor of Assess., 271 Md. 232, 315 A. 2d 758 (1974); Radio Com., Inc. v. Public Serv. Comm’n, supra. If there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the legislature, Scoville Serv., Inc. v. Comptroller, supra; Atlantic, Gulf v. Dep’t of Assess. & T., supra.”

See Demory Brothers, Inc. v. Bd. of Public Works, 20 Md. App. 467, 473, 316 A. 2d 529, 532 (1974), aff'd 273 Md. 320, 329 A. 2d 674 (1974); Board of County Comm’rs v. Fleming, 13 Md. App. 261, 282 A. 2d 512 (1971).

“No rule of statutory construction is more fundamental than that, in ascertaining the intention of the . . . [County Council], we are to read all parts of a[n] . . . [ordinance] together to find the intention as to any one part; and that all parts are to be reconciled and harmonized. . . .” Prince George’s County v. White, 275 Md. 314, 317-18, 340 A. 2d 236, 239 (1975). When the lesson of White is followed in reading the above quoted ordinance, the County Council’s intent becomes clear. The ordinance allows an aggrieved party, within thirty days after the district council’s original decision on the zoning map amendment to:

1) Appeal the district council’s decision to the county circuit court.
2) Instead of appealing, file a petition for reconsideration, provided the petition be accompanied by an affidavit to the effect that the filing of the petition is not for the purpose of extending the time in which to appeal to the courts; provided further that no appeal is pending.
3) Even if a petition for reconsideration has been filed by a party, the same party may file an appeal to the courts thus, in effect, withdrawing the petition because the council is ipso facto stripped of all authority to act upon the petition.

Appellant argues that the ordinance required that it proceed by way of a petition for reconsideration or else it has not exhausted the available administrative remedies. The contention is advanced on the theory that because the reconsideration is authorized, a party must file for reconsideration before appealing. Such a procedure, of course, would extend the time in which to appeal for up to an additional ninety days. We think appellant misreads the ordinance. There is no requirement that a petition for reconsideration be filed as a prerequisite to appeal. As we have already stated, an appeal may be filed within thirty days of the district council’s original decision. When a party files a petition for reconsideration he may appeal from the denial of the petition within thirty days thereof. On appeal the issue before the court, however, is limited to the validity of the subsequent action. The rule relative to what may be considered on appeal from a reconsideration by a zoning body is set forth in Nutter v. Non-Profit Housing Co., 230 Md. 6, 14-15, 185 A. 2d 360, 364 (1962). Speaking through Judge Hammond (later Chief Judge), the Court held:

“. . . [N]o appeal which is taken or attempted to be taken from a decision or action of the Board more than thirty days from the date notice of the decision or action is sent out is timely, and that an appeal or attempted appeal from subsequent action of the Board, even though related to the original action sought to be reviewed, will lie only as to the validity of the subsequent action and not relate or reach back to the original action.”

It would appear that when the council fails to act within the sixty day period on a petition for reconsideration, the failure to act does not bring before the court the original action of the council, but rather the sole question of whether the council abused its discretion by failing to consider the petition. Nutter v. Non-Profit Housing Co., 230 Md. at 16, 185 A. 2d at 365. Nothing in the Prince George’s County ordinance requires a different solution than that provided by Nutter.

Appellant next argues, “Moreover, the lower court overlooked the possibility of judicial review from the District Council’s denial of reconsideration.” Our perusal of the appellant’s brief discloses that the above quoted statement is the solitary pronouncement advanced by appellant on the subject. Before the circuit court the appellant asserted:

“In this particular situation the county’s final decision, of which the appeal was taken within good time, which is dated and filed with the Court — this would be the August 30th, 1974, decision of the District Council denying reconsideration. That’s the decision we are taking the appeal from. And on top of that decision it says, ‘Notice of Final Decision.’ Even on its face there is no question that’s the final decision in the case.”

Appellant’s “Petition for Appeal and Review”, filed in the circuit court pursuant to Md. Rule B2e, manifests that the only relief sought in the circuit court was that the court . . reverse the findings and conclusions of the District Council in denying the request for zoning. . . .” The Petition contains a general prayer “. . . for such other and further relief as to the Court may seem just and proper.” Unless appellant’s assertion was considered to be before the court under some sort of umbrella interpretation of the latter prayer, it was not raised. The record, read as a whole, makes it unmistakable that the appellant was not seeking a review on the single ground of the denial of the petition for reconsideration, but rather was endeavoring to evade both the spirit and letter of Nutter and “reach back to the original action.” Patently, Judge Powers did not consider the appealability of the denial of the petition for reconsideration because appellant did not press that issue, nor do we glean from the record and argument that appellant was particularly interested in having that narrow question litigated. Appellant’s principal interest was in getting a judicial review of the District Council’s original action, but, as we have seen, appellant’s appeal to the circuit court was too late to accomplish that end. Judge Powers did not “overlook” judicial review of the denial of the petition for reconsideration; it simply was not before him.

