text:
    WILLIAM J. ANDREE et ux. v. THE EQUITABLE TRUST COMPANY
    [No. 72,
    September Term, 1980.]

      Decided October 15, 1980.

    The cause was argued before Gilbert, C. J., and Lowe and Mason, JJ.

      Robert F. Kahoe, Jr., for appellants.

      K. Donald Proctor and Richard P. Kidwell, with whom were Miles & Stockbridge on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The message of the Court of Appeals of Maryland, delivered to banking institutions and attaching creditors, through the medium of Fairfax v. Savings Bank of Baltimore, 175 Md. 136, 199 A. 872 (1938), was crystalline. In the Fairfax case, the Court held that in the absence of fraudulent conduct by a husband and a wife, a judgment creditor who has a claim against one spouse, but not both, may not attach a joint bank account, in trust for another, and subject to the order of either. The right to withdraw from the account, the Court said, is "a reserved personal right of each, and beyond the control of the other, and, therefore, whether it shall be exercised depends wholly upon the individual will of each severally motivated.” 175 Md. at 144,199 A. at 876.

The Court went on to state:

"A creditor of one cannot make this election, nor compel the debtor to act. Nor may a valid trust, untainted by fraud, be ended at the instance of a subsequent creditor. If... [a creditor were at liberty to so do] the established right of the debtor ... [and the spouse who is not a debtor] ... will be swept aside without justification in principle or precedent.”

In sum Fairfax forbids the creditor of one spouse from attaching a bank account held jointly by the debtor and spouse, in trust for one another, subject to the order of either, and payable upon death to the survivor.

The Equitable Trust Company (Equitable), the appellee in the matter now before us, chose to disregard Fairfax and to place the monies in the joint accounts in "escrow ... pending settlement of [an] attachment” laid in Equitable’s hands by a judgment creditor of one of two spousal owners of the accounts.

The facts of this litigation are uncomplicated. The Aberdeen National Bank held a judgment against Marie I. Bonge as "endorser” and a person that we infer to be her former husband. Marie Bonge apparently subsequently married William J. Andree. The Andrees jointly held "a regular checking account,” "a special checking account,” and a "savings account.” Mrs. Andree individually had a "special checking account.”

The Aberdeen Bank caused a writ of attachment to be issued out of the District Court of Maryland for Harford County on the judgment it held against Marie Bonge Andree. The attachment instructed the judicial officer serving it to:

"Lay the same in the hands of the following named garnishee(s):
Equitable Trust Company Acct.
541-10-920 account of Marie Bonge Andree
Aberdeen Main Branch, W. Bel Air Ave.
Aberdeen, Md. 21001.”

The "Writ of Attachment,” signed by the Clerk of the District Court, was printed on the same form as the order for attachment. The writ contains the pertinent wording:

"THEREFORE you [the judicial officer serving the writ] are hereby commanded to attach the lands and tenements, goods and chattels, rights and credits, of the Defendant(s) if they can be found in your bailiwick to the value of the debt, costs and charges set forth above, to be condemned by the District Court of Maryland for District 9 Harford County according to law and the Maryland District Rules, to and for the use of said Plaintiff(s).”

At the time of the attachment, Mrs. Andree’s individual "special checking account” contained only $20.07.

Equitable, however, advised both Mr. and Mrs. Andree that it had placed the monies from all the accounts in which Mrs. Andree had an interest in escrow. The letter from Equitable to the Andrees read in part:

"We have been served with an Attachment On Judgment In The District Court Of Maryland For Harford County in favor of Aberdeen National Bank, in the amount of $3,197.68 and against Marie S. Bonge.
A total of $1,567.23 has been placed in our escrow account pending settlement of attachment, and any additional deposits made by you will be held up to the total amount of the attachment.”

The Andrees sued Equitable on a two-count Amended Declaration in the Circuit Court for Harford County claiming in the first count that the bank wrongfully dishonored checks drawn by the Andrees on their accounts, and besides the "great inconvenience, expense and worry” they sustained, the bank’s action also caused them "severe and irreparable economic harm.” The second count alleged conversion. The Andrees sought compensatory and punitive damages.

Equitable demurred to the Andrees’ Amended Declaration asserting various technical pleading defects. Of more importance, the bank relied upon the provision of Md. Ann. Code art. 11, § 103 (1976 Repl. Vol.), which provides:

"No banking institution doing business in this State shall be required to recognize, or take any action with respect to, any claim to a deposit or to money or property in its hands or contained in a safe deposit box, adverse to the interests of any person, corporation or other legal entity, appearing on its records as entitled to receive from it such deposit, money or property or a part thereof, except that if there is served upon such banking institution a restraining order, injunction, attachment, garnishment, order to show cause, or other order, or decree, issued or entered by a court in this State in an action, to which the adverse claimant is a party, involving a claim to the whole or a part of such deposit, money or property, then such institution may, or to the extent required thereby shall, impound and withhold all or any part of such deposit, money or property, subject to further order of the court and without any liability on its part to anyone for so doing.” (Emphasis supplied.)

The hearing judge agreed with Equitable and sustained the demurrer without leave to amend.

For the reasons hereinafter stated, we shall reverse and remand to the circuit court for further proceedings.

Equitable argued persuasively to the hearing judge that the statute, enacted by Laws 1951, ch. 79, permitted the bank to do exactly what it had done, namely, freeze the joint accounts. Equitable asserted that the statute is directed toward accounts in which the debtor is the sole or part owner. It follows then, the way Equitable reads the statute, that Fairfax has been rendered nugatory by the 1951 act.

We do not share Equitable’s view of the effect of the statute. The statute does not purport to authorize that which Fairfax forbids. Rather, the statute does no more than Fairfax allows.

If Equitable were correct in its interpretation of the statute, then the monies of a non-debtor spouse could be attached and used by a creditor to pay the debts of the debtor spouse, whenever the spouses held jointly owned trust form accounts. We opine that jointly held trust form accounts would shortly become a thing of the past. The net result would be that one of the purposes of the account, the lack of necessity of probate in the event of the death of a spouse, would be lost. Moreover, a spouse might well find himself or herself forced to pay, via attachments, the debts of the other spouse, notwithstanding the fact that the debts were incurred prior to the time of the marriage. We do not believe the General Assembly ever intended that result.

Equitable also contends that the wording of the writ of attachment compelled the bank to impound all the accounts in which Marie Bonge Andree had an interest. They asseverate that while the language of the instructions to the serving officer direct him to:

"Lay the same in the hands of the following named garnishee(s):
Equitable Trust Company Acct.
541-10-920 account of Marie Bonge Andree
Aberdeen Main Branch, W. Bel Air Ave.
Aberdeen, Md. 21001,”

the notice to the garnishee is phrased differently. The caveat to the person into whose hands the writ was laid warns that:

"You are hereby notified to file in writing a defense in the above captioned case in the District Court of Maryland for District 9 located at_ _ in Harford County, Maryland, pursuant to Maryland District Rule G52 within 30 days after service of the above writ, showing cause why the property or credits of the Defendant(s) in your hands should not be condemned. If you fail to file such defense within such time, the court may enter a judgment of condemnation against you.”

Equitable reads the quoted admonition as a direction from the court to the bank to hold the accounts or property in which the judgment debtor has any interest. That, however, is not what the writ commands. All that is required of the garnishee is that it freeze and confer assets of accounts that are legally attachable. Impounding accounts not legally attachable subjects the garnishee to suit by the improperly garnisheed depositor.

Of course, in the instant case, the position taken by Equitable is somewhat academic. This is true because the instruction to the judicial officer that served the writ plainly appeared on the face of the writ. Those instructions directed the officer to attach a particular account, designated by account number, and in a particular person’s name. It is difficult to imagine how the directions could have been more specific.

When Equitable froze the jointly held trust form accounts of Mr. and Mrs. Andree, they violated the holding of Fairfax, exceeded the protection afforded them by Md. Ann. Code art. 11, § 103, and subjected themselves to possible pecuniary damages to the Andrees.

