author: Orth, C. J.,

text:
    JOHN GORDON FIRSTMAN et ux. v. ATLANTIC CONSTRUCTION AND SUPPLY COMPANY
    [No. 116,
    September Term, 1975.]

      Decided October 3, 1975.

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

      Roy B. Cowdrey, Jr., with whom was George J. Goldsborough, Jr., on the brief, for appellants.
    No appearance for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

REMOVAL OF ACTIONS AT LAW

Constitutional Provisions and Rules of Procedure

The “Judiciary Department” of this State is as authorized by article IV of the Constitution of Maryland. Section 19 of the article divides the State into eight Judicial Circuits. From two to five counties comprise each of the first seven Circuits, and Baltimore City constitutes the eighth. Section 1 of the article vests the “Judicial power” of the State in certain enumerated courts, including “Circuit Courts” and “such Courts for the City of Baltimore, as are hereinafter provided for.” Section 20 provides for a Circuit Court for each county, “to be styled the Circuit Court for the County, in which it may be held”, with jurisdiction over law and equity actions and criminal causes. Section 27 provides for the Courts of the City of Baltimore: “There shall be in the Eighth Judicial Circuit, six Courts, to be styled the Supreme Bench of Baltimore City, the Superior Court of Baltimore City, the Court of Common Pleas, the Baltimore City Court, The Circuit Court of Baltimore City and the Criminal Court of Baltimore.” The jurisdiction of these Courts is set out in § 28: “The Superior Court of Baltimore City, the Court of Common Pleas, and the Baltimore City Court shall, each, have concurrent jurisdiction in all civil common law cases, and concurrently, all the jurisdiction which the Superior Court of Baltimore City and the Court of Common Pleas now have, . . .” with designated exceptions which do not derogate from their general jurisdiction over actions at law.

In article 20 of the Declaration of Rights of the Constitution of Maryland the People of the State declared “That the trial of facts, where they arise, is one of the greatest securities of the lives, liberties and estate of the People.” But the Constitution also recognizes that a party may not be able to have a fair and impartial trial in the court in which a case is pending. With respect to an action at law, article IV, § 8 provides that it will be “. . . transmitted to some other Court having jurisdiction in such case for trial. . .”, “. . . upon suggestion in writing under oath of either of the parties to said proceedings that such party cannot have a fair and impartial trial in the court in which the same may be pending....” Thus, a party in a law action, upon suggestion properly made, had one absolute right of removal to another court having jurisdiction. The right may be subject to reasonable procedural restraint to promote the administration of justice. Dillon v. White’s Ferry, Inc., 268 Md. 118 (1973); Shreffler v. Morris, 262 Md. 161 (1971). Maryland Rule 542 implements the constitutional provisions and sets out the procedural regulations governing the right of removal. Bullock v. State, 230 Md. 280 (1962). Among other procedures, it requires, as does the Constitution, that the suggestion for removal be in writing under oath of either of the parties to the action. It also specifies that the suggestion may not be of counsel. Rule 542, § a 1. Section 3 of the Rule provides that the right of removal is waived unless the written suggestion is filed within 60 days after the action is at issue. See Caledonian Fire Ins. Co. v. Traub, 86 Md. 86 (1897). Thereafter, an action may be removed only by order of court for good cause shown.

Section 1 of Amendment XIV to the Constitution of the United States prohibits a state from denying to any person within its jurisdiction the equal protection of the laws.

It was the interplay of these constitutional provisions which provided the basis on which the Court of Appeals, in Davidson v. Miller, 276 Md. 54 (1975), held that the provisions of article IV, § 8, pertaining to removal of civil actions at law violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States, and, therefore, was unenforceable “so long as the present multiple civil common law court system exists in Baltimore City.” 276 Md. at 82.

Judicial Construction

It was early decided by the Court of Appeals, steadfastly followed, and recently affirmed, 4that the transfer of an action at law from one of the law courts of the Supreme Bench of Baltimore City to another of the law courts of the Supreme Bench of Baltimore City “gratifies the constitutional provision of a removal to some other court having jurisdiction.” Johnson v. State, 258 Md. 597, 600-603 (1970) declared that a case is removed, not to be heard before another judge, but to be tried in a different locality, to rid the trial of the influence of such community or local bias or prejudice as would manifest itself in the locality in which the case originated. *** The appellants in Middleton v. Morgan, 263 Md. 154, 156 (1971) relied upon this in contending that the Baltimore City practice of “a removal from one court in Baltimore to another does not gratify the purpose and desired effect of the constitutional provision.” They recognized that the rule of law then existing was flatly against their contention, but they strongly urged “that the case should be distinguished because in 1882 each court in Baltimore drew its own panel of jurors and in 1971, although each court has its own panel, all the jurors are treated as a pool and may sit from time to time in any court.” Id., at 156. The Court was not persuaded. It said, at 158:

“It is clear that the basis of decision in Weis kittle was not that each court in the City drew its own panel of jurors (this being no more than a passing observation), but that each court in the City was a distinct and separate court within a circuit and since the Constitution does not require a removal to be to a court without the circuit, a removal within the City gratified the constitutional right of removal.... In 1971 as in 1882 Baltimore City is still a circuit and the various courts within that circuit are still separate and distinct. We find Weiskittle to be controlling.”

The petitioners in Davidson made substantially the same claim, but presented it in a different posture. Whereas Middleton had simply affirmed the position of the Court of Appeals that the transfer of an action at law from one Baltimore City law court to another satisfied the removal provisions of the Constitution of Maryland, the petitioners in Davidson contended, not that such practice violated the Maryland Constitution, but that it denied them the equal protection of the laws guaranteed by the Constitution of the United States. Reassessing its view of article IV, § 8, in this light, a majority of the Court of Appeals ***7 concluded that equal protection of the laws was indeed denied when, as to Baltimore City, the absolute right of removal permitted an action at law to be removed from one law court to another within the City, while, as to each county, the transfer of such action was from one county to another county. The Court held, therefore, that “the portion of Article IV, section 8, which reads ‘and in all suits or actions at law, issues from the orphans’ court, or from any court sitting in equity’ and the other language relating to this ... [as well as the language in Rule 542 relating thereto] is unenforceable so long as the present multiple civil common law court system exists in Baltimore City.” 276 Md. at 82. The effect of the holding was, in the words of Chief Judge Murphy in his dissent, “to excise all those provisions from § 8 of Art. IV of the Constitution of Maryland which afford litigants in civil law cases an automatic right of removal to another court upon mere suggestion in writing, under oath, that a fair and impartial trial cannot otherwise be obtained. . . .”

THE INSTANT CASE

Facts

On 5 September 1974 Atlantic Construction & Supply Company (Atlantic) instituted an action ex contractu in the Circuit Court for Talbot County against John Gordon First-man and Joyce Firstman, his wife, (the Firstmans) by the filing of a declaration. On 14 October the Firstmans pleaded the general issue and further answered, averring that they did all things required of them under the contract but that it had been breached by Atlantic. Appended to the answer was a counterclaim to which Atlantic pleaded the general issue on 25 October 1974.

Atlantic attempted three times to have the action removed. The first two times the suggestion was improper in form. The third Suggestion for Removal was filed on 24 December 1974, and the same day the court ordered the action removed to the Circuit Court for Caroline County for trial. On 26 December the Firstmans moved that the Suggestion for Removal not be received because it was filed too late. On 30 December they moved to strike the order of 24 December, giving for reasons that the Suggestion for Removal was not timely filed and that the order was entered without allowing them time to respond thereto. On 23 January 1975 the court found upon hearing that the Suggestion for Removal had been timely filed. It denied the Motion to Strike and affirmed its order of 24 December 1974 removing the cause to the Circuit Court for Caroline County for trial. The Firstmans noted an appeal from the order of 23 January 1975 denying their Motion to Strike.

The Status of the Appeal

On 21 April 1975, this Court, upon its own motion, dismissed the appeal as prematurely taken. On 2 May the Firstmans moved that we reconsider and rescind our order of dismissal. Upon reconsideration, we concluded that we erred in dismissing the appeal, and on 13 May we rescinded our order. We explain why we did so.

Ordinarily, a party may appeal from a final judgment entered in a civil case by a circuit court, Courts Art. § 12-301, which includes the various Supreme Bench courts, Courts Art. § 12-101 (d). The Court of Appeals said flatly in Dunnigan v. Cobourn, 169 Md. 110, 113 (1935):

“The right of removal is conferred by article 4, section 8, of the Constitution of Maryland, and its denial or abridgement is ground for direct appeal. Griffin v. Leslie, 20 Md. 15, 19, 20; Negro Jerry v. Townshend, 2 Md. 274, 277; Wright v. Hammer, 5 Md. 370, 375; Kimball v. Harman, 34 Md. 401, 407; McMillan v. State, 68 Md. 307, 308, 309, 12 A. 8; Seth v. Chamberlaine, 41 Md. 186, 195; Gittings v. State, 33 Md. 458, 462; Condon v. Gore, 89 Md. 230, 234, 42 A. 900; Tidewater Portland Cement Co. v. State, 122 Md. 96, 99, 89 A. 327.”