Judgment affirmed.

Costs to be paid by appellant.

      . This action will preclude the subsequent filing of a petition for reconsideration by the appealing party or another because under the wording of the ordinance the district council is divested of its right to reconsider. See 1 Prince George’s County Code Ord. & Res. § 30.41A(c) (1968) (Appendix B). See also Md. Rule B4a which provides:
      “An order for appeal shall be filed within thirty days from the date of the action appealed from, except that where the agency is by law required to send notice of its action to any person, such order shall be filed within thirty days from the date such notice is sent, or where by law notice of the action of such agency is required to be received by any person, such order for appeal shall be filed within thirty days of the receipt of such notice.”

      . This alternative is directed primarily toward preserving the right of the zoning map amendment applicant to utilize the property under its new use without delay. Otherwise the property’s new use would be postponed for up to ninety (90) days pending a decision on appeal. Significantly, no affidavit is required to be affixed to the appeal, however, so that, hypothetically, the appeal may be frivolous and so known to the appellant.

      . The sixty day period for reconsideration, vel non, and thirty days to appeal from the granting or denial of the reconsideration.

      . The suggestion that one must file a petition for reconsideration as a prior condition to appeal is reminiscent of what Lord Atkin, in Liversidge v. Anderson, A.C. 206, 245 (1942), where quoting from Lewis Carroll’s Through the Looking Glass, Ch. 6, stated:
      “I know of only one authority which might justify the suggested method of construction: ‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is’ said Alice, ‘Whether you can make words mean so many different things.’ ‘The question is’ said Humpty Dumpty, ‘which is to be master — that’s all.’ ”


author: Melvin, J.,

text:
    SUBSEQUENT INJURY FUND v. SIDNEY COMPTON et al.
    [No. 107,
    September Term, 1975.]

      Decided November 4, 1975.

      The cause was argued before Orth, C. J., and Powers and Melvin, JJ.

      Dennis M. Andreone, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and H. George Meredith, Jr., Special Assistant Attorney General, on the brief, for appellant.

      Glenn C. Parker, with whom were Theodore B. Cornblatt and Smith, Somerville & Case on the brief, for appellees.
   Melvin, J.,

delivered the opinion of the Court.

As in Reliance Insurance Company v. Watts, 16 Md. App. 71, this Workmen’s Compensation appeal presents for our resolution a dispute between the claimant’s employer and insurer (appellees) and the Subsequent Injury Fund (appellant) concerning what proportion of an award for permanent total disability each should pay.

The genesis of the dispute was an order of the Workmen’s Compensation Commission, dated August, 1962, determining that as a result of an accidental injury occurring on February 4, 1961, the claimant, Sydney Compton, “sustained a permanent partial disability resulting in 40% loss of use of his left hand and 15% loss of use of his right hand and a permanent partial disability under ‘Other Cases’ amounting to 25% industrial loss of use of his body as a result of the injury to his back”.

On November 29, 1966, Compton was again involved in an accident on the job. In this accident he sustained serious injuries to his left ankle, left shoulder and left arm when a truck he was unloading from a trailer fell off the top of the trailer. By an order dated December 20, 1968, the Commission decided:

1) Compton was permanently partially disabled under “Other Cases” (Md. Code, Art. 101, § 36 (4)), amounting to 80% industrial loss of use of his body, for which he was awarded an aggregate sum of $21,320.00.
2) 65% of the claimant’s permanent partial disability was attributable to the November 29, 1966 accident and the employer and insurer were ordered to pay $13,858.00, representing 65% of the total award.
3) 35% of the claimant’s permanent partial disability was attributable to “a pre-existing condition” (i.e., the residual effects of the February 4, 1961 accident) and the Subsequent Injury Fund was ordered to pay $7,462.00, representing 35% of the total award, subject to a credit of the amount awarded the claimant for his injuries in the 1961 accident.