The circuit court erred in sustaining the demurrer.

Order sustaining demurrer without leave to amend reversed.

Case remanded for further proceedings.

Costs to be paid by appellee.

      . While there was some question in the hearing court as to whether the pleadings properly phrased the manner in which the account was held, that issue is not raised on appeal, and we do not consider it.

      . Although there is nothing about it in the record, we assume the Andrees did not make "any additional deposits” in any of the accounts.

      . See n. 1 supra.

      . The underlined portions of the quote are blanks in the printed form. The words appearing over the underlining have been typed into the space allotted for that purpose.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    LARRY RUDOLPH MARSHALL v. STATE OF MARYLAND
    [No. 77,
    September Term, 1980.]

      Decided October 15, 1980.

    The cause was argued before Morton, Thompson and Liss, JJ.

      James J. Fabian, Assigned Public Defender, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Joseph E. Moore, State’s Attorney for Worcester County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

The appellant, Larry Rudolph Marshall, was tried before a jury in the Circuit Court for Worcester County, Chief Judge Daniel T. Prettyman presiding. Charged with the robbery and murder of one Harry Waters, the jury, applying the felony murder rule, found the appellant guilty of first degree murder. The appellant’s contentions will be set out separately.

I Facts

Early on the morning of February 10, 1979, with the temperature at approximately 8 degrees F. the victim, Harry Waters, was found lying across the seat of his pickup truck which was parked on Willow Street in Pocomoke City, Maryland. When found, Mr. Waters, who was 72 years old, was unconscious. There was frost on his hair and clothing and his body temperature was abnormally low. He was transported by helicopter to Peninsula General Hospital Medical Center where he died some time later. The cause of death was determined to have been a large subdural hematoma, i.e., a blood clot on the brain, with hypothermia, caused by exposure, a contributing factor. It was testified that the hematoma was the result of the victim’s striking his head on a stationary object.

Briefly stated, the evidence showed that, at approximately 10 p.m. on February 9, 1979, the victim left a bar, where he had been drinking that evening, accompanied by the appellant and the appellant’s sisters, Barbara and Delores Marshall. A short distance from the bar, the appellant seized the victim and held him while Barbara Marshall removed the victim’s wallet from his pocket. At the same time, Delores Marshall removed some money from another pocket. After the money was removed from the wallet, the wallet was returned to the victim. At some point, the appellant struck the victim in the face, causing the victim to fall on the sidewalk, striking his head and rendering him unconscious. After making an attempt to revive the victim, the appellant and his sisters carried the victim to his truck, which was parked a short distance from the bar, and placed him inside the cab. The appellant and his sisters then returned to the bar.

II Preliminary Hearing

The appellant’s first contention is that the Circuit Court "erred in failing to use its discretion in determining the question of appellant’s request for preliminary hearing.”

The appellant was arrested on February 12, 1979. He made a timely request for a preliminary hearing, pursuant to Art. 27, § 592 (b) (1), Annot. Code of Md. (1976 Repl. Vol.). On February 26, 1979, before the requested preliminary hearing had been held, the appellant was indicted by the Grand Jury. Thereafter, the appellant filed a motion for a preliminary hearing in the Circuit Court. The court below granted appellant’s motion; however, upon the State’s motion for reconsideration, the court reversed its ruling and denied the requested hearing.

It is the appellant’s contention that, under Art. 27, § 592 (b) (3), the court may, in its discretion, afford a preliminary hearing to a defendant who has been indicted by the Grand Jury. He argues that the court below failed to exercise its discretion in refusing to grant the requested hearing. Article 27, § 592 (b) (3), states in part:

"If the state’s attorney elects to charge the accused by grand jury indictment, the preliminary hearing is not a matter of right to the defendant but may be afforded in the court’s discretion.”

Former Maryland District Rule 741, which covered preliminary hearings, duplicated in general the language of Section 592 and in particular the language of Section 592 (b) (3) quoted above. Effective July 1, 1977, the rules contained in Chapter 700 were revised. In the revision, M.D.R. 741 was replaced by M.D.R. 727. It is M.D.R. 727 which was in effect at all times relevant to the instant case.

M.D.R. 727 f 1 contains the following:

"A preliminary hearing may not be held if before it is held:
1. An indictment is filed in the Circuit Court; ...”

Thus, there now exists a conflict between the statute, Art. 27, § 592 (b) (3) and the rule, M.D.R. 727 f 1. As the rule was adopted subsequent to the enactment of the statutory provision, the rule prevails. County Federal Savings and Loan v. Equitable Savings and Loan Association, Inc., 261 Md. 246, 274 A.2d 363 (1971); Scott and Wimbrow, Inc. v. Wisterco Investments, Inc., 36 Md. App. 274, 373 A.2d 965, cert. denied, 281 Md. 743 (1977). It follows the appellant was not entitled to a preliminary hearing.

Ill Witness Sequestration

The appellant’s second contention is that the court below erred in refusing to permit a defense witness to testify after the witness had violated the witness sequestration order imposed at the start of the trial.

On the evening of the second day of trial and again at the start of the third and final day of trial, defense counsel sought to place on the witness stand one Rosie Jones. The State objected based on violation of the sequestration order. Ms. Jones had been present in the courtroom during the second day of trial and had heard the testimony given. Defense counsel indicated that the witness entered the courtroom as a spectator unaware that she had any knowledge which was relevant to the case. When she became aware that she did possess some relevant information, Ms. Jones so informed an attorney present in the courtroom. The attorney in turn informed defense counsel of her presence. The record is unclear as to exactly when defense counsel became aware that Ms. Jones was a potential witness; it is clear that he did not inform the court that she was present until he attempted to put her on the stand.

A decision concerning the admission or exclusion of the testimony of a witness who has violated a sequestration order is within the sound discretion of the trial court. Md. Rule 755 d; Brown v. State, 272 Md. 450, 325 A.2d 557 (1974); Pierce v. State, 34 Md. App. 654, 369 A.2d 140, cert. denied, 280 Md. 734, cert. denied, 434 U.S. 907 (1977).

In Hurley v. State, 6 Md. App. 348, 351-52, 251 A.2d 241, cert. denied, 255 Md. 742 (1969), referring to former Md. Rule 753 (now Rule 755), we stated the "essential purpose” of the sequestration rule: "[T]o prevent one prospective witness from being taught by hearing another’s testimony; its application avoids an artificial harmony of testimony that prevents the trier of fact from truly weighing all the testimony; it may also avoid the outright manufacture of testimony.” Here, defense counsel stated that the testimony of Ms. Jones would tend to corroborate that of the appellant. As noted above, Ms. Jones had been present in the courtroom while the appellant gave the testimony which Ms. Jones offered to corroborate. Under these circumstances, the potential for the witness having been "taught” by hearing the appellant’s testimony, with a resulting "artificial harmony of testimony,” is obvious. Such an occurrence is precisely what sequestration is intended to prevent. Pierce v. State, supra at 664. Although the appellant claimed that the witness entered the courtroom unaware that she was a potential witness and unaware that witnesses were required to be sequestered, the trial court did not abuse its discretion in refusing to permit Ms. Jones to testify. Cf., Pierce v. State, supra; McKnight v. State, 33 Md. App. 280, 364 A.2d 116 (1976) , reversed on other grounds, 280 Md. 604, 375 A.2d 551 (1977) .

IV Perjury Warning by Trial Judge

At trial, Trooper D. Bruce Hornung of the Maryland State Police testified concerning an oral statement made by the appellant while he was being questioned by the police on February 12. Trooper Hornung testified to the appellant’s detailed account of the robbery and murder of Harry Waters, including the facts surrounding his participation therein. At trial the appellant testified at length. On direct examination, he gave testimony which duplicated in every pertinent detail the earlier statement which he had given, as recalled by Trooper Hornung; yet, when he was questioned on cross-examination concerning the oral statement, he denied having made certain statements attributed to him by the trooper and accused Trooper Hornung of testifying falsely. The court below then excused the jury and cautioned the appellant that he was under oath and that he could be charged with perjury if he failed to tell the truth. The court reminded the appellant that he had testified before the court at a suppression hearing held one week prior to trial and had indicated at that time that the trooper’s recollection of the oral statement was accurate. The court informed the appellant that he was attempting to contradict his earlier testimony and that he would be charged with perjury if he persisted in the attempt. Thereafter, following consultation with defense counsel and the return of the jury, the appellant admitted that Trooper Hornung’s account of the oral statement had been accurate.