In Greenberg v. Dunn, 245 Md. 651 (1967), a non-jury action at law was removed at the instance of the plaintiff from the Superior Court of Baltimore City to the Circuit Court for Carroll County. The defendant’s motion for recision of the order was denied and the defendant appealed. The Court observed, at 653:

“The sole issue to be decided is whether the court had the power of removal under the circumstances. The appellee originally sought to dismiss the appeal on the ground that the order appealed from was interlocutory but now concedes that it was final and appealable under Dunnigan v. Cobourn, 169 Md. 110, 113; McMillan v. State, 68 Md. 307, 308; Elliott v. Larrimore, 203 Md. 526, 528.”

The power of a court to remove an action is to be distinguished from the discretion of a court exercised in determining to which court a case shall be removed. The latter is an interlocutory action and will be reviewed only after final judgment. Middleton v. Morgan, supra, at 158-159. Here, the issue was whether the court below had the power to grant Atlantic an automatic removal in the circumstances. The court’s action thereon is ground for direct appeal.

The Propriety of the Suggestion for Removal

It is manifest that at the time of the order of 24 December 1974 removing the action from Talbot County to Caroline County for trial, Atlantic was entitled to the removal as a matter of right if there was compliance with the procedural regulations. The only question with regard to such regulations was whether Atlantic waived its absolute right of removal by failing to file a suggestion within 60 days after the action was at issue as required by Rule 542, § a 3. The suggestion was not filed within 60 days of the date of the filing of the plea by the Firstmans to the declaration. It was filed on the sixtieth day from the filing of the answer by Atlantic to the counterclaim. We think that the action here was at issue within the contemplation of Rule 542, § a 3, on 25 October 1974 when the answer to the Firstman’s counterclaim was filed by Atlantic, and not on 14 October 1974, when the answer to Atlantic’s declaration was filed by the Firstmans. In Warchall v. Murphy, 23 Md. App. 424, 429 (1974), we found that “it necessarily follows to obtain the patent objective of Rule 542, § a 3, that a responsive pleading which brings an action to issue is a plea, responding to an original pleading, which is filed with the object of bringing the action to factual issue or to trial, that is, a plea going to the merits — a plea in bar.” We think that here it was the answer to the counterclaim which was the plea going to the merits which brought the action to factual issue, that is, the filing of that plea put the case in the posture of being ready for trial. See generally Elliott v. Larrimore, 203 Md. 526 (1954). As the suggestion was filed within 60 days from the filing of this plea, there was no waiver of the right of removal. See Rule 8. Therefore, Atlantic was entitled, under the status of the law on 24 December 1974, to an absolute right of removal.

The Effect of Davidson v. Miller, supra.

Our conclusion that the action of the court below, in ordering the case removed for trial, and in denying a motion to rescind its order so doing, was proper under the law in effect on 24 December 1974, is not dispositive of this appeal. Pending the appeal, the law changed. The action of the court below was predicated upon the absolute right of Atlantic to have the cause removed as prescribed by the Constitution of Maryland. The constitutional provisions requiring the action taken by the court below are no longer enforceable by the dictate of Davidson v. Miller, supra, which, as we have indicated, declared that the constitutional provision as to absolute right of removal was unenforceable “so long as the present multiple civil common law court system exists in Baltimore City.” We take judicial knowledge that it still exists. The question is, then, what effect does the Davidson holding have on the propriety of the order of 24 December 1974 transferring the action to Caroline County for trial.

The right of removal of an action was the subject of the appeal in Price v. Nesbitt, 29 Md. 263 (1868). “An action of ejectment was instituted in the Circuit Court for Baltimore County, and upon the suggestion of the plaintiffs lessors, was removed to the Superior Court of Baltimore, in the year 1863. Shortly thereafter, on the 14th of September 1863, a suggestion for removal was made by one of the defendants, supported by affidavit that he could not have a fair and impartial trial, and asking that the cause might be removed ‘to any Circuit Court authorized by the Acts of Assembly.’ An answer resisting this application and traversing the averment of the suggestion, was not filed until the 14th of October, 1865, and thereupon the court (Martin, J.) overruled the suggestion for removal.” The Court of Appeals found that under art. IV, § 9, of the Constitution of 1864, and the Act of 1865, ch. 187, then in force, the judgment of the lower court was right and proper. But art. IV, § 8, of the Constitution of 1867, and the Act of 1868, ch. 180, thereafter enacted, largely extended the right of removal, so that under the law existing at the time the case was before the Court of Appeals, the denial of the suggestion for removal was wrong and improper. It was argued that the appeal must be governed and decided by existing laws at the time of consideration by the appellate court without regard to what were the provisions of the former law. The Court said:

“In U. S. v. Sch’r Peggy, 1 Cranch, 110, Chief Justice Marshall says: ‘It is, in the general, true that the province of an appellate court is only to inquire whether a judgment when rendered was void or not. But if subsequent to the judgment, and before the decision of the appellate court a law intervenes, and positively changes the rule which governs, the law must be obeyed or its obligation denied.’ This doctrine has been recognized and settled by this court in Atwell v. Grant, 11 Md. 104; State v. Norwood, 12 Md. 206; Keller v. State, 12 Md. 326, and will be applied to the decision of this case.” 29 Md. at 266.

It reversed the judgment, finding, under existing laws, that the appellant was entitled to a removal of the cause. The same rule was set out and applied in Wade v. St. Mary’s Industrial School, 43 Md. 178 (1875), the Court stating, at 181:

“It is a settled doctrine, that courts in deciding questions arising before them, will look to the law as it is at the time, and are not to be governed by what it may have been — unless proceedings under a prior existing law had been complete, or rights had become vested. This principle has been held to apply as well to cases before an appellate court, as to those that are pending in courts of original jurisdiction.”

To like effect see Turner v. Bryan, 83 Md. 373, 374 (1896); Cockerham v. Children’s Aid Society, 185 Md. 97, 102 (1945); Woman’s Club v. State Tax Comm., 195 Md. 16, 19 (1949); Yorkdale v. Powell, 237 Md. 121, 124 (1964). See also Young v. State, 14 Md. App. 538, 554, and n. 12 at 555-556 (1972). The Court put it thus in Yorkdale v. Powell, supra, at 124:

“Maryland consistently has followed the rule that ‘an appellate court is bound to decide a case according to existing laws, even though a judgment rightful when rendered by the court below should be reversed as a consequence,’ as Judge Marked, for the Court, repeated in Woman’s Club v. State Tax Comm., 195 Md. 16, 19 (or, it may be noted, even when a judgment wrong when rendered is made right by the change in the law). See also for this proposition that a change in the law after a decision below and before final decision by the appellate Court will be applied by that Court unless vested or accrued substantive rights would be disturbed or unless the legislature shows a contrary intent, Keller v. State, 12 Md. 322; Day v. Day, 22 Md. 530; Gordy v. Prince, 175 Md. 688; Cockerham v. Children’s Society, 185 Md. 97; and Tudor Arms Apts. v. Shaffer, 191 Md. 342.”

The quote from United States v. Schooner Peggy, 1 Cranch 103, set out in Price v. Nesbitt, supra, is enlarged in Linkletter v. Walker, 381 U. S. 618 (1965) at 626 and in n. 8 at 623. This additional language appears: “... the court must decide according to existing laws, and if it be necessary to set aside a judgment . . . which cannot be affirmed but in violation of law, the judgment must be set aside.” The opinion of the Court in Linkletter went back to the common law, at 622-623:

“At common law there was no authority for the proposition that judicial decisions made law only for the future. Blackstone stated the rule that the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one.’ 1 Blackstone, Commentaries 69 (15th ed. 1809).” (footnotes deleted)

The Court observed, at 623:

“This Court followed that rule in Norton v. Shelby County, 118 U. S. 425, 6 S. Ct. 1121, 30 L. Ed. 178 (1886), holding that unconstitutional action ‘confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.’ At 442, 6 S. Ct. at 1125.”

The Court concluded, at 627, that under its cases it appeared “that a change in the law will be given effect while a case is on direct review”, and “[t]hat no distinction was drawn between civil and criminal litigation... ”, citing cases. It noted, at 628: “While the cases discussed above deal with the invalidity of statutes or the effect of a decision overturning long-established common-law rules there seems to be no impediment — constitutional or philosophical — to the use of the same rule in the constitutional area where the exigencies of the situation require such an application.” It believed “that the Constitution neither prohibits nor requires retrospective effect.” At 629. See Wiggins v. State, 275 Md. 689 (1975).

The short of it is that in reviewing the propriety of the action of the lower court in this case, we apply the law as declared in Davidson v. Miller, supra.

When the holding of Davidson is applied to the order issued by the trial court on 23 January 1975, wherein it denied the motion to strike the order of 24 December 1974 removing the case to Caroline County for trial and expressly affirmed the removal order, it is patent that the order was improper. Without question, the denial and affirmance were predicated upon the absolute constitutional right of Atlantic to have the action removed, a right to be granted automatically upon proper suggestion, which the court found had been made. But Davidson declared that the constitutional provision bestowing the right could not be constitutionally enforced, so that in legal contemplation it was as inoperative as though it had never been adopted. We vacate the order of 23 January 1975 and the order of 24 December 1974. Maryland Rule 1075, § a.