The net result of this order was that the employer and insurer were to pay compensation for 52% permanent partial disability under “Other Cases” and the Subsequent Injury Fund was to pay 28% permanent partial disability under “Other Cases”, subject to the credit already mentioned. None of the parties appealed the order. The apportionment of the award between the employer and insurer and the Subsequent Injury Fund was pursuant to Md. Code (1964 Repl. Vol.), Art. 101, § 66 (1), which provides in pertinent part as follows:

“Whenever an employee who has a permanent impairment due to previous accident or disease or any congenital condition, which is or is likely to be a hindrance or obstacle to his employment, incurs subsequent disability by reason of a personal injury, for which compensation is required by this article resulting in permanent.partial or permanent total disability that is substantially greater by reason of the combined effects of the impairment and subsequent injury than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall be liable only for the compensation payable under this article for such injury. However, in addition to such compensation to which the employer or his insurance carrier is liable, and after the completion of payments therefor provided by this article, the employee shall be entitled to receive and shall be paid additional compensation from a special fund to be known as the ‘Subsequent Injury Fund’, created for such purpose, in the manner described hereafter in this section, it being the intent of this section to make the total payments to which such employee shall become entitled equal to the compensation that would be due for the combined effects of the impairment and subsequent injury resulting in permanent total disability or a substantially greater permanent partial disability.”

On March 12, 1974, a hearing was held before the Workmen’s Compensation Commission on the claimant’s timely Petition to Reopen for “Worsening of Condition” pursuant to Md. Code (1975 Cum. Supp.), Art. 101, § 40. Subsections (b) and (c) of Section 40 provide:

“(b) Readjustment upon aggravation, etc. of disability. — If aggravation, diminution or termination of disability takes place or is discovered after the rate of compensation shall have been established or compensation terminated in any case, the Commission may, upon the application of any party in interest or upon its own motion, readjust for future application the rate of compensation, or in a proper case, terminate the payments.
(c) Modification or changes. — The powers and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders with respect thereto as in its opinion may be justified;. . .”

The petition to reopen was granted and by its order dated May 9, 1974, the Commission found:

“. . . on the issue presented that the claimant is now permanently totally disabled as a result of his accidental injury of November 29, 1962, [sic, see footnote ], and is entitled to compensation benefits in the amount of $30,000.00 under the provisions of Section, 36, Subsection 1 of Article 101. Inasmuch as the claimant was awarded compensation benefits under the Order dated December 20, 1968 in the amount of $13,858.00 to be paid by the employer and insurer and $7,462.00. for the pre-existing condition, the claimant is now entitled to $8,680.00 to be paid by the employer and insurer, which is in addition to money previously awarded under the Order dated December 20, 1968.” (Emphasis added)

On July 1, 1974, the employer and insurer appealed this decision of May 9, 1974, to the Superior Court of Baltimore City claiming, as they do before this Court, that the Commission erred as a matter of law in directing the employer to pay compensation on the basis of permanent total disability, rather than merely the compensation payable under “Other Cases” for an additional 20% disability. Prior to their appeal to the Superior Court of Baltimore City the employer and insurer had sought and obtained a rehearing before the Commission claiming the award was “incorrectly computed”. The rehearing was held on May 24, 1974, at which the employer and insurer presumably advanced the same argument they made before the Superior Court and now advance in this Court. However, by its order of June 12, 1974, the Commission affirmed its order of May 9, 1974, requiring the employer and insurer to pay the $8,680.00, i.e., the entire difference between the total award for permanent total disability ($30,000.00) and the $21,320.00 previously awarded the claimant under its order of December 20,1968.

The Superior Court of Baltimore City, after a hearing, granted a motion for summary judgment filed by the employer and insurer, and by order dated February 10,1975, remanded the case to the Commission “to fix an award under ‘Other Cases’ ”. It is from this order that the Subsequent Injury Fund has appealed to this Court, claiming the trial court erred in “overruling the decision of the Workmen’s Compensation Commission regarding the applicable formula for payment of benefits by the Employer and Insurer and the Subsequent Injury Fund”.

We are persuaded that the trial court was in error in granting appellees’ motion for summary judgment.