The appellant contends that the trial court, by warning the appellant he would be charged with perjury if he testified falsely, denied him "the right to present his defense and thus violated due process of law.” He asserts that the actions of the court below make the instant case analogous to that of Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972), where the trial judge took it upon himself to deliver a lengthy and threatening statement, directed at the sole defense witness, advising the witness that he need not testify and admonishing him as to what the court considered to be the possibile penalties for perjury. The witness then declined to testify. The Supreme Court reversed Webb’s conviction holding that "the judge’s threatening remarks, directed only at the single witness for the defense, effectively drove that witness off the stand, and thus deprived the petitioner of due process of law under the Fourteenth Amendment.” Id. 409 U.S. at 98.

We find the instant case and Webb to be in no way analogous. In Webb, the trial court delivered its admonition before the witness had begun to testify; as the Supreme Court stated: "[T]he judge implied that he expected [the witness] to lie. ...” Id. 409 U.S. at 97. In the case at bar, the court cautioned the appellant only after he had begun to give testimony on cross examination which was inconsistent with that which he had given on direct. Unlike the trial court in Webb, the court below did not expect the witness to lie. The court acted only after it appeared that the witness had in fact lied: unlike the Webb court, whose apparent purpose was to intimidate and to prevent the witness from testifying, the court below acted only to insure that the witness testified truthfully.

Webb is also distinguishable in the quality and nature of the admonition delivered by the respective trial courts. In Webb, the court made predictions as to the consequences of giving pexjured testimony which may well have had little basis in fact; as the Supreme Court noted: "At least some of these threats [made by the Webb court] may have been beyond the power of this judge to carry out.” Id. 409 U.S. at 97. In contrast, the trial court here simply stated, in temperate and restrained language, that the appellant would be charged with peijury if he testified falsely. There is no denial of due process where the witness is merely advised that he may be charged with peijury if he commits peijury. See, United States v. Nunn, 525 F.2d 958 (5th Cir. 1976); United States v. Gloria, 494 F.2d 477 (5th Cir. 1974).

Unquestionably, a fundamental element of the due process guaranteed by the Fourteenth Amendment is the right of an accused to present a defense, to present his own witnesses, and to offer his own testimony, but an accused has no right to commit peijury. We hold that it is proper for a court to mildly caution a witness with respect to testifying truthfully and to advise the witness of the penalties for perjury where, based on the statements or actions of the witness, it appears that such an instruction is necessary to prevent or to terminate the commission of peijury. See, Commonwealth v. DiGiacomo, 345 A.2d 605, 607 (Pa. 1975) ("[WJhere the occasion for the admonition was obvious and its nature was not that of a threat, there is no basis for finding a parallel with the facts in Webb. ”)

V Additional Contentions

The appellant contends that the evidence presented at the trial was insufficient to sustain a finding that the victim was fatally injured during the course of a robbery; he also contends that the court below committed reversible error in its admission of hearsay testimony. The contentions are without merit.

It is well established that an extrajudicial confession or incriminating admission by an accused is not sufficient to warrant conviction of the accused absent either direct or circumstantial evidence, independent of the confession or admission, tending to establish the corpus delicti. Bagley v. State, 232 Md. 86, 192 A.2d 53 (1963); Franklin v. State, 8 Md. App. 134, 258 A.2d 767 (1969), cert. denied, 257 Md. 733 (1970). With regard to this requirement, this Court has stated:

"The sufficiency of this independent evidence need not establish, by itself, the corpus delicti beyond a reasonable doubt, but any facts and circumstances that are substantial in nature and fortify the truth of the confession or statement are sufficient to support a conviction. The character, nature, and amount of independent proof of the corpus delicti need not, of itself, be full and positive; it may be circumstantial in nature when direct evidence is not available. In short, the existence of such independent proof is to be determined largely by the circumstances of each particular case. And it has been held that testimony in proof of the corpus delicti is sufficient if it establishes facts that are consistent with the commission of a crime, although they may at the same time indicate, or be consistent with, a noncriminal causation.” 8 Md. App. at 140. (citations omitted).

As we stated in our discussion above, the appellant in the instant case testified at trial and confirmed the occurrence of and his participation in the robbery and murder of the victim. There was testimony presented at trial to the effect that the victim habitually carried large sums of cash upon his person; that prior to the occurrence of the robbery he had been displaying money in the bar; and that, when the victim was discovered the next morning, his wallet was empty and his trouser pocket was turned inside out. Finally, one Clyde Copes testified that, prior to the robbery, Barbara Marshall told him that she would "like to see the old man outdoors ... so I can get my hand on some money.”

We find that this evidence, all of which was independent of appellant’s oral statement, was sufficient to establish that the victim was robbed and that the victim was fatally injured during the course of that robbery. Cf. Stevens v. State, 232 Md. 33, 192 A.2d 73, cert. denied, 375 U.S. 886 (1963) (evidence independent of extrajudicial confession, held sufficient to establish corpus delicti of robbery).

The appellant also argues that the testimony of Sergeant Vernon Hope and of Corporal Willis G. Windsor was "replete” with hearsay, but the appellant fails to refer us to the specific statements which he contends were improperly admitted over his objection. As this Court has stated previously, it is the responsibility of the appellant to be specific in the assignment of error; the appellant "must pinpoint the errors raised on appeal and ... support [his] contentions with well-reasoned legal argument.” Federal Land Bank v. Esham, 43 Md. App. 446, 458, 406 A.2d 928 (1979); see, Md. Rule 1031. We decline to consider the question.

Judgement affirmed.

Appellant to pay the costs.

      . Of course, an accused who believes that he is being held without probable cause is not without remedy simply because he has been indicted by the Grand Jury. A writ of habeas corpus may be sought at any stage in the proceedings from any .judge other than a district judge. See, Md. Rules of Procedure, Chapter 1100, subtitle Z, Md. Cts. & Jud. Proc. Code Ann. §§ 3-701 et seq.

      . The appellant testified that he carried the victim to the victim’s truck, which was parked on Willow Street, and left him there. The appellant further testified that, while driving through Pocomoke at approximately 3 a.m. on the following morning, he viewed Willow Street and observed that the victim’s truck had been removed. The appellant’s testimony was given on the second dav of trial. (The appellant apparently intended that the jury infer from this testimony that, after the appellant left the victim in the parked truck, some third person drove away with the truck and the victim. Presumably, it was also to be inferred that Mr. Waters’ fatal injury was inflicted by this third person.) According to the proffer made by defense counsel, Ms. Jones, had she been permitted to testify, would have corroborated the appellant’s testimony concerning the removal of the victim’s truck. She would have testified that she had driven into Pocomoke at approximately 4 a.m. on the morning the victim was found and that she observed that no vehicles were parked on Willow Street at that time.

      . The witness in Webb was a convicted criminal currently serving time in prison. When he was called to the stand, the court delivered the following warning:
      "If you take the witness stand and lie under oath, the court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted of perjury in that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you are up for parole and the Court wants you to thoroughly understand the chances you’re taking by getting on that witness stand under oath.” Id. 409 U.S. at 96.

      . Such a warning should be given outside the presence of the jury. Cf., Long v. State, 31 Md. App. 424, 356 A.2d 588 (1976) (court’s instructions to sheriff, delivered injury’s presence, to hold witness following completion of testimony, implied that witness had committed perjury and was impermissible comment on witness’s credibility).


author: Liss, J.,

text:
    MAYOR AND CITY COUNCIL OF BALTIMORE v. ELMER BRUCE
    [No. 84,
    September Term, 1980.]