Our vacating the order of 24 December 1974 removing the action to the Circuit Court for Caroline County for trial, places the case back in the Circuit Court for Talbot County, but it does not dispose of this appeal. The majority in Davidson hastened to point out, 276 Md. at 83, that the effect of the ruling “will in no way deprive or otherwise curtail the circuit courts of the counties or the circuit-level civil courts of Baltimore City from exercising their common law discretionary power (which is subject to appellate review for abuse) to remove an action to another jurisdiction, within or without the circuit, in order to rid the case of any prejudicial barnacles which, because of local prejudice, passion or interest, may have attached; thus, as near as is reasonably possible, an action’s consideration by a fair and impartial jury can be insured. Shreffler v. Morris, 262 Md. 161, 277 A. 2d 62 (1971); Heslop v. State, 202 Md. 123, 126, 95 A. 2d 880 (1953); Negro Jerry v. Townshend, 2 Md. 274, 278 (1852); Price v. State, 8 Gill 295 (1849).” Thus, despite the unenforceability of the automatic, absolute right of removal provided by the Constitution of Maryland, a party to a law action, having made proper suggestion that he cannot have a fair and impartial trial in the court in which the action is pending, is entitled to the opportunity to make it satisfactorily appear to that court that such suggestion is true, or that there is a reasonable ground that it is true. If he succeeds in making it so appear, the case should be removed in the sound exercise of judicial discretion. We, therefore, remand the case to the Circuit Court for Talbot County with direction that, if Atlantic so desires, a hearing be conducted within such reasonable time as that court may designate. At the hearing, Atlantic shall be afforded the opportunity to show that its suggestion that it cannot have a fair and impartial trial in the Circuit Court for Talbot County, is true or that there is reasonable ground that it is true, and the Firstmans shall be afforded the opportunity to contravene the truth of the suggestion. Upon the hearing, the court below shall take such action with respect to the suggestion as is appropriate.

Order of 23 January 1975 vacated; order of 24 December 1974 vacated; case remanded for further proceedings pursuant to this opinion; costs to be paid one-half by appellants and one-half by appellee; mandate to issue forthwith.

      . Weiskittle v. State, 58 Md. 155 (1882).

      . DeMurguiondo v. Frazier, 63 Md. 94, 96 (1885); Atlantic & George’s Creek Congol. Coal Co. v. Md. Coal Co., 64 Md. 302, 304 (1885); Marzullo v. Kovens Furniture Co., 253 Md. 274, 276 (1969).

      . Middleton v. Morgan, 263 Md. 154 (1971).

      . See Rule 568 of the Rules of the Supreme Bench of Baltimore City concerning the trial of a case removed from one common law civil court of Baltimore City to another of such courts. It does not apply to criminal proceedings.
      See also Maryland Rule 1200, § c 2 (b), under the heading “Removed Cases — Approval Authority”, and Rule 5, § e providing that “Circuit” includes the Supreme Bench of Baltimore City.

      . Some of the cases supporting this view were decided before the legal sufficiency of the evidence in a criminal case was subject to review on appeal. See Ex Parte Bowles, 164 Md. 318, 328 (1933). But Johnson v. State, 258 Md. at 601-603 made clear that the right of removal does not depend on whether a case is to be tried before a jury or the court.

      . Davidson involved an automobile-pedestrian personal injury action. David Davidson and the Davidson Transfer and Storage Company, defendants below, appealed to the Court of Special Appeals from substantial judgments rendered against them. The case went to the Court of Appeals on certiorari before consideration of the appeal by the Court of Special Appeals. Courts Art. § 12-201.

      . Murphy, C. J. dissented to this part of the opinion of the Court. Pointing out that the majority concluded that “no reasonable basis conceivably exists for distinguishing between the scope of the automatic removal right granted to litigants in civil law cases in the Eighth Judicial Circuit from that authorized in the other seven judicial circuits of the State”, even though "no evidence bearing on the matter” was adduced in the proceedings below, he thought “the opinion of the Court goes too far and accomplishes too much on a record devoid of supporting evidentiary justification.” 276 Md. at 87-88.

      . The constitutional provision does not relate to equity cases. Olson v. Love, 234 Md. 503 (1964). Certain non-jury law cases are removable under the provisions. Greenberg v. Dunn, 245 Md. 651 (1967).

      . The first Suggestion was of counsel rather than the party and was not under oath. It was not acted on by the court. The second Suggestion, on the record before us, appeared to lack the oath and did not contain a statement of points and citation of main authorities as required by Maryland Rule 319. The court ordered removal but upon hearing granted a motion to strike the order.

      . It appears that the second basis given for the Motion to Strike was not pressed at the hearing and, therefore, was not determined by the court.

      . We also found that a case was “at issue” as to a defendant when he is in default for failure to comply with the requirements as to time allowed for pleading. 23 Md. App. at 430. There is no suggestion of such default here.

      . We think that the law as announced by an appellate court in its written opinion is in effect and controlling as of the date of the filing of the opinion, and remains the law unless subsequently changed. As to the requirement of the Court of Appeals to file an opinion in writing in every case, see art. IV, § 15, Constitution of Maryland. As to the requirement of the Court of Special Appeals to file an opinion in every case, see Rule 1092, § a.
      The mandate, ordinarily issued thirty days after the opinion is filed, Rules 876, 8 b, and 1076, § b, evidences the action of the appellate court on the particular judgment appealed from, Rules 876, § a, and 1076, § a. It serves to direct the lower court to proceed according to its tenor and directions, Rules 876, § d, and 1076, § d. See Klopfer v. Werber, 264 Md. 419 (1972). The opinion announces the law; the decision is expressed in the opinion; the mandate is the order issued on the decision.
      The view that the opinion fixes the law as of the date the opinion is filed is supported by one of the retroactivity tests followed by the Supreme Court of the United States, Johnson v. New Jersey, 384 U. S. 719, 733 (1966), declared that Escobedo v. Illinois, 378 U. S. 478 (1964) and Miranda v. Arizona, 384 U. S. 436 (1964) applied to cases “commenced after these cases were announced.” (emphasis added). Stovall v. Denno, 388 U. S. 293, 296 (1967) stated that United States v. Wade, 388 U. S. 218 (1967) and Gilbert v. California, 388 U. S. 263 (1967) affected “only those cases and future cases which involved confrontations for identification purposes conducted in the absence of counsel after this date,” 12 June 1967, when the opinion was filed, (emphasis added).

      . Young did not apply the rule. It was decided on the question of legislative intent.

      . Linkletter contains an outline of the history of the rule and an interesting discussion of it, pro and con. 381 U. S. at 622-629.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    CLEMENT FRANKLIN MILLS v. STATE OF MARYLAND
    [No. 20,
    September Term, 1975.]

      Decided October 6, 1975.

    The cause was argued before Orth, C. J., and Gilbert and Moore, JJ.

      William, A. Linthicum, Jr., Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andreiv L. Sonner, State’s Attorney for Montgomery County, and William J. Hickey, Jr., Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Clement F. Mills, appellant, was convicted of rape, armed robbery and two counts of kidnapping by a jury in the Circuit Court for Montgomery County (Shure, C. J. presiding), and received a twelve-year sentence. From the judgments entered thereon, he appeals.

On July 13, 1974, in Gaithersburg, two married women, ages 22 and 23, were accosted at knife-point by a male who forced them to drive him in their car to a secluded, rural area where he robbed and raped one of them. He then compelled the victims to drive him back to Gaithersburg where he exhibited them to a number of the community residents, then left the car and walked away. After the women returned to the rape victim’s apartment, where their husbands were awaiting their return from an errand, the police were called.

The following day, Detective Thomas D. Evans took the rape victim in a police car through residential areas in Gaithersburg at which time she observed and identified the appellant, Clement F. Mills, as her attacker. Mills was arrested and taken to the Wheaton-Glenmont Police Station. He received his Miranda warnings and asked for an attorney’s presence during interrogation. The police made two telephone calls but could not secure an attorney’s services for appellant at that moment. Mills spoke with an attorney who had been assigned by the Public Defender to represent him in another matter but the latter explained that he could not assist appellant in the instant case without formal authorization. Evans did not attempt thereafter to question Mills about the offenses. He desisted, he said, because the answers to any such questions would be inadmissible at trial, in view of Mills’ request for an attorney.

Evans did, however, ask Mills for his address and for a specific and detailed description of the house where he resided — including the colors of the walls, floors and door of the room which he occupied. His purpose was apparently twofold: to complete a form pertaining to arrested individuals and to obtain information he believed necessary for the acquisition of a warrant to search Mills’ residence for the knife described by the victims. Evans verified the address with Mills’ uncle and an unidentified woman who came to the station house with the uncle on the afternoon of the arrest.