The appellees do not question the finding by the Commission that the claimant was permanently and totally disabled as of March 12, 1974, the date of the hearing on the claimant’s petition to reopen. The appellees’ only complaint is that the Commission did not apportion the award for that disability, but, instead, required them to pay all of it, albeit with credit for what had already been paid by both appellees and appellant pursuant to the original award of December 20,1968. They claim the Commission wrongfully disregarded its 1968 finding that 35% of the claimant’s 80% permanent partial disability was due to a pre-existing condition. In effect, théy argue that since the Commission, in its order of May 9, 1974, did not specifically change its prior determination of a 28% pre-existing permanent partial disability, this precluded a subsequent finding that the 1966 accident could alone result in permanent total disability for which they alone can be held responsible. They argue that when the case was reopened in 1974 this pre-existing disability was still present and the Commission “merely found that the injury sustained in the subsequent accident had worsened so that the claimant’s industrial loss of use increased from 80% to 100%.” From this premise they argue that the only additional responsibility that should have been imposed upon them by the order of May 9, 1974, was to pay compensation for 72% permanent partial disability under “Other Cases” as opposed to the 52% for permanent partial disability required of them by the 1968 order. They would then have the appellant pay the balance of the $30,000.00 award for permanent total disability.

We think the appellees argue from a false premise. In the context of the Workmen’s Compensation Law, if one suffers injuries resulting in permanent partial disability of a member of his body or of his body as a whole, it does not necessarily follow that a subsequent injury cannot result in his total and permanent disability without attributing that result to the prior injuries to any substantial degree or to any extent at all. Many examples come to mind. One will suffice: One is 50% permanently and partially disabled because of a back injury. In a subsequent accident he loses both legs. Could it be denied that the subsequent injury alone resulted in permanent total disability? We think not.

The instant case is, of course, not as clear cut, but the principle is the same. Here, in 1968 the Commission determined that the claimant was 80% permanently partially disabled. 35% of that disability was attributed to the 1961 accident. In its 1974 order the Commission found the claimant’s disability to be permanent and total. As already stated there is no dispute as to the correctness of that finding. The Commission also found that the permanent total disability was “as a result of his accidental injury of November 29, 196[6]”. The 1974 order, unlike the 1968 order, did not attribute any portion of the permanent total disability to the first accident in 1961.

We agree with the appellant that the Commission, when rendering its award of May 9, 1974, was not bound by its former findings of December 20, 1968. Section 40 (c) of Article 101 clearly gave the Commission power to “make such modifications or changes with respect to” its former findings “as in its opinion” were justified. See Union Mining Co. v. Del Signora, 191 Md. 55 (1972).

In Reliance Insurance Company v. Watts, supra, Judge Powers, speaking for this Court, said, at p. 75:

“We hold that ‘the compensation payable [by the employer] under this article for such injury’, referring to a subsequent injury which calls for the application of § 66 (1), must be determined upon the assumption that the employee had no pre-existing ‘permanent impairment due to previous accident or disease or any congenital condition, which is or is likely to be a hindrance or obstacle to his employment’.”

Evidence before the Commission at the hearing on March 12, 1974, supported the Commission’s finding that the claimant’s permanent total disability at that time was attributable to injuries sustained in the 1968 accident. Moreover, as pointed out by Judge Powers in Reliance, supra, at p. 73:

“. . . [T]he only explicit authority to apportion under § 66 (1) arises when the subsequent injury results in death.”
. . The declared legislative policy that ‘the employer or his insurance carrier shall be liable only for the compensation payable under this article for such injury’ does not open the door to apportionment as the commission and the court below applied it, but requires the precise determination of the compensation payable for the current injury. Such determination is the only authority to apportion which is implied in § 66 (1).”

We think it clear, particularly in view of its affirmation order of June 12, 1974, after a rehearing on May 24, 1974, that the Commission intended to and did in fact make a “precise determination of the compensation payable [by the employer] for the current injury”.

In Congoleum Nairn, Inc. v. Brown, 158 Md. 285 (1929) the Court of Appeals for the first time had before it the question of “whether a present injury, which would on a whole man entail only a partial [permanent] disability, is, when it deprives an impaired man of all his remnant of capacity, to be compensated under the statute as one entailing total disability”. The Court held, at p. 291:

“After weighing the arguments on both sides, this court adopts the construction that the consequences to the particular workman determine the degree of disability, so that if an injury deprives him of all the capacity he has left after a previous accident, that result might be classed as total disability from the injury.” (Emphasis added)

Congoleum Nairn, Inc. was not concerned with the question of apportionment and we refer to it only as authority for the proposition that a previous accident resulting in permanent partial disability (as was the case in Congoleum Nairn, Inc.) does not preclude the Commission from finding that permanent total disability may be attributed solely to a “current injury”.