      Decided October 15, 1980.

      The cause was argued before Melvin, Liss and MacDaniel, JJ.

      John N. Spector, Assistant City Solicitor for Baltimore City, with whom was Benjamin L. Brown, City Solicitor for Baltimore City, on the brief, for appellant.

      Barbara Gold for appellee.
   Liss, J.,

delivered the opinion of the Court.

This is an appeal by the Mayor and City Council of Baltimore, appellant, from a judgment entered by the Baltimore City Court which reversed, on appeal, a decision of the Board of Municipal and Zoning Appeals (the Board) and directed the Board to permit the use of property owned by Elmer Bruce, appellee, as requested by the appellee.

On July 11, 1979, the appellee filed a permit application with the Construction and Buildings Inspection Division of the Department of Housing and Community Development in which he sought to use a brick building located at 1219 Hull Street in the Locust Point area of the city as a machine shop. The permit application was denied on July 12, 1979, and on that same day the appellee filed a notice of appeal and an appeal to the Board of Municipal and Zoning Appeals. On September 11,1979, the Board heard and denied the appeal. Appellee appealed to the Baltimore City Court, and after a hearing, the Court (Kaplan, J.) reversed the Board and directed it to issue a permit authorizing the property to be used for the purpose recited in appellee’s original application. The Mayor and City Council filed a motion for a new trial which, after a hearing in open court, was denied. The appellant then filed the instant appeal by which it raised the following issues:

1. Whether the Baltimore City Court erred in holding that the clear definition of the word "use” in the Baltimore City Zoning Ordinance required the conclusion that the Board of Municipal and Zoning Appeals was wrong in limiting the definition of "a structure all or substantially all of which is designed and erected for an industrial use” to buildings that were originally designed, erected for, and used for industrial purposes.

2. Whether the Court erred in not applying the "substantial evidence” or "fairly debatable” test to the decision of the Zoning Board?

1.

The property here involved is located at 1219 Hull Street in Baltimore City. The structure located on the land is a one-story masonry building containing approximately 5000 square feet of floor space. The building was erected about forty years ago by the International Longshoreman’s Union Local 829, and for the next four decades it has been used as a union and hiring hall. From the time of its erection, until 1971, the property was zoned for industrial use. The operation of a machine shop was a permitted use in an industrial zone under the then effective zoning ordinance. On April 20, 1971, the Mayor and City Council adopted a new comprehensive zoning ordinance by the terms of which 1219 Hull Street was classified as being in a residential zone. There is, at least, a suggestion that this was in the nature of "spot zoning” as a property immediately across a rear alley from the property in question was permitted to retain its industrial classification. It is to be noted that the operation of a machine shop would not be permitted in a residential zone under the circumstances of this case unless it was permitted as a non-conforming use.

Section 8.0-1 of Article 30 of the Baltimore City Zoning Ordinance provides: "Any non-conforming use or structure, or any non-complying structure, may be continued, subject to the regulations of this chapter.”

Section 8.0-3 of Article 30 regulates non-conforming structures and their uses as follows:

8.0-3 Non-conforming structures and uses thereof (CLASS 2)
This section is confined to the regulation of non-conforming structures and uses thereof, which structures and uses shall be known as Class 2.
a. Class 2 non-conforming structures and uses thereof shall include any structure all or substantially all of which is designed and erected for a use not permitted in the district in which it is located, and the uses thereof, including any non-conforming use of land accessory thereto.
d. Change. In Residence and Office-Residence Districts, a Class 2 non-conforming use shall not be changed to any other non-conforming use — except that the Board, in accordance with the authority and procedures established in Section 8.0-7 of this chapter, may authorize a change of a Class 2 non-conforming use which is located in a structure all or substantially all of which is designed and erected for an industrial use to a use permitted in the M-l Industrial District. Where a Class 2 non-conforming use is located in a structure all or substantially all of which is designed and erected for a business or other non-conforming use, the Board, in accordance with the authority and procedures established in Section 8.0-7 of this chapter, may authorize a change of such Class 2 non-conforming use to a use listed in the B-l Neighborhood Business District.
In B-l, B-2, B-3, B-4, B-5, M-l, M-2, and M-3 Districts, a Class 2 non-conforming use shall not be changed to any other non-conforming use — except that the Board, in accordance with the authority and procedures established in Section 8.0-7 of this chapter may authorize a change of a Class 2 non-conforming use to another non-conforming use which is similar in nature and character to the existing non-conforming use.
When a non-conforming use has been changed to a conforming use, it shall not thereafter be changed back to a non-conforming use.

Article 30, Section 8.0-7 governs the exercise of authority by the Board over changes, alterations and extensions of non-conforming uses and structures subject to the following standards and limitations:

The Board, after public notice and posting, may determine and authorize such changes, alterations, and extensions to non-conforming uses and structures, and may authorize the continuance of non-complying dwelling units in non-complying structures, in harmony with the purpose and intent of this ordinance, only in the specific instances set forth herein, where the Board makes findings of fact in accordance with the guides, standards, and limitations hereinafter prescribed and, further, finds that such authorization will not be contrary to the public interest.
a. Application. An application for any such change, alteration, extension, or continuance shall be filed with the Zoning Administrator, on a prescribed form. The application shall be accompanied by such plans and data as required by the Board pursuant to general rule.
b. Changes, alterations, and extensions to non-conforming uses and structures, and continuance of non-complying structures, shall be in accordance with the guides, standards, and limitations established in this chapter, and may be granted by the Board only in the following instances, and in no others:
1. to authorize a change on a non-conforming use' as limited and stated in Sections 8.0-3d and 8.0-4d of this chapter, provided that the Board shall first find in each case that:
(a) any emission of noise, vibration, smoke or particulate matter, toxic matter, odorous matter, fire or explosion hazards, or glare resulting from the proposed use would be no greater than those of the existing or last use of the property; and
(b) the new use will not generate a greater volume of traffic than the existing or last use of the property; and
(c) the proposed use will not occupy a greater portion of the lot and/or structure than the existing or last use of the property; and
(d) the effect of the new use on the health, safety, or general welfare of the community shall be no greater than the existing or last use of the property.

The Board, after hearing this case, adopted a resolution which said, in pertinent part:

In residence and Office Residence Districts, a Class II non-conforming use shall not be changed to any other non-conforming use except that the Board, in accordance with the authority and procedures established in Section 8.0-7 of this Chapter, may authorize a change of a Class II non-conforming use which is located in a structure all or substantially all of which is designed and erected for an industrial use to a use permitted in the M-l Industrial District. Where a Class II non-conforming use is located in a structure all or substantially all of which is designed and erected for a business or other non-conforming use, the Board, in accordance with the authority and procedures established in Section 8.0-7 of this Chapter, may authorize a change of such Class II non-conforming use to a use listed in the B-l Neighborhood Business District. A machine shop is listed as a permitted use in the M-l Industrial District.

The Board went on to say:

The Board, after having given due regard and consideration to the nature and condition of the adjacent uses and structures and the facts in this case, is of the opinion that the machine shop should not be allowed. The Board does not accept the appellant’s attorney’s position that if a building is designed and erected for an industrial use and not used for industrial purposes, it still may be changed to a use permitted in an M-l District. The Board finds that if a building is designed and erected for an industrial use, it must be used for industrial purposes, without interruption, otherwise it is without the authority to change the use to a machine shop or any other M-l use. The Board further finds that even if it accepted the fact espoused by the attorney representing the appellant that it still would generate more people and have an adverse impact on the community while at the same time disrupting a very stable, residential neighborhood. The Board feels that the proposed use would not minimize the objectionable impact and finds as a fact that the traffic would be increased and the use would adversely affect the community. The Board cannot accept the legal premise offered by the appellant nor was any compelling reason shown to exercise its discretion so as to allow the machine shop in this community.

In accordance with the above facts and findings, the Board disapproves the application.