The next day, a District Court Judge in Montgomery County signed a search warrant and, upon execution, a 9-inch hunting knife with sheath was found in appellant's room. A pretrial motion to suppress was denied and the knife and sheath were identified at trial by the victims as having been used by their assailant.

Prior to trial the State petitioned to have a sample of appellant’s blood taken, representing that “in order ... to go forward with certain evidence ... it is necessary to obtain a blood sample from the defendant to determine his blood group .... as necessary corroboration to other scientific evidence.” This petition, filed on November 20, 1974, was styled a “Motion for Appropriate Relief.” It in no way complied with the standards pertaining to applications for search warrants found in Art. 27, Md. Code Annot. § 551 (1974 Supplement). On November "21, 1974, the trial court ordered, without a hearing, that such sample be taken “by the State of Maryland Department of Medical Examiners . ..; counsel for the defendant may be present.” At trial there was expert testimony, based upon the blood test, that both Mills’ blood and the semen stains on the rape victim’s clothing contained blood group factor A and that the victim also had type A blood.

Appellant had been identified on the street by the rape victim and at a lineup by the other victim of the kidnapping. Both of them had described a distinctive scar on appellant’s forearm and the knife and sheath found pursuant to the search warrant. Appellant, his girlfriend, and two of her friends testified that he had been at his girlfriend’s house during the time the offenses were being committed. A policeman testified that the girlfriend had previously made contrary statements to him.

Mills rests his appeal upon two grounds. He argues that the knife and sheath should not have been admitted into evidence because the application for the warrant did not establish probable cause for the search and certain of the facts recited in the application were obtained in a manner violative of Miranda. His second contention is that the evidence of the blood test was inadmissible because the blood sampling was a search and seizure and no search warrant had been obtained. We address these contentions in that order.

I — THE KNIFE AND SHEATH

Appellant contends that the knife and sheath should have been suppressed on the grounds that:

“(a) The facts as recited in the application for the search warrant did not establish probable cause for the search, and
(b) An essential portion of the facts were [sic] obtained from the appellant in violation of his rights under the Fourteenth Amendment of the United States Constitution.”

We shall dispose of (b) first. Assuming, arguendo, that the details learned by Detective Evans after Mills had requested an attorney were “essential”, we are not persuaded that Mills’ constitutional rights were abridged.

At oral argument appellant’s counsel urged upon this Court that Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975), in which fruits of an unlawful search were held to have provided invalid affidavits supporting an application for a search warrant, rendered the instant search warrant, and therefore the admission into evidence of the knife and sheath, unlawful. We conclude otherwise. Simply put, there was no poisonous tree here. That portion of the warrant application which was based on Mills’ answers to Evans’ questions about the details of the residence was not tainted.

Indeed, the entire Miranda argument is inapposite since there was a singular lack of any admission, confession or other inculpatory statement on Mills’ part. As a federal court observed, in respect of a warrant based on similar questioning:

“The place where [defendant] lived was, of course, not a matter within [his] exclusive knowledge, and he no doubt recognized that a little investigation by the officers would locate that place.” Farley v. United States, 381 F. 2d 357 (5th Cir. 1967).

See, also, Clarke v. State, 3 Md. App. 447, 240 A. 2d 291 (1968) where Judge Morton, writing for the Court, stated:

“The questions were routine; were ordinarily addressed to every individual who was subject to the booking procedure; and were not intended to elicit answers which would incriminate Appellant.”

We thus do not find that the acquisition of information concerning Mills’ residence violated Mills’ rights.

The remaining question is, therefore, whether the affidavit as presented demonstrated probable cause within its four corners, as required. We think that the law in Maryland is clear in this regard. In Grimm v. State, 6 Md. App. 321, 251 A. 2d 230 (1969), cert. denied 397 U. S. 1001 (1970) and Reidy v. State, 8 Md. App. 169, 259 A. 2d 66 (1969) this Court found no defects in warrants issued to search residences where weapons used in the commission of recent crimes could reasonably be found. Chief Judge Murphy, in Reidy, where the affidavit related that an individual had been shot with a .22 caliber weapon and that there was a witness to the crime who identified the defendant as the perpetrator, observed:

“We think that it was reasonable, given the information set out in the application for the warrant, for police to believe that the gun used in the crime could be found in appellant’s house.” [Citing Grimm.]

We reach the same conclusion concerning the knife and sheath in the instant case and therefore find no error in their admission.

II — THE BLOOD TEST

It is clear that all blood tests are seizures subject to the reasonableness requirement of the Fourth Amendment to the United States Constitution. Mr. Justice Brennan, writing for the Supreme Court in Schmerber v. California, 384 U. S. 757 (1966) noted, at 767, that “[i]t could not reasonably be argued . . . that the administration of the blood test in this case was free of the constraints of the Fourth Amendment.”

Both the State and appellant here rely on Schmerber. In that case, as in most reported blood-test cases, the purpose of the test was to determine the alcoholic content of the defendant’s blood as a means of establishing his intoxication vel non. Since the alcohol level in human blood diminishes rapidly after the ingestion of alcohol ceases, the Court, in Schmerber, while finding that blood tests were within the scope of the Fourth Amendment, carved out an exception to the warrant requirement because the time necessary to seek out a magistrate and secure a warrant could lead to the dissipation of evidence. Preston v. United States, 376 U. S. 364 (1964). That such immediacy is not involved when the objective of a blood test is the determination of blood type rather than alcohol content seems self-evident.

Indeed, the permanence of blood types has been judicially noticed in Graves v. Beto, 301 F. Supp. 264 (E.D. Tex. 1969), aff'd 424 F. 2d 524 (5th Cir. 1970) and Commonwealth v. Davenport, 308 A. 2d 85 (Pa. 1973). In each of these cases it was held to have been error for the results of a Mills-like blood test to have been admitted.

In Graves, a convicted rapist who had exhausted his State remedies sought a writ of habeas corpus in a United States District Court. That Court held that an unconsented, warrantless test for blood type was an unlawful search and seizure and the writ issued. District Judge Justice quoted Schmerber as to the necessity of a warrant:

“Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.” 301 F. Supp. at 265. [Italics in Graves.]

In Davenport the Pennsylvania Supreme Court ruled that a murder conviction could not stand where it was based in part on a warrantless blood typing. The Court cited Schmerber concerning the propriety of warrantless searches where evidence was threatened with destruction and Cupp v. Murphy, 412 U. S. 291 (1973) regarding the need to “preserve the highly evanescent evidence” (fingernail scrapings) at issue there. Justice Pomeroy then observed:

“No such dangers, however, excused the warrant requirement here. Whereas the percentage of alcohol in the bloodstream begins to diminish shortly after drinking stops and a person can easily scrub his hands to destroy incriminating evidence, the blood type of an individual never changes. Similar characteristics of fingerprints prompted the Supreme Court of the United States in Davis v. Mississippi, 394 U. S. 721, 728 .. . (1969) to hold that ‘the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context.’ ” (Emphasis added.) At 87, 88

We agree that there is no exigent-circumstances exception to the warrant requirement of the Fourth Amendment where the State desires to test an individual’s blood type. It was error for the trial court to order the blood test without strict compliance with the warrant requirements contained in Art. 27, Md. Code Annot. § 551 (1974 Supplement). As Judge Gilbert stated for this Court in Robinson v. State, 18 Md. App. 678, 308 A. 2d 734 (1973), “We think the withdrawal of appellant’s blood . . . was violative of the appellant’s constitutional rights. . . .” At 694, 695.

Upon careful examination of the record, however, we find that the appellant in this case has effectively waived his right to object to the admission in evidence of the blood test results because they were not brought out in the first instance by the State but came in, on redirect examination by the State of its expert witness, only after the subject of blood tests had been opened up by appellant’s trial counsel on cross-examination.

After the serologist was qualified as an expert witness, his testimony was limited on direct examination entirely to the point that he had found semen stains on the pants and “panties” of the victim. Thus he testified:

“Q All right, and did you subsequently conduct an examination on those two items?
A Yes, sir; I did.
Q And what were the results of your examination?
A First of all, on . .. the area of the crotch in the panties, ... I identified the presence of semen containing spermatozoa, the male reproductive cells.... [I]n the same area, the crotch of the pants, I also identified semen containing spermatozoa, once again the male reproductive cells.
MR. HICKEY: I have no further questions, Your Honor.”