It should also be noted that § 66 (1) relieves the employer of responsibility for payment of an entire award for permanent partial or permanent total disability only when such partial or permanent disability found to exist is “substantially greater by reason of the combined effects of ... [a permanent] impairment [due to previous accident or disease or any congenital condition] and subsequent injury than that which would have resulted from the subsequent injury alone”. (Emphasis added) Thus, it is clear that under § 66 (1) not every case requires apportionment between an employer and the Subsequent Injury Fund where a claimant is found to be permanently totally disabled as a result of the combined effect of a prior and subsequent injury. The employer is relieved of some part of the entire award only when the prior permanent disability substantially contributes to the permanent total disability found to exist after a subsequent injury. Put another way, where a claimant is found to be permanently totally disabled after a current injury, the extent of that disability attributed to the current injury must be substantially less than total before any part of an award for that disability may be assessed against the Subsequent Injury Fund.

The term “substantially greater” is not defined in our Workmen’s Compensation Law. It is a subjective phrase reposing in the Commission wide discretion to determine when it applies to a particular case. The Commission’s determination of the matter is presumptively correct and the burden is upon the party attacking it to prove otherwise. Ackerhalt v. Hanline Bros., 253 Md. 13 (1969); Abell v. Albert F. Goetze, Inc., 245 Md. 433 (1967); Dent v. Cahill, 18 Md. App. 117 (1973).

In the instant case, the Commission’s finding on May 9, 1974, that the claimant’s disability was “as a result of his accidental injury of November 29, 196[6]” fixed the liability of the employer and insurer. The Commission’s refusal to apportion the award by remaining silent on the question amounted to an “implicit decision” that the claimant’s permanent total disability was not substantially greater by reason of the combined effects of his previous impairment and his subsequent injury than that which would have resulted from the subsequent injury alone. The employer and insurer, of course, had a right to appeal the Commission’s order of May 9, 1974, as affirmed by its order of June 12, 1974. Their motion for summary judgment relied on the evidence before the Commission. This evidence, as already stated, supported the Commission’s findings and order of May 9,1974. No additional evidence in the form of affidavits or otherwise was before the trial judge when he granted the motion. The evidence did not warrant a holding that the employer and insurer were entitled to judgment as a matter of law. The motion was therefore granted in error. Md. Rule 610 d.

The judgment granting the motion will be reversed and the case remanded for trial on the issues presented in the appeal from the Commission. It would seem that the issues could be reduced to three:

1) Does the claimant have a permanent impairment due to his accidental injury of February 4, 1961, which is or is likely to be a hindrance or obstacle to his employment?
2) Is the claimant’s permanent total disability substantially greater by reason of the combined effects of the prior impairment and the injuries sustained in the November 29, 1966 accident than that which would have resulted from the subsequent injury alone?

If the court or jury answers “no” to the first issue, the Commission’s order should be affirmed. If the answer to the first issue is “yes” and the answer to the second issue is “no”, the Commission’s Order should likewise be affirmed. If the answer to the first two issues is “yes” the third issue should be answered:

3) What is the percentage of permanent total disability attributed to:
a) The accident of February 4, 1961?
and
b) The accident of November 29,1966?

We recognize that the second issue suggested by us implies that there are degrees of permanent total disability. To say that a claimant may have a “greater” total permanent disability from the combined effects of two accidents than from one accident seems somewhat illogical. This possibility, however, is consistent with § 66 (1) which, as we have seen, provides that “whenever an employee who has a permanent impairment . . . incurs subsequent disability . . . resulting in . . . permanent total disability that is substantially greater by reason of the combined effects of the impairment and subsequent injury than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall be liable only for the compensation payable under this article for such injury.” Moreover, as the Court of Appeals said (in a different context) in Bata Shoe Co., et al. v. Chvojan, 188 Md. 153, at 159: “The Compensation Law fails to meet the test of logical consistency in many respects. It could hardly be otherwise, for the original Act was not constructed on any system of scientific classification and subsequent amendments have been directed chiefly toward modification of particular details. It is our duty to construe the Act, not to revise it”.

Order granting summary judgment reversed; case remanded for further proceedings; costs to be paid by appellees.

      . Obviously a misprint, the true date being November 29.1966.

      . 35% of 80% industrial loss of use of his body.

      . See Trojan Boat Co. v. Bolton, 11 Md. App. 665, 671 (1971) where this Court held that “an implicit decision by the Commission is one that, in the logical process of disposing of the proceeding, the Commission encountered and solved, although without explicit mention of it in the record”.