Both the appellant and the appellee agree that the determination of the controversy in this case is based on the right of the Board to exercise its discretion to permit the use contemplated by the appellee. The record before the Board clearly established that the building at 1219 Hull Street had been designed and erected as an industrial building. There was detailed testimony that the building contained a solid concrete floor, heavy duty heating and wiring and commercial windows and a facade. The Board refused, however, to exercise its discretion to allow the appellee to use the building for an industrial purpose on the basis that in order for the Board to make an exception under Sections 8.0-7 and 8.0-3d of the zoning ordinance there was the requirement that the structure must have been continuously used for an industrial use similar to the proposed machine shop.

On appeal to the Baltimore City Court the presiding judge reached a contrary conclusion. In his oral opinion, he found as follows:

The Board may permit an exemption where what is involved is a structure, all or substantially all of which was designed and erected for an industrial use. The key words are "designed and erected for an industrial use.” The Board concluded that that means that the building must have been designed for, erected for, and used by an industry, such as an automobile manufacturer or any other kind of industry. The Board concluded that does not mean that the building today, if looked at, can be used for or is suitable for industrial purposes. I would have no trouble in finding that the Board was correct in their interpretation of this language but for the language in Paragraph 87 of the law defining the term "use” because the phrase that was discussed, "designed and erected for industrial use,” ties into the definition of use and that, as previously indicated, means any purpose for which a building or other structure or a tract of land may be used or occupied.
Well, obviously, there is no dispute that this building today is suitable for industrial use, though it was not designed or erected for an industrial purpose or used for the same, and there is also no dispute that it was originally designed and was erected and was used as a Union Meeting Hall. But the definition of "use”, when tied into that language, seems to me to require the conclusion that the Board was wrong in so limiting the definition to buildings that were originally designed, erected for and used for industrial purposes.

It seems clear to us that the provisions of Sections 8.0-3d and 8.0-7 were specifically included in the zoning ordinance to provide an opportunity for the Board to protect the legitimate interests of the owners of a non-conforming building or a non-conforming tract of land. Under the zoning ordinance adopted in 1971, the Zoning Board was granted the discretionary power to authorize a Class 2 non-conforming structure (the union hall) to be changed to a non-conforming use permitted in an M-l industrial district (the machine shop). The change, as authorized, was subject to the standards set out in Section 8.0-7. The record here establishes that the building in this case was originally erected in an industrial zone and that when it was erected it was designed and built so that it might be put to an industrial use. The building remained in an industrial zone for almost four decades. The structure was declared to be in a residential zone by reason of the adoption of the new zoning ordinance in 1971. The building continued to be used as a union hall until 1979 when the present proceedings were instituted.

The Board was bound to consider the entire ordinance in determining what the Board’s powers were in the instant situation. Further, it was bound by the legislative definition of the word "use” as defined in the statute which would not permit the Board to construe such a word according to its meaning in common parlance where that meaning differs from the legislative definition. 101A C.J.S. Zoning and Land Planning Section 103 at 375 (1979). The rule of statutory construction is clear that in ascertaining the intention of a legislative body all parts of a statute must be read together and all parts are to be reconciled and harmonized if possible. Thomas v. State, 277 Md. 314, 353 A.2d 256 (1976); Kadan v. Board of Supervisors of Elections, 273 Md. 406, 329 A.2d 702 (1974). All parts of the statute must be read together so that no part becomes superfluous. Employment Security Administration v. Weimer, 285 Md. 96, 400 A.2d 1101 (1979); Condominium Owners v. Supervisor of Assessments of Baltimore County, 283 Md. 29, 388 A.2d 116 (1978).

We agree with the trial judge that the Board erred in selecting the meaning of the word "use” which appeared to it to be most reasonable under the circumstances. In the light of the clear and unequivocal definition of "use” set out in the zoning ordinance, the Board was bound to accept that definition as the intended meaning of that word. See 1 Rothkopf, The Law of Zoning and Planning Section 9.03; Hunt v. Montgomery County, 248 Md. 403, 237 A.2d 35 (1968); Nooe v. City of Baltimore, 28 Md. App. 348, 345 A.2d 134 (1976).

While the Court of Appeals has established that where land alone is involved a mere intention to use it is not enough to establish a non-conforming use, we call attention to the fact that this case does not involve non-conforming land use. See Chayt v. Board of Zoning Appeals, 177 Md. 426, 9 A.2d 747 (1940). The appellant concedes that the Board had evidence before it that the structure on Hull Street was adaptable to the use requested by the appellee. We hold that the Board had the discretionary power to consider and grant the relief sought by the appellee and find that the Board erred in holding that under the law it had no such discretion.

2.

It seems clear to us that the Board adopted conflicting positions in reaching its decision in this case. The Board initially decided that it had no discretion to grant the permit sought by the appellant. The Board then decided that there was no evidence from which it could have found that the building here involved was designed and erected for industrial use. This conclusion was reached in the face of uncontradicted testimony that the building was of an industrial type, containing 5000 feet of solid concrete floor arranged as one room with offices. The witnesses stated that the building had a heavy duty wiring system, and a heavy duty heating plant. Further, the windows of the building were described as heavy duty wire type industrial windows. In addition, it was stated that the subject property had an industrial commercial facade on the front of the building. The testimony further described the structure as having fireproofed solid brick walls and that it was constructed as a multi-purpose building.

The Board then found that the use for the building proposed by the appellee would cause "traffic problems and other environmental and physical problems which would adversely affect the community.” That determination was based entirely on an opinion expressed by a neighbor located several houses from the property at 1219 Hull Street. The record is devoid of any factual basis for this finding by the Board. The trial judge accurately assessed the weight of that testimony when he said in his oral opinion:

The only evidence, if it can be called evidence, in the record is a conclusion of one individual who was not an expert in traffic matters or noise or pollution or, for that matter, anything. In any event, he said he believed the proposed use would cause these problems. Then the Board, based on that testimony, concluded that the Board feels that the proposed use would not minimize the objectionable impact and finds, as a fact, traffic would be increased and the use would adversely affect the community. Of course, the same use that was proposed for the Union Hall by the appellant, of which the Board had evidence, was the same machine shop operation which appellant carries on a couple of blocks down the same street. There was no evidence that at its present location, the machine shop is causing any difficulties or any damage to the community. In fact, the evidence was to the contrary.

Appellant urges that the trial court below erred in not applying the substantial evidence or fairly debatable test to the decision of the Zoning Board. In a recent case before the Court of Appeals, Cicala v. Disability Review Board, 288 Md. 254, 418 A.2d 205 (1980), Judge Davidson discussed the trial court’s function in reviewing the findings of an administrative agency. The Court stated that one of the issues to be determined on review is whether an administrative agency has acted arbitrarily and that "[o]ne of the ways in which an administrative agency acts arbitrarily is to reach a decision which is not based upon or supported by facts in the record.” Id. at 260. A reviewing court may not substitute its judgment for that of the administrative agency. Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 396 A.2d 1080 (1979); Marek v. Baltimore County Board of Appeals, 218 Md. 351, 146 A.2d 875 (1959), but rather, it is restricted "to a determination whether, based upon the record, a reasoning mind could have reasonably reached the factual conclusion reached by the administrative agency.” Id.

Where, however, as in this case, the record is devoid of evidence sufficient to raise a debatable issue, a reviewing court has the implicit power to declare a finding of a zoning administrative body invalid. See Howard Research and Development Corp. v. Zoning Board of Howard County, 263 Md. 380, 283 A.2d 150 (1971); Heller v. Segner, 260 Md. 393, 272 A.2d 374 (1971); Wells v. Pierpont, 253 Md. 554, 253 A.2d 749 (1969).

For these reasons we affirm the decision of the trial court in the present case.

Judgment affirmed, costs to be paid by appellant.

      . Baltimore City Zoning Ordinance (1979) appearing as Baltimore City Code (1966 Ed.) Article 30, Chapter 8.