Immediately thereafter, on cross examination by the defense, the following colloquy ensued:

“Q Agent Gavin, did you conduct any other examinations in this case, other than on the two specimens that you have just testified about?
A Yes, I did.
Q And those examinations were of items submitted to you also by Detective Swain?
A Yes, sir.
Q What other kinds of examinations did you conduct?
A Examined other articles of clothing to determine the possibility of the presence of-either blood or semen.
Q What articles of clothing did you examine, if you recall?
A The other articles would be a sweater and a brassiere.
Q And what was the result of your examination of those articles?
A On the sweater ... I determined that human blood was present; however, it was too limited in quantity to conduct any grouping tests upon it.
Q Where was the blood on the sweater?
A Blood was in, around the neck of the sweater.
Q Around the neck of the sweater?
A Towards the top of the sweater, yes, sir.
Q But you were not able to type it, or tell anything further about it?
A That is correct.
Q Now, in examining the semen that you identified, or testified to on direct examination was on the girl’s pants and panties, were you able to tell anything else about the semen, other than that it contained spermatozoa?
A Yes, sir. I was.
Q What else could you telVl
A In examining the dried stains of other body fluids, sometimes it is possible to determine the presence of a blood group in the dried stain. About eighty-five percent of the population are what we call secretives. They secrete their blood group factors in other body fluids, not just blood.
In examining [the victim’s clothing], I determined in the semen stain the presence of A blood group factor.
Q Now, could you determine that the stain was semen?
A Yes, sir; I could.
Q Is it possible that the stain could have been vaginal fluid or anything of that kind?
A (No response.)
Q Or mixed in with the semen somewhat?
A It is not possible for me to tell the presence of vaginal fluid, and that is why in determining the blood group, I do not report it as semen originating from an individual who is A, but simply the presence of the A blood group factor, because the possibility of the presence of semen mixed with vaginal fluid does exist.”

Only after the aforegoing sequence of examination did the State, on redirect examination, advert to the blood test. The witness was asked by the State:

Q Mr. Gavin, did you conduct an analysis of a sample of blood submitted to you, marked Clement Franklin Mills?
A Yes, sir; I did.
Q All right, and did you conduct an analysis of that blood for a blood type?
A Yes, sir; I did.
Q And what was the conclusion of that analysis?
A The liquid sample of blood identified to me as having originated from Clement Franklin Mills was determined to be group A blood.
MR. HICKEY: No further questions.”

On recross, the serologist was also asked to give testimony concerning the victim’s blood type:

“Q Special Agent Gavin, did you also take a blood sample from the [victim] in this case?
A Yes, sir; I did receive a blood sample from her. I didn’t take it personally.
Q Did you examine it?
A Yes, sir; I did.
Q What type blood was she?
A She was also determined to be group A.
Q What percentage of the population has group A blood?
A Right now it’s approximately forty percent of the population in the United States have group A blood.”

It is well established in Maryland that error cannot be asserted where the evidence whose admission constitutes the alleged error is elicited by appellant’s counsel. Welsh v. Welsh, 248 Md. 619, 237 A. 2d 739 (1968); Bean v. State, 234 Md. 432, 199 A. 2d 773 (1964); Eastern Shore Brokerage and Commission Co. v. Messenger, 143 Md. 221, 122 A. 18 (1923); Gray v. State, 10 Md. App. 478, 271 A. 2d 390 (1970); Tierney v. State, 7 Md. App. 56, 253 A. 2d 528 (1969).

Since appellant, rather than the State, caused the results of the unconstitutional blood test to be brought before the jury, we find that his claim of error is not properly before us.

Judgments affirmed.

      . The rape victim testified that appellant had told her that the purpose of the exhibition was to permit his “partners” to “get” the women if they went to the police.

      . Appellant’s counsel did not move to vacate or set aside the trial court’s order but filed, on November 21, 1974, “Defendant’s Objection to Order of Court dated November 21,1974.”

      . There is a wealth of authority in other jurisdictions in direct support of the proposition that a search warrant concerning a multiple unit building is not fatally unspecific where it contains no more than the street address of the building and the name of the party whose unit is to be searched. See, e.g., State v. Gallo, 279 So. 2d 71 (Fla. App. 1973); People v. Mayfield, 217 N.E.2d 100 (Ill. App. 1966); In re G. 314 N.Y.S.2d 547 (N.Y. Cty. Family Ct.1970); State v. Cortman, 446 P. 2d 681 (Ore. 1968); and Manley v. Commonwealth, 176 S.E.2d 309 (Va. 1970). In Maryland, the Court of Appeals has held that where the affidavit described one room and the warrant authorized a search of the entire premises, the warrant was not defective. Tucker v. State, 244 Md. 488, 224 A. 2d 111 (1966), cert. denied 386 U. S. 1024 (1967). This Court has found no fatal defect in a warrant pertaining to an entire building where the police were directed to the defendant’s room immediately upon entry. Butler v. State, 19 Md. App. 601, 313 A. 2d 554 (1974).

      . “The court takes judicial notice of the fact that human blood groupings are genetic in their character and not subject to change; hence, there could have been no emergency in connection with the obtaining of the blood sample from petitioner.” 301 F. Supp. at 265.

      . Lack of consent was found not in an affirmative objection, as in the instant case, but in vitiated consent due to the prosecution’s misrepresentation about the purpose of the blood test.


author: Gilbert, J.,

text:
    PRINCE GEORGE’S COUNTY, MARYLAND et al. v. JOHN FAHEY
    [No. 22,
    September Term, 1975.]

      Decided October 6, 1975.

    The cause was argued before Morton, Gilbert and Lowe, JJ.

      Benjamin R. Wolman for appellant, cross-appellee.

      Fred R. Joseph, with whom were Kaplan, Smith, Joseph, Greenwald & Laake on the brief, for appellee, cross-appellant.
   Gilbert, J.,

delivered the opinion of the Court.

Under date of July 19, 1973, Deputy Sheriff John Fahey, appellee-cross appellant, received a letter from Don Edward Ansell, Sheriff of Prince George’s County, Maryland, in which Fahey was apprised that:

“You are hereby advised as your Department Head I am considering your dismissal from this department for violation of Merit System Ordinance Section 13-101 -#l-Unsatisfactory Performance and Section 13-101-#10-Any immoral or unethical conduct which reflects unfavorably on the County as an employer, to wit:
On July 17, 1973 at approximately 10:10 P.M. you did respond to 5021-26th Ave., Hillcrest Heights, Md. where you arrived at the scene at approximately 10:10 P.M. Upon arrival at the scene you did approach one Joseph Bodecker, asked him his name and asked him to get out of his vehicle. When he leaned toward the glove box compartment you did, without provocation, pull and point your firearm at Mr. Bodecker and threaten his life. You did then, illegally, search the person of Mr. Bodecker and discover what you referred to as an illegal weapon and failed to place charges as a result of this illegal weapon. You then released Mr. Bodecker from your custody.”

Within the time prescribed Fahey answered, in writing, the charges. It is enough to know that Fahey’s answer was exculpatory in nature. The sheriff, however, was apparently unsatisfied by Fahey’s response, and on July 30, 1973, informed Fahey:

“I have reached a final decision and you are hereby advised that your employment with this department is terminated at the close of business July 30, 1973.”

Prince George’s County has adopted a Personnel Ordinance designated as Chapter 13 of the Prince George’s County Code of Ordinances and Resolutions. Section 13-102 of the Personnel Ordinance provides that a party aggrieved by disciplinary action may appeal to the Merit Board which shall conduct a hearing and make a final determination. Fahey appealed to the Merit Board. The Board conducted a hearing with respect to Fahey, and on October 22, 1973, handed down its decision and “Findings of Fact.” The Board determined that the charges leveled in the Sheriffs letter to Fahey on July 19, 1973, were “supported in fact and evidence presented to the Board.” The Board further ascertained that while the disciplinary action was “severe in this case” that, nevertheless, when considered with the “severity of [the] offense” the Sheriffs discretionary authority had not been abused.

As he was permitted to do under 1 Prince George’s County Ordinances and Resolutions § 13-103 (1968), Fahey appealed to the Circuit Court for Prince George’s County. There Judge Joseph A. Mattingly reversed the action of the Board on the ground that the evidence did not support the finding of the Board. He also ordered the payment to Fahey of one-half of the sum of wages that Fahey would have earned had his employment not been terminated.

Displeased with Judge Mattingly’s ruling, the County noted an appeal to this Court, asseverating that the hearing judge ignored the substantial evidence that supported the Merit Board’s findings, and that the court had substituted its judgment for that of the Board. Fahey filed a cross appeal in which he claimed that he was entitled to all of his lost wages, not merely one-half. Fahey further moved to dismiss the County’s appeal on the ground that no such appeal is sanctioned by 1 Prince George’s County Code of Ordinances and Resolutions, Ch. 13, and, therefore, under Courts and Judicial Proceedings Article § 12-302 the matter is not properly appealable.

Section 13-103 of the Prince George’s County Code of Ordinances and Resolutions provides:

“(a) Appeals to the circuit court shall be taken in the manner prescribed under Rule B of the Maryland Rules of Procedure.
(b) Additional evidence may be presented if written application by a petition to show cause is made to the court before the date set for hearing for leave to present additional evidence on the issues in the case either by the party appealing or any party in interest. And if it is shown to the satisfaction of the court, after a hearing thereon, that the additional evidence is material and that there were good reasons for failure to present it in the proceedings before the merit board, the court shall order that the additional evidence be taken before the merit board for the taking of such additional testimony. In cases where the additional evidence is taken before the merit board, they may modify or reverse their previous findings and decision by reason of the additional evidence and shall file with the reviewing court to become part of the record any additional evidence together with any modifications or new findings or decision.”