      . It might be argued that if the answer to the first two issues is “yes” the case should be remanded to the Commission to determine issue No. 3 since it was not originally decided by the Commission. However, although the issue was not specifically decided by the Commission, it was not thereby rendered moot and unraisable on appeal, but rather so inextricably concerned with issue No. 2 as to come within the definition of an implicit decision by the Commission “encountered and solved, although without explicit mention of it in the record”. See Pressman’s Workmen's Compensation in Maryland (1970) and 1972 Supplement thereto, ij 4-9 (13). Cf. Trojan Boat Co. v. Bolton, supra.


author: Lowe, J.,

text:
    ROFRA, INC. v. BOARD OF EDUCATION, PRINCE GEORGE’S COUNTY, MARYLAND
    [No. 109,
    September Term, 1975.]

      Decided November 4, 1975.

    The cause was argued before Moylan, Menchine and Lowe, JJ.

      Gary R. Alexander, with whom were Giordano, Alexander, Haas, Mahoney & Bush on the brief, for appellant.

      Paul M. Nussbaum and Richard E. Ekstrand for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Because the successful bidder to perform plumbing work for the Board of Education of Prince George’s County had not conformed to a prerequisite of solicitation requiring that the bidder be “a licensed master plumber, or have a licensed master plumber in their employment,” appellant, an unsuccessful bidder, filed a two count declaration seeking injunctive relief and damages for breach of contract. Appellee moved for summary judgment in the Circuit Court for Prince George’s County. On November 21,1974 appellant dismissed Count I of the declaration because the injunctive relief sought had become moot, and confessed judgment on the appellee’s motion as to that count.

Issue was joined, however, as to the appellee’s motion relative to the remaining count praying damages for breach of contract. After a hearing on the motion, the judge granted the motion for summary judgment saying:

“My conclusion is as long as they use a master plumber doing the work he is required to do the rest is only directory. Therefore, the motion for summary judgment will be granted. Judgment entered for the defendant, and costs, as to the second count.”

Appellant contends that the trial judge erred because there were material disputes of fact on the record indicating that the contract was wrongfully awarded. Without reaching the question decided by the trial judge, we find the result reached by him nonetheless proper.

When appellant dismissed its first count seeking injunctive relief, it was left seeking damages for breach of contract; however, it had no contract with appellee which it could breach. Its own pleading noted the “awarding of the contract to William F. Harrison, Inc., rather than to Plaintiff [appellant].”

When this fact was brought to appellant’s attention at argument upon appeal, appellant suggested — or acquiesced in the suggestion — that the contract allegedly breached upon which this suit was founded, was a contract conceived by appellee’s invitation to bid and consummated when appellant accepted by submitting its proposal, which, appellant contends, was the only proper one before the board.

We do not agree that an invitation to bid is an offer and a conforming bid an acceptance. W. T. Brantly’s, Law of Contract, 2d ed. at 15 (1912) refers to such solicitations as “Invitations to negotiate.” Citing Packard v. Hayes, 94 Md. 233 and Baltimore City v. Flack, 104 Md. 107 as supporting his premises, Brantly says:

“So where a committee advertise for proposals for the erection of a building, the advertisement is not an offer. It is merely asking for offers and there is no promise to accept any.” W. T. Brantly, Law of Contract, at 16-17.

In Williston on Contracts, 3d ed., Sec. 31, the message is even more clear:

“Often tenders or bids are advertised for by public corporations, municipalities, counties or states, or private corporations. The rules governing such bidding are analogous to the rules governing auction sales. That is, an ordinary advertisement for bids or tenders is not itself an offer but the bid or tender is an offer which creates no right until accepted. Even though the charter of a municipality expressly requires that a contract shall be awarded to the lowest responsible bidder, a contract is not formed until the lowest bid is in fact accepted. Though the municipality can make a contract with no other person than the lowest bidder, it need make no contract at all since there is no obligation to accept any offer.” [footnotes omitted].

The summary judgment was properly granted; appellant had no contract upon which to sue. When it dismissed its count for injunctive relief appellant was without a cause of action, having no contract upon which to rely. We affirm the result reached by the trial judge but without reaching the reason he used to arrive at that result.

Judgment affirmed.

Costs to be paid by appellant.

      . With the “Solicitation for Connection of Building Sewer to the Public Sewer at Surrattsville Senior High School” by appellee to which appellant responded, appellant coupled the “Contract General Provisions” which together comprised appellant’s Exhibit I incorporated in its declaration. Section XXVII (c) of those provisions clearly reserves the right for the board “to reject any and all bids, in whole or in part. . .