      . Paragraph 87 of the Baltimore City Zoning Ordinance defines use as follows: "Any purpose for which a building, other structure or tract of land may be used or occupied. Also, any activity, occupation, business or operation carried on, or intended to be carried on, in a building or other structure or on a tract of land.”


author: Lowe, J.,

text:
    GLORIA A. POPE v. SECRETARY OF PERSONNEL
    [No. 86,
    September Term, 1980.]

      Decided October 16, 1980.

    The cause was argued before Moore, Lowe and Wilner, JJ.

      Theodore Levin for appellant.

      James F. Truitt, Jr., Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

—the trend—

The word "shall” has probably occupied the erudition of the Court of Appeals more than any other single term. In recent years the Court of Appeals has with increasing rigidity applied the principle of statutory construction that use of the word "shall” is presumed mandatory. Hirsch v. Dept. of Nat’l Resources, 288 Md. 95 (1980); In Re: James S., 286 Md. 702 (1980); State v. Hicks, 285 Md. 310 (1979); Johnson v. State, 282 Md. 314 (1978); United States Coin & Currency v. Dir., 279 Md. 185 (1977); Moss v. Director, 279 Md. 561 (1977); Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165 (1975). A practical qualifying pressure valve — "unless the context of the statute would indicate otherwise” — is invariably adhered to a recitation of that principle. See, e.g., Maryland St. Bar Ass’n v. Frank, 272 Md. 528, 533 (1974); Ginnavan v. Silverstone, 246 Md. 500, 505 (1967).

While the context of fewer and fewer statutes "indicate otherwise,” one of the contextual factors relied upon, "though not controlling,” to hold the use of "shall” directory is when a statute provides no penalty for failure to act within a prescribed time. See Maryland St. Bar Ass’n v. Frank, supra at 533; but see In Re: James S., supra. The case law provides very little in the nature of when or how to prognosticate where the exception should overcome the presumption. State v. Hicks, for example, acknowledged a statute governing the assignment of criminal cases for trial in which the term "shall” was held to be directory in Young v. State, 266 Md. 438 (1972), for the reason that the Legislature had not explicitly provided the extreme sanction of dismissal for administrative noncompliance. 285 Md. at 316. By having enacted a rule using the identical language of the statute which also lacked explicit sanctions, the Court of Appeals decided in Hicks that in the context of its rule, "shall” was intended to be mandatory. Id.

There is, however, a thread of continuity in one line of cases perceived and commented upon by Judge Smith writing for the Court in In Re: James S., supra. Since 1908, the Court of Appeals has stood firmly upon the premise that Art. IV, § 15 of the Maryland Constitution is directory only when it admonishes that the Court of Appeals "shall” file its opinions within three months of argument. McCall’s Ferry Co. v. Price, 108 Md. 96, 113 (1908). Similarly, a like provision for the circuit courts has been consistently interpreted as directory and not mandatory. Maryland St. Bar Ass’n v. Hirsch, 274 Md. 368, 374 (1975), cert. denied, 422 U.S. 1012 (1975); Davidson v. Katz, 254 Md. 69, 78 (1969); Pressley v. Warden, 242 Md. 405, 406-407 (1966); Myers v. State, 218 Md. 49, 51 (1958), cert. denied, 359 U.S. 945 (1959); Suttleman v. Bd. of Liq. Lic. Com’rs., 209 Md. 134, 140 (1956); Snyder v. Cearfoss, 186 Md. 360 (1946). These cases were discussed by Judge Smith in Resetar v. State Bd. of Education, 284 Md. 537 (1979), while giving similar consideration to a county board of education mandate upon itself.

"The Board shall. . . render a decision... within thirty (30) days. . . .”

The thread apparent in each of these cases which continue to digress from the contemporary trend, is that the directory duty imposed is on the "arbiter of the controversy” as opposed to the adversary. In Re: James S., supra at 708.

Before addressing the facts in the case before us there is another noteworthy digression from the inflexibility of the presumption that "shall” is mandatory, which relates to the role of the Court of Appeals as overseer of the legal profession. In Maryland St. Bar Ass’n v. Frank, supra, the Court of Appeals was concerned with Md. Code, Art. 10, §§12 and 13, establishing maximum and minimum limits for prosecutorial hearing disbarment proceedings. Although the Court referred to the legislative failure to provide a penalty, it noted that:

"Of more importance, it is clear that the broad policy of the law regulating conduct of attorneys authorized to practice law in this State is designed for the protection of the public, Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 549, 318 A.2d 811 (1974), and that purpose would be largely vitiated if respondent’s restrictive interpretation were to prevail.” 272 Md. at 533.

Notwithstanding the purposeful movement of the Court of Appeals toward holding the statutory use of "shall” as mandatory — despite the absence of a penalty provision — two instances thus will seemingly stem the tide:

1. When "shall” is used in an unsanctioned statute directed toward an arbiter’s time limitations for opining, and,
2. When the broad underlying policy of the law regulating conduct of an officer of the court is for the public protection.

—the case—

The case at bar involved the dismissal procedure of a tenured public employee. When the Maryland Commission on Human Relations filed charges against Gloria A. Pope on October 13, 1976, Md. Code, Art. 64A, § 33 provided that a tenured State employee may be removed for cause only upon the filing of charges with the Secretary of Personnel by the appointing authority. The Secretary was then given ninety days within which the case was to be heard, investigated and determined.

Ms. Pope’s hearing was scheduled for December 9, 1976, but was postponed due to her illness. Subsequent hearings were set for February 2, 1977, March 7,1977, and August 2, 1977, but were postponed without objection due to scheduling conflicts of appellant’s attorney, who is a legislator, or the attorney for the agency. Ms. Pope’s hearing was finally convened on February 14, 1977, but was again postponed and was not resumed until April 28 and 29, 1977, after the 1977 legislative session. It concluded on August 19, 1977. The Secretary of Personnel did not render his order until November 3, 1977. His order supported the dismissal of Ms. Pope for incompetency or inefficiency in the performance of her duty.

—the issue—

The single question raised on appeal here is academically beguiling:

"Is the time requirement for a hearing for removal from employment set forth in Article 64A, Section 33 mandatory or directory?”;

practically however, it has but little substance. Even if the provision in then Art. 64A, § 33 were mandatory, we find that appellant’s postponements effected a waiver of the statutory provision, State v. Hicks, supra at 335. Surely, if even constitutional rights may be waived, e.g., Maness v. Meyers, 419 U.S. 449, 466 (1975) (Fifth Amendment privilege against self incrimination can be waived affirmatively.); Barker v. Wingo, 407 U.S. 514, 522 (1972) (Sixth Amendment right to a speedy trial can be waived.); Singer v. United States, 380 U.S. 24, 34 (1965) (One charged with serious federal crime may waive constitutional right to jury trial.), statutory ones can be also. State v. Hicks, supra at 335.

Even assuming waiver, in light of the protracted period taken to terminate Ms. Pope’s employment, we will answer the question as it was asked and hold alternatively that the 90-day provision was directory, not mandatory. We so conclude because the role of the Secretary in this instance is primarily that of an arbiter despite that upon this appeal he is made a titular litigant. It is his judgment that has been appealed. Beyond that, his supervisory role over the classified employees of the State may be equated to that role exercised by the Court of Appeals over lawyers of the State. While he, like the courts, owes a duty of fairness to the litigant he supervises, "the broad policy of the law regulating [public employees] in this State is designed for the protection of the public, ... and that purpose would be largely vitiated if [appellant’s] restrictive interpretation were to prevail.” Cf. Frank, supra at 533.