While the Personnel Ordinance sets forth the right to appeal to the county circuit court, it significantly does not provide for an appeal to this Court. It is a fundamental principle of law that in those cases where a trial court exercises a special limited appellate jurisdiction, which has been conferred by statute, no appeal from the trial court to this Court is permitted absent a statutory provision authorizing further appeal to us. Sugar v. North Balto. M.E. Church, 164 Md. 487, 499, 165 A. 703, 707-08 (1933). See also Urbana Civic Ass’n v. Urbana Mobile Village, Inc., 260 Md. 458, 461, 272 A. 2d 628, 630 (1971). Of course, if the County Merit Board were a State agency an appeal could be taken pursuant to the provisions of the State Administrative Procedure Act. Md. Ann. Code art. 41, § 244, et seq.

Although the Prince George’s County Merit Board is an administrative agency, it is not a “. . . State board, commission, department or officer. . .”, (Emphasis supplied), nor is it authorized to make rules or adjudicate cases within the scope of the State Administrative Procedure Act. Furthermore, Judge Digges, writing for the Court of Appeals in Urbana Civic Ass’n v. Urbana Mobile Village, Inc., supra, 260 Md. at 462, 272 A. 2d at 631, articulated that county agencies are not within the ambit of the State Administrative Procedure Act.

The law in Maryland is that unless a State legislative enactment has delegated to a county the authority to sanction appeals from county agencies to the courts, the county is without the power to provide for such appeals. Urbana Civic Ass’n v. Urbana Mobile Village, Inc., supra. Where the legislature has permitted the county to authorize appeals to the courts, no appeal may be taken, except on jurisdictional grounds, Bd. of Med. Examiners v. Steward, 203 Md. 574, 580-81, 102 A. 2d 248, 251 (1954), unless a county ordinance expressly provides for the appeal. Where, as here, the county presumably possesses the power to authorize appeals to the courts, but by the terms of its ordinance the county has limited the appeal to the circuit court, no further appeal is sanctioned. In the absence of an express grant of appellate jurisdiction, we cannot entertain a review of “the decision of the circuit court in this special statutory proceeding except on jurisdictional grounds.” Urbana Civic Ass’n v. Urbana Mobile Village, Inc., supra at 461. Inasmuch as jurisdiction is not involved in the instant case, we are devoid of authority to review the circuit court’s decision. Accordingly, we grant Fahey’s motion to dismiss the appeal. For the same reasons we dismiss sua sponte Fahey’s cross appeal.

One week before oral argument in this matter, Fahey filed a “Motion to Supplement Brief’ and simultaneously submitted a paper writing styled “Supplementary Appendix: Partial Transcript of Personnel Board Hearing.” We deny the motion and reject the so-called “Supplemental Appendix.” There is no authority under the Maryland Rules of Procedure for either the motion or the “Supplemental Appendix.” But see Md. Rule 1028.

Appeals dismissed.

Costs to be paid by appellant.

      . The Merit Board is comprised of “three members who support merit principles and are registered voters of the county.” Terms of the members are for a period of three years after the initial staggered term, and no member of the Board is allowed to hold any position which is regulated by the County Merit Board. See, 1 Prince George’s County Code of Ordinances and Resolutions, Ch. 13, § 13-2 (1968).

        . The Rule, effective July 1,1975 provides:
      “The appellant may include in an appendix to his reply brief such additional part of the record as he deems material and which he desires this Court to read in view of the matter contained in the appellee’s brief or appendix. Such appendix to the appellant’s reply brief shall be prefaced by a statement of the reasons therefor. Parties and counsel are cautioned that the cost of printing such appendix may be withheld or divided under section c of Rule 1082 (Awarding of Costs).”


author: Morton, J.,

text:
    MIRIAM HAWTOF v. EILEEN ROSALIE FINE et al.
    [No. 28,
    September Term, 1975.]

      Decided October 6, 1975.

      The cause was argued before Morton, Gilbert and Lowe, JJ.

      Michael G. Hendler and Bennett Gilbert Gaines for appellant.

      William R. Hymes for appellees.

       Note: Certiorari denied, Court of Appeals of Maryland, December 19, 1975.

   Morton, J.,

delivered the opinion of the Court.

This is an appeal from the action of the presiding judge, sitting in the Circuit Court for Baltimore County with a jury, in directing a verdict in favor of the appellees (defendants below) at the conclusion of the appellant’s (plaintiff below) case. The plaintiff, Miriam Hawtof, had been injured as a result of her car having been struck by a car being driven by the appellee, Eileen Rosalie Fine.

The record indicates the accident occurred on July 22, 1969, at approximately 2 p.m. on Old Court Road just east of its intersection with Greenwood Road in Baltimore County. Old Court Road runs east and west and Greenwood Road runs north and south. Old Court Road, east of Greenwood Road, is a four-lane highway with two lanes in each direction. It becomes a two-lane road west of Greenwood, which also is a two-lane road. A stop sign requires traffic traveling on Greenwood Road to yield the right of way to traffic on Old Court Road.

According to the evidence, the appellant, Ms. Hawtof, was driving her car, just prior to the accident, in a westerly direction on Old Court Road. As she approached the intersection with Greenwood Road, she observed a car driven by Leila K. Sandler, who had been driving south on Greenwood, standing still and blocking the westbound lanes of Old Court Road in which Ms. Hawtof was traveling. Ms. Hawtof immediately applied her brakes and was able to stop some eight to ten car lengths from the Sandler car. At the same time, according to Ms. Hawtof, the appellee, Ms. Fine, was driving her car east on Old Court Road and as she reached the intersection where the Sandler vehicle was standing, apparently waiting to make a left turn onto Old Court Road, Ms. Hawtof observed the Fine vehicle approach the intersection traveling at an estimated speed of 50 miles per hour when it “veered over” to “a gravel shoulder and it began churning up the gravel and dust and moving in a very erratic manner, as though it was going to turn over or turn around, I didn’t know what it was going to do, and then shot across the road in a diagonal path, and hit me.” Ms. Hawtof further testified that at the time she was hit by the Fine car, her car was nearly at a standstill in the so-called slow or northernmost lane of Old Court Road. “She hit me, bounced off, hit me again, bounced off, hit again, bounced off, and then went off the side of the road * * *.”

Shirley Krefetz, a passenger in the right front seat of the Sandler car, testified that they had proceeded south on Greenwood Road, stopped at the stop sign and then proceeded onto Old Court Road preparatory to making a left turn when she observed the Fine car and “screamed Leila, stop.” When asked why she screamed “stop,” she replied: “Because I saw an oncoming car that was like almost on top of us.”

In directing a verdict in favor of the appellees, the presiding judge advised the jury of the boulevard law and the rights of favored drivers. He also referred to the case of Coastal Tank Lines v. Carroll, 205 Md. 137, and quoted a part of the opinion dealing with the standards governing the actions of a driver in emergency situations. He then advised the jury “that there is no evidence legally sufficient upon which you might base a finding that Miss Fine was guilty of negligence which contributed to or was the proximate cause of this accident.”

The driver of the Sandler car did not testify, in fact did not attend the trial, and a verdict was directed in favor of Ms. Hawtof against Ms. Sandler “with leave to extend the damages at a time when a new jury panel would pass upon that.” Subsequently, a joint tortfeasor’s release was filed in the proceedings against Ms. Sandler. This appeal by Ms. Hawtof followed, it being contended that the trial judge erred in directing a verdict against her and in favor of the appellees.

While there can be no question that the failure of the Sandler car to observe the boulevard law was a contributing proximate cause of the accident involving the Hawtof and Fine cars, the boulevard law affords no protection to the Fine car in a claim by an equally favored driver. We are confronted here, not with a claim of an unfavored driver against a favored driver or a favored driver against an unfavored driver, but rather with a claim of one favored driver against an equally favored driver. Otherwise stated, this is a claim of an innocent bystander against a favored driver.

It appears, therefore, that the correctness of the trial judge in granting a directed verdict in favor of the Fines turns upon the issue of whether the Fine car was confronted with a sudden emergency by the presence of the Sandler car on the favored highway and, if so, whether the action taken by Ms. Fine in the face of the emergency amounted to negligence or did she act as an ordinarily prudent person would have acted under the stress of the emergency.

In Warnke v. Essex, 217 Md. 183, 186-87, the Court of Appeals set forth rather specific guidelines:

“Generally, the operator of an automobile who suddenly finds himself in a position of peril is not required to exercise the same care as when he has ample time to reflect upon the course of action he should pursue. Burhans v. Burhans, 159 Md. 370, 150 A. 795 (1930). However, if the operator is not actually in a position of sudden peril, or, if the peril arises because of his own negligence, then the emergency rule is not applicable. 5 Am. Jur., Automobiles, § 171; 60 C.J.S., Motor Vehicles, § 257.
The relevant inquiry, then, is whether an ordinarily prudent person would have acted in the same manner as the defendant did in this case. The mere fact that a person finds himself in a predicament or emergency does not automatically relieve him of the obligation to use ordinary care. The amount of care might change, of course, but the degree or standard of ordinary care is always the same, i.e., the care that would be used by an ordinarily prudent person under the same circumstances, the emergency itself always being considered and weighed as one of the circumstances. See 2 Harper and James, Law of Torts (1956), § 16.11, and Prosser, Torts (1955), § 32.
Whether the operator of an automobile was confronted with an emergency, and whether he acted negligently under the circumstances, are generally questions for the jury. 10B Blashfield, Automobile Law and Practice (1957), § 6648.”

In that case the appellant, Warnke, plaintiff below, was driving north in the fast lane of U.S. Highway No. 1, a four-lane highway, and the appellee, Essex, the defendant below, was driving south in the fast lane on the same highway. Suddenly the plaintiff saw the defendant cross the center line of the highway a short distance in front of her. The plaintiff turned to her right into the slow lane as far to the curb on her side of the highway as she could go, but the defendant’s automobile veered entirely across the northbound fast lane into the slow lane and struck the plaintiffs car. The driver of a car following the defendant’s car testified that another vehicle, traveling in the slow lane about a car length ahead of defendant, suddenly switched in front of the defendant’s car and he then added: “The first thing I could see, Mr. Essex tried to put on his brakes to stop, * * * I don’t know what happened then. His car got out of control, I suppose.”

The trial judge granted the defendant’s motion for a directed verdict at the conclusion of the plaintiffs case. The Court of Appeals reversed the action of the trial judge, stating that “there was no evidence to explain why the defendant lost control so as to strike the automobile of the plaintiff in lane 4 [slow lane] when lane 3 [fast lane] was clear. Under these circumstances it is not clear that the defendant was faced with such an emergency as would justify him in taking the action he took. The evidence produced as far as this case had progressed in the trial court was not sufficient to find that there was an emergency as a matter of law. On the contrary, under the facts and circumstances shown, the existence or non-existence of an emergency was clearly a jury question. It is also clear that the question whether the defendant acted reasonably under the stress of the emergency — if in fact an emergency did exist — was also a question for the jury to decide.” See also Virginia Freight v. Montgomery, 256 Md. 221; Effler v. Webber, 18 Md. App. 162; Armstrong v. Johnson Motor Lines, 12 Md. App. 492.

We think the same may be said of the evidence in the case at bar. It is clear that the intruding car, driven by Ms. Sandler, was at a standstill on Old Court Road blocking the westbound lane of traffic in which Ms. Hawtof was traveling. There was no evidence, however, that any part of the standing Sandler car was protruding into the eastbound lanes of Old Court Road upon which the Fine car was traveling. Moreover, there was no evidence to explain why Ms. Fine found it necessary first to drive off the road onto the shoulder in an erratic manner as if she were going to turn over or turn around and then veer across three lanes of traffic, the eastbound slow and fast lanes as well as the westbound fast lane, and strike the Hawtof car several times, which was nearly at a standstill in the westbound slow lane.

We think, under the facts and circumstances here, that the existence or non-existence of an emergency was, as in Warnke, clearly a question for the jury. And we think it equally clear that the question of whether Ms. Fine acted reasonably under the stress of the emergency — if in fact an emergency did exist — was also one for the jury to determine. Thus, we find that the trial judge improperly directed a verdict in favor of appellee, Eileen Rosalie Fine, at the conclusion of the appellant’s case and we are compelled to reverse his action with respect to appellee, Eileen Rosalie Fine, and grant a new trial.

Likewise, we cannot agree that the trial court correctly granted the motion for a directed verdict with respect to appellee, Benjamin Fine. He contends that “the Record is absolutely devoid” of any evidence of negligence on his part and “devoid of any evidence of agency” between him and the operator of the car, Eileen Rosalie Fine. Such a contention overlooks the principle that where a declaration in an action ex delicto contains an allegation that a defendant is the owner of a motor vehicle in the accident upon which suit is being brought, a denial of ownership must be separately pleaded by the alleged defendant-owner. In the absence of such a special plea, ownership of the vehicle becomes an established fact. Maryland Rule 342 c 2 (f). Once ownership of the motor vehicle is established, there arises a presumption that the operator of the involved vehicle is the agent, servant or employee of the owner. Hoerr v. Hanline, 219 Md. 413. “This presumption is rebuttable; but, the evidence required to destroy it as a matter of law must be both uncontradicted and conclusive, and if the evidence as to agency be contradicted, or if uncontradicted is not conclusive, the question of agency should be submitted to the jury.” Hoerr v. Hanline, supra, at 420. See also Rogers v. Frush, 257 Md. 233; House v. Jerosimich, 246 Md. 747.

Here, the appellant’s declaration contained an allegation that Benjamin Fine was the owner of the car driven by Eileen Rosalie Fine. The responding plea filed by Benjamin Fine contained no denial of ownership. Since no evidence was produced to rebut the presumption that Eileen Rosalie Fine was his agent, servant or employee it was improper to grant the motion for a directed verdict in Benjamin Fine’s favor.

Judgment reversed; new trial awarded; costs to be paid by appellees.

      . The trial below was a bifurcated trial on the issue of liability alone.


author: Lowe, J.,

text:
    NAOMI BARBARA GALLANT et al. v. BOARD OF SCHOOL COMMISSIONERS OF BALTIMORE CITY et al.
    [No. 35,
    September Term, 1975.]

      Decided October 6, 1975.

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

      Leonard J. Kerpelman for appellants.

      Harvey L. Okun, Assistant City Solicitor, with whom were Benjamin L. Brown, City Solicitor, and Blanche G. Wahl, Chief Solicitor, on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

This matter arose in the Circuit Court of Baltimore City, and comes to us because Judge Joseph C. Howard sustained a demurrer without leave to amend, which determination constitutes a final judgment from which an appeal may be taken. Md. Rule 345 e. Because Naomi Barbara Gallant considered an enforced transfer from a teaching position in one Baltimore City school to another, as discriminatory, undesirable, disadvantageous and racially motivated, she sought to enjoin her employers, the Board of School Commissioners of Baltimore City and its Superintendent. She grounded her complaint upon Article IV of the Baltimore City Code, Sec. 10 (1):

“10.
Except where a particular occupation or position reasonably requires, as an essential qualification thereof, the employment of a person or persons of a particular race, color, religion, national origin, ancestry or sex and such qualification is not adopted as a means of circumventing the purpose of this subtitle, it shall be an unlawful practice:
(1) For any employer to discriminate against an individual with respect to hire, tenure, promotion, terms, conditions or privileges of employment or any matter directly or indirectly related to employment',...” [Emphasis added].

Sec. 9 (6) defines discrimination as meaning among other things:

“ ... any difference in the treatment of an individual or person because of race, . . ..”

Her bill of complaint asserted a breach of the ordinance by appellees with allegations substantially as follows:

1. That the appellant was a school teacher desirably situate in a Baltimore City school.
2. That appellees caused her to be transferred to an undesirable school in that city.
3. That the transfer caused the terms and conditions of her employment to become more “arduous, hazardous, onerous, difficult and rigorous....”
4. That appellant was “selected for such disadvantageous transfer because she is a member of the ‘white race’, and for that reason alone....”
5. That the transfer was therefore illegal as violating the ordinance aforesaid.

The appellees demurred setting forth four grounds: The first is essentially a common law general demurrer apparently altered slightly to meet the specificity requirements of Md. Rule 345 b. Its only cognizable assertion is that the complaint “fails to allege facts even if proven, to establish ... a cause of action ... .”

The second and third grounds are more in the nature of an answer than a demurrer. Each rests upon alleged facts “which [are] not shown in the bill and [are] therefore clearly invalid.” Thomas v. Hardisty, 217 Md. 523, 528.

The fourth ground asserted appellant’s failure to set forth “necessary facts to establish that the action of the Defendant was unreasonable, arbitrary, capricious and contrary to law.” While the bill of complaint does not charge defendant with being arbitrary and capricious, it clearly alleges the actions to be “contrary to law” and in direct violation of the municipal ordinance. The factual deficiency alleged will be discussed hereafter.

In a two page opinion and order the chancellor sustained the demurrer without leave to amend. His opinion recited and relied upon a directive

“issued by the United States Department of Health, Education and Welfare. . ..”

The existence of such directive is neither mentioned nor alluded to in the pleadings nor was it offered as an appended exhibit. Our knowledge of it comes only in argument from appellees and in the opinion of the court. The opinion explained that the directive ordered appellees:

“to submit a plan calling for the implementation of faculty desegregation by reassignment to begin September 1,1974.”

The judge then acknowledged a further fact nowhere shown on the face of the bill nor elsewhere in the record, save in appellees’ argument:

“The Board developed the required plan which was then submitted to and approved by HEW and has been in effect since the beginning of the school year.”

From that point his opinion presupposes this allusive foundation. Justifying appellees’ actions, the court cited Singleton v. Jackson, 419 F. 2d 1211:

“ ‘The school district shall, to the extent necessary to carry out this desegregation plan, direct members of its staff as a condition of continued employment to accept new assignments.’ ”

He concludes with the premise that actions by administrative agencies are generally not to be disturbed by the courts, Wiley, et al., Trustees v. Board Co. School Comm’rs. of Allegany Co., 51 Md. 401. Finally he held that:

“Such discretion was exercised in devising and implementing the aforesaid desegregation plan to achieve racial integration in the City’s public schools. No facts are alleged to indicate any arbitrary, capricious or unreasonable actions on the part of the Board and, therefore, it is the opinion of this Court that it should not interfere.”