We further note significantly the absence of a sanction in the statute. Were we to have held this delay to be a prejudicial violation of a mandatory limitation, appellant does not suggest to us either a remedy or a sanction, and, indeed, none of a judicial nature occur to us. We were not asked to reverse the Secretary’s factual finding that Ms. Pope was incompetent, and thus we could hardly do so; nor could we reinstate an incompetent employee at public expense to punish administrative neglect. A practical, if not judicial, solution might have been to provide that she be paid her salary for the period from when the opinion should have been rendered until it was rendered, perhaps — letting the punishment fit the crime — with a proportionate reduction in the Secretary’s salary. But that is not a solution open to the court. The absurdity of the alternative sanction and the absence of a more reasonable solution enforces our view that the provision was intended as directory by the Legislature, not only because it specified no meaningful sanction but also because none was readily apparent as was observed in the In Re: James S. case by comparison with limitations statutes. 286 Md. at 713.

We caution, however, that Art. 64A, § 33 was amended in 1978 providing the Secretary an additional 45 days in which to render such opinion.

"... The Secretary of Personnel shall render this decision within 45 days after a hearing is held before him or his authorized representative or within 45 days after all legal memoranda or briefs have been filed.”

Our opinion in this case must not be construed as deciding whether the statute as amended is mandatory or directory. The possibility exists that the Legislature recognized the limitations of its prior time limits under the directory provisions and by extending those limits intended to mandate compliance. There is equally likely the possibility that even if the provision is mandatory for the Secretary, reinstatement would not be an appropriate sanction. See State v. Hicks, supra at 335, on motion for reconsideration regarding the 30-day requirement of Rule 746 that a trial date be set within 30 days.

Our singular holding in this case is that the provision in Art. 64A, § 33, prior to July 1,1978, directing the Secretary of the Department of Personnel to investigate, hear and determine charges within 90 days was directory and even as such, was waived by appellant.

Judgment affirmed.

Costs to be paid by appellant.

      . Hicks then reversed the Court of Appeals’ former adoption of our interpretation in Young and expressly overruled that case. 285 Md. at 334.

      . Prior to its amendment in 1978, Art. 64A, § 33 stated in pertinent part:
      "No employee who has completed his probation may be permanently removed from the classified service except for cause, upon written charges and after an opportunity to be heard in his own defense. Such charges may be filed by the appointing authority or by any citizen, provided, however, that no such charges may be filed by a citizen, without the consent of the appointing authority or of the Secretary, and such charge shall within ninety days after filing, be heard, investigated and determined by the Secretary or by some person or board appointed by the Secretary to hear, investigate and determine the same.”

      . We note that the General Assembly was in session during the months of January, February and March of 1977, and that attorney-legislators have a right to postpone any case while so convened. Md. Code, Cts. & Jud. Art., § 6-402 (a).

      . The legislature did not convene on that day until 8:00 p.m.

      . We do not subscribe to the comment of appellee, however, that State Employee Personnel Regulation .06.01.01.49 could obviate a legislative mandate, if such it were, through the Department’s regulatory authority.


author: MacDaniel, J.,

text:
    FRANKLIN B. DARBY v. STATE OF MARYLAND
    [No. 112,
    September Term, 1980.]

      Decided October 16, 1980.

    The cause was argued before Mason, Liss and MacDaniel, JJ.
    Submitted on brief by Alan H. Murrell, Public Defender, and Nancy L. Cook, Assistant Public Defender, for appellant.

      Ann E. Singleton, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and
      R. David Fordham, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

In September 1979, appellant Franklin Darby was indicted for escape from the Maryland House of Correction. He was tried before a jury in the Circuit Court for Anne Arundel County on January 7, 1980, and found guilty. A five-year sentence was imposed.

In this appeal appellant presents two questions:

(1) Was he denied his right to have process for his witnesses?
(2) Was his base file erroneously admitted into evidence?

Finding merit in neither of these allegations of error, we shall affirm appellant’s conviction.

Appellant was charged with having escaped from the Maryland House of Correction on or about August 22, 1979. Appellant requested that writs of habeas corpus ad testifícandum be issued for twenty-six of his fellow inmates. Five days prior to trial the court held a hearing to consider appellant’s request.

Appellant’s counsel advised the court that appellant’s defense was going to be "along the lines of Robinson v. State, that there was certain self help in the escape.” 2345When asked to proffer the witnesses’ testimony, appellant asserted that they would testify that "the whole thing is a threat, the whole Maryland House of Correction.” Specifically, he asserted that they would testify that on July 4, 1979, a correctional officer threatened to "beat [appellant’s] head in.” Appellant explained that although not all twenty-six inmates were present at the time of the alleged threat, nevertheless they "knew all about it.”

The trial court expressed concern that summonsing twenty-six inmates "would place a burden on the security of the courthouse.” The court also found that, as a matter of law, the witnesses’ testimony was not relevant to appellant’s necessity or duress defense. In view of the fact that seven weeks had elapsed between the date of the threat and the date of appellant’s escape, the court ruled that there had been more than sufficient time for him to first make a complaint and resort to the courts. Declining to issue the requested writs, the trial court stated:

". . . this is just to summons in twenty-six inmates to attempt to try the system, and if he’s permitted to pull in twenty-six inmates to testify to absolutely nothing relevant about the case, then there’s no reason why he can’t issue a writ for every inmate in the state of Maryland. It’s just merely an attempt to destroy the system which I will not be part to. Motions’s denied.”

Defense counsel then noted his objection:

"I don’t know as there’s any law that we can discover that says that he cannot have any person subpoenaed in his behalf. I think he has a constitutional right to that, irrespective of what they have to say and I would so mention that to the Court.”

Appellant here renews the objections to the court’s ruling which he made at trial. He asserts that the United States Constitution, the Maryland Declaration of Rights and the Maryland Rules of Procedure expressly grant an accused in a criminal case the right to have witnesses testify on his behalf, and to secure the attendance of witnesses through compulsory process; and that they impose upon the court the duty to summons any witness whose presence is requested.

The Sixth. Amendment to the Constitution of the United States provides, in;.part:

"In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Article 21 of the Maryland Declaration of Rights states:

"That in all criminal prosecutions, every man hath a right ... to have process for his witnesses;

And Maryland Rules of Procedure 742, § b, provides in part:

"Upon the request of a party filed at least nine days before trial ... the clerk shall issue a summons commanding , a witness to appear to testify at a hearing or trial____”

To restate his argument, appellant asserts that the Sixth Amendment, Article 21 of the Declaration of Rights and Maryland Rule 742 b. confer upon him an absolute right to compulsory process. That is to say, he asserts that they confer a right which is not, nor may be, conditioned upon his ability to demonstrate the necessity for the witness’ presence, or the relevance or materiality of his testimony. Appellant suggests that the Court of Appeals’ decisions in Blount v. Wright, 189 Md. 294 (1947) and Edmondson v. Brady, 188 Md. 96 (1947), and our decision in Van Meter v. State, 30 Md. App. 406 (1976), are authority for his proposition. They are not. Edmondson and Blount stand merely for the proposition that although the Declar ation of Rights assures a defendant process for his witnesses (ceteris paribus) it does not guarantee the attendance of witnesses. Edmondson, at 102; Blount, at 296-97. As for Van Meter, we fail to see how it furthers the discourse in any way whatever.

Although we have carefully reviewed the decisions of this Court and the Court of Appeals, we are aware of no Maryland case addressing the precise question presented here.

We turn first to consider appellant’s constitutional challenge to the trial court’s ruling. We think it is well established in other jurisdictions that the Sixth Amendment right to compulsory process is fundamental but not absolute. State and Federal courts have held that the right is assertable only where the witnesses to be called will offer competent and material testimony. Thus, for example, in Commonwealth v. Jackson, 324 A.2d 350 (Pa. 1974), the Supreme Court of Pennsylvania stated, at 354-55:

"Article I, section 9, of the Pennsylvania Constitution guarantees an accused the right 'to have compulsory process for obtaining witnesses in his favor....’ A similar provision is contained in the United States Constitution. U.S.Const. Amend. VI. See also Act of May 31, 1718, 1 Sm.L. 105, § 4, 19 P.S. § 783. The right to compulsory process encompasses the right to meet the prosecution’s case with the aid of witnesses, and the right to elicit the aid of the Commonwealth in securing those witnesses at trial, both of which are fundamental to a fair trial. This constitutional right, though fundamental, is not, however, absolute. Evidentiary rules based on legitimate state interests which exclude certain witnesses or certain testimony are not inconsistent nor incompatible with the right to compulsory process. Accordingly, where certain witnesses’ testimony would not be admissible at trial, the Constitution does not require that a defendant be given the right to secure the attendance of witnesses which he has no right to use. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Our inquiry is thus directed to the question of the admissibility of the testimony which would have been given by the two witnesses whom appellant requested to be subpoenaed.” (Footnote omitted.)

The Court held that the trial court did not err in denying subpoenas for the witnesses since the proffered testimony was irrelevant.

And in State v. Ahearn, 403 A.2d 696 (Vt. 1979), the Supreme Court of Vermont held:

"A trial court is not required to issue compulsory process for anyone whom an accused may designate as a witness.... Compulsory process is only required where the witnesses to be called will offer competent and material testimony.... The burden is on the defendant to show that competency and materiality.... The trial court has wide discretion to determine which witnesses requested by an indigent defendant should be subpoenaed at government expense, and its decision will not be disturbed except in cases of clear abuse.”
(Citations omitted.) 403 A.2d at 704.

And finally, in Davis v. United States, 390 A.2d 976 (D.C. 1978), the District of Columbia Court of Appeals held that the defendant was not denied his Sixth Amendment right to compulsory process when the trial court quashed his subpoenas; the trial court had ruled that the defendant had not made a. clear showing that the witnesses’ testimony was necessary to prevent prejudice and injustice. The Appellate court stated, at 390 A.2d 980-81:

"Finally, appellant contends that he was denied his Sixth Amendment right to compulsory process when the trial court quashed three subpoenas which had been served by Mr. Davis on the Attorney General of the United States, the Acting Chief of the Metropolitan Police Department, and the Director of the Maryland Lottery. Appellant wanted these individuals to testify as to the operation of lotteries in general, the extent of their existence in the District of Columbia, and the efforts of the government to regulate them. It is apparent that appellant intended to use this testimony to support his claim of selective enforcement.
The right of an accused to have compulsory process for obtaining witnesses in his favor is undisputed; nevertheless, there are limitations on that right. The Supreme Court delineated those limitations in holding that an accused was denied his right to compulsory process where the 'State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.’ Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967) (footnote omitted). Here, appellant can show neither (1) that the witnesses could testify as to events of which they had personal knowledge, or (2) that their testimony was relevant and material to the defense.”

Accord, United States v. Linn, 460 F.2d 1274 (10 Cir. 1972); United States v. Beasley, 479 F.2d 1124 (5 Cir. 1973).

Upon the weight of this authority, therefore, we hold that appellant’s Sixth Amendment right to compulsory process was not infringed in this case. It was clear from appellant’s proffer that none of the twenty-six witnesses’ testimony would be relevant to the issues sought to be raised in appellant’s defense. Furthermore, it was also apparent that a substantial part of that testimony would be inadmissible hearsay in any event.

Appellant also contends that the trial court’s decision violated Maryland Rule 742. Appellant asserts that, "unlike, for example, Federal Rule 17 (b), the Maryland Rule does not require any showing of necessity before the right to process attaches;” that "the rule is formed in mandatory terms,” and that it "is not meant to serve merely as a guideline, but is to be strictly complied with.”

In our view, these assertions do little more than beg the question here. We note, for example, that the Sixth Amendment’s guarantee of compulsory process, which we construed earlier, is couched in terms equally as "mandatory” as those of the rule. It is true, as appellant points out, that the rule does not specifically refer to a standard of relevance or materiality. It makes no reference to competency, either. Yet we hardly think a party could insist upon the right to subpoena witnesses known both to the court and counsel to be incompetent to testify under any circumstances. However, appellant’s interpretation of the rule, if permitted to prevail in this case, would accomplish the same result.

This Court and the Court of Appeals have often said that the Maryland Rules of Procedure are "precise rubrics” which are to be read and followed. Williams v. State, 22 Md. App. 714 (1974); Brown v. Fraley, 222 Md. 480 (1960). But it must also be remembered that the Maryland Rules were, after all, established to promote — not to impede — the orderly and efficient administration of justice. Robinson v. Bd. of County Comm’rs, 262 Md. 342 (1971).

As we construe the rule, the trial court’s actions in this case were perfectly justified. In view of appellant’s proffer of testimony the trial court concluded, rightly in our view, that the testimony sought to be elicited was irrelevant to the issues being raised in appellant’s defense, and further, that a significant portion of the testimony would be inadmissible hearsay under any circumstances. That being the case, we think the issuance of twenty-six writs of habeas corpus ad testifícundum would have served no useful purpose, but instead would only have wasted the resources of the St ate. Nothing in the rule required this result. We find no error in the trial court’s decision on this issue.

Appellant next contends that the trial court erroneously admitted into evidence three exhibits from his base file. He asserts that the State failed to establish a proper foundation for the base file prior to moving its admission under the business records exception to the hearsay rule, § 10-101 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland. Specifically, he asserts that, aside from offering evidence that "the base file was obtained from the record room at the Maryland Correction Institution,” the State offered no proof that it was kept in the regular course of business; nor did their custodian testify to his familiarity with the records, the record-keeping process or the trustworthiness of the records.

We think the answer to appellant’s challenge is contained in our opinion in Watkins v. State, 42 Md. App. 349 (1979), at 355-56:

"Appellant ... raises one other issue: whether a testimonial foundation must be established before a commitment record of an inmate may be admitted into evidence under the business record exception to the hearsay rule. In Maryland, before a document is admissible into evidence to prove an act, transaction or event under the business record exception to the hearsay rule, Code (1974, 1978 Cum. Supp.) Cts. and Jud. Pro. Art. sec. 10-101, there must be a showing that when the record was made, it was made in the regular course of business as a memorandum or record of that act, transaction or occurrence.
We said in Thomas v. Owens, 28 Md. App. 442, 448, 346 A.2d 662 (1975): 'While normally this foundation is shown by testimonial evidence, the statute [Cts. Art. sec. 10-101, supra] sets forth no such requirement. At times a court may properly conclude from the circumstances and the nature of the document involved that the proffered document was made in the regular course of business.’ Levine v. Beebe, 238 Md. 365, 370, 209 A.2d 67 (1965); Tellez v. Canton Railroad Co., 212 Md. 423, 432, 129 A.2d 809 (1957); Morrow v. State, 190 Md. 559, 59 A.2d 325 (1948); Gordon v. State, 14 Md. App. 245, 257, 286 A.2d 833, 841 (1972).
Furthermore, the rule in Maryland is that business records may be introduced, even though hearsay in nature, 'when the entry meets the test of "necessity and circumstantial guaranty of trustworthiness.” ’ Burroughs International Co. v. Datronics Engineers, Inc., 254 Md. 327, 348, 255 A.2d 341 (1969).
In the present case, the commitment record was introduced into evidence to show that the appellant was legally detained and confined as required by the elements of the offense of common law escape. The fact that the Department of Correction maintains a base file on every prisoner which includes among other documents a commitment document indicates that the record was made in the regular course of business.”

Judgment affirmed.

Appellant to pay the costs.

      . In Robinson v. State, 42 Md. App. 617 (1979) this Court recognized a limited defense of necessity to a charge of escape, provided that all the following conditions were established:
      "(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;

      (2) There is no time for a complaint to the authorities or there exists a history of futile complaints which makes any result from such complaints illusory;
      (3) There is no time or opportunity to resort to the courts;

      (4) There is no evidence of force or violence used towards the prison personnel or other 'innocent’ .persons in the escape; and
      (5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.” (Emphasis added.) 42 Md. App. at 621.

      . Our disposition of appellant’s Sixth Amendment challenge shall apply equally to appellant’s Declaration of Rights argument.

      . Federal Rule of Criminal Procedure 17 (b) provides:
      "(b) DEFENDANTS UNABLE TO PAY. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.”