In short the chancellor decided the case on facts that were not alleged in the bill of complaint.

The Test of a Demurrer

When hearing a demurrer to a bill of complaint, the chancellor should assume as true, for the purposes of demurrer, all of the well pleaded facts in the bill of complaint and attached exhibits, as well as the inferences which may be drawn from those well pleaded facts. Parish v. Md. and Va. Milk Producers Ass’n, Inc., 250 Md. 24, 71. In its determination, the court may not assume facts not pleaded as was done here, Petroli v. Baltimore, 166 Md. 431, 436, nor may additional facts relied on by a party be supplied. Nohowel v. Hall, 218 Md. 160, 164. The ruling is limited to a consideration of the pleading demurred to, and instruments or documents which do not form a part of the pleading may not be considered. Pullman Co. v. Ray, 201 Md. 268.

In the instant case the chancellor made no reference to a single fact in the bill of complaint but relied exclusively upon facts known to him personally or supplied him in argument by appellees. When reviewed in the light of those well established principles of equity procedural practice, it is by no means clear to us that the demurrer to the bill of complaint was properly sustained without leave to amend. To the contrary, upon consideration of his opinion setting forth reasons for finally terminating the case, we find his failure to permit amendment to be a “clear showing of an abuse of discretion” compelling reversal. Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 61.

Although the Court of Appeals has on at least one occasion permitted a demurrer to be treated as if it were a motion for summary judgment, Myers v. Montgomery Ward & Co., 253 Md. 282, it has never permitted a final judgment based upon facts which were not before the court. While Md. Rule 345 .a 2 provides for determination upon dem-urr-er -of any question of law as to pleading which may be decisive -of the litigation (including the constitutionality .and the application and construction of a statute), the issue must appear on the face of the pleading. When .additional i'acts have to be supplied, the procedure Tor providing -decision without -trial in almost every instance, is by motion for .summary judgment and .not by -demurrer. Fiorita v. McCorkle, 222 Md. 524, 526; but see Myers v. Montgomery Ward & Co., 253 Md. 282 .and Northover Center v. Dart Drug, 24 Md. App. 638.

To the limited extent the inartfully -drawn demurrer decried the absence of factual foundation in the bill to •support the allegations that the transfer was undesirable, and racially motivated in violation -of the -ordinance, the ■demurrer was sustainable, but -only to the -extent -of the demurrer’s specificity. Myers v. Montgomery Ward & Co., supra. Our interpretation (obtained with some-effort)-of the first and fourth grounds of the demurrer “contemplates .at least a reasonably understandable -statement”., Thomas v. Hardisty, 217 Md. 523, 529, which .is -sufficient to comply with the Court of Appeals’ insistence upon the specificity requirement of Md. Rule 345 b. Kline v. Lightman, 243 .Md. 460, 478; Balto. County v. Glendale Corp., 219 Md. 465, 468. Where an employer’s act may be perfectly proper butforfhe reasons inspiring it, certain and definite .allegations -of the facts and/or circumstances upon which the illegal motivation is founded should be set .forth To -permit an informed preparation of defense. Expressions -used to characterize acts or conduct, without support by.a.statement of facts, are mere conclusions or expressions-of -opinion. Cf. Livingston v. Stewart & Co., 194 Md. 155.

In affirming the sustaining of the -demurrer for the limited reason of an insufficient factual predicate in the bill of complaint, we hasten to note that we were nottold, as was the Myers Court, that the facts could not -have been supplemented. Id. at 290. To the contrary we were assured that the facts were abundantly available although conceived by appellant to be surplusage.

Th& opportunity to amend should be freely granted “to the end that cases be tried on their merits rather than upon the- niceties of pleading.” Hall v. Barlow Corporation, 255 Md. 28, 39-40. As Judge Barnes points out in that case, it is a “rare situation” which justifies a denial of leave to file an amended bill of complaint. We do not consider the absence of bolstering facts a.“rare situation.”

Order of January IS, 1975, affirmed except as to that part denying appellant leave to file an amended hill of complaint.

Case remanded for the entry of an order granting such leave, with further proceedings in due course thereafter.

Costs to be paid by appellees.

      . The demurrer’s reasons in toto were:
      “1. Said Complaint is patently defective on its face and insufficient in law in that it fails to allege facts, even if proven, to establish a recognizable cause of action under the law which would entitle the Plaintiff to the extraordinary relief requested.
      2. Said Complaint’s conclusory charge that the transfer of the Plaintiff from one school to another within the free public school system by the Defendant is unlawful, fails to state a cause of action in equity; the action complained of by the Plaintiff was taken by the Defendant in direct conformity with the law.
      3. Said Defendant has a continuing, mandatory obligation under the law to maintain the public school system in a manner consistent with the United States Constitution, Federal, State and municipal law, and to ensure that the last vestiges of racial discrimination are forever removed from said system in both the racial composition of students and faculty assigned to said schools. The exercising of the statutory and constitutional authority and responsibility of said Defendant in the transferring of the Plaintiff is the carrying out of an administrative prerogative which rests within the sound expertise and judgment of said Board and is a discretion imposed in them alone, and unless corruptly exercised is not subject to judicial review.
      4. Said Bill of Complaint fails to set forth the necessary facts to establish that the action of the Defendant was unreasonable, arbitrary, capricious and contrary to law.”

      . Appellees also attempt to place the “directive” before this Court in the form of a letter from “Peter E. Holmes, Director, Office of Civil Rights” to Superintendent Patterson, one of the appellees here, by way of footnote in their brief. That action is clearly beyond the proper scope of a briefs contents, Md. Rule 1031. We decline to recognize it for purposes of this appeal. We further note that neither party suggests that Maryland’s courts may judicially notice administrative correspondence regardless of its directive nature.

      . Md. Rule 345 is made applicable to equity cases through'Md.-Rule.3T3.

      . See Preissman.v. Harmatz, 264 Md. 715; Hall v. Barlow Corporation, 255 Md. 28; Earl v. Anchor Pontiac, 246 Md. 653; Stoewer v. Porcelain etc. Mfg. Co., 199 Md. 146 and Crowe v. Houseworth, 19 Md. App. 688. The trial judge-was undoubtedly aware of this time honored concept. We note that he perfunctorily permitted appellees to amend their demurrer without reservation or presumably even a hearing.

      . Coincidentally in the Hall case, as in this case, both parties “in the lower court and. before us in their briefs and arguments have presented matters, not alleged in the bill of complaint and indeed not in the record in the- case:” 255 Md. at 42. Indeed appellant here provides not a single authority, and the authorities argued by appellees are inapposite to the issue to be decided: It is presumably such argument that misled the trial judge-who seemed'tohave been persuaded by appellees’ argument.


text:
    STATE OF MARYLAND v. STEWART ELLSWORTH BAILEY LAYMAN, JR. HAROLD M. BOSLOW, DIRECTOR, PATUXENT INSTITUTION v. STEWART E. B. LAYMAN, JR.
    [No. 49,
    September Term, 1975.]
    [No. 53,
    September Term, 1975.]

      Decided October 7, 1975.

    The cause was argued before Morton, Gilbert and Lowe, JJ.

      Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, Timothy E. Clarke, Jerome C. Schaefer and Louis S. Lear, Assistant State’s Attorneys for Montgomery County, on the brief, for appellants.

      Murray L. Deutchman for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The State, in Appeal No. 53, seeks reversal of the issuance by Judge H. Ralph Miller in the Circuit Court for Montgomery County, Maryland, of a Writ of Habeas Corpus commanding the release of Stewart Ellsworth Bailey Layman, Jr. from the Patuxent Institution on the ground that Layman’s sentence, when “good time” is deducted therefrom, had expired.

The State, in Appeal No. 49, is aggrieved by the refusal of Judge Miller, prior to his issuance of the writ, to hold Layman in contempt for not complying with an order of court that directed Layman to submit to examination by the Patuxent staff. The State asks us to reverse Judge Miller’s declination to find Layman in contempt.

Layman has moved to dismiss Appeal No. 53. He bottoms his contention on the ground that, unlike Director v. Cash, 269 Md. 331, 305 A. 2d 833 (1973), the trial court did not implicitly or explicitly declare a legislative enactment wholly or partially unconstitutional. Layman also asseverates that, assuming arguendo that Appeal No. 53 must be dismissed, then Appeal No. 49 collapses of its own weight because the issue posed by it would then be mooted, and appellate courts do not sit in order to decide abstract questions of law. Lloyd v. Board of Sup'rs of Elections, 206 Md. 36, 111 A. 2d 379 (1954); Gran v. Board of Zoning Appeals, 210 Md. 19, 122 A. 2d 824 (1956).

The State asserts that:

“The lower court in its order of January 31,1975, held in essence that the provisions of Article 31B, §§ 7 (a), 9 (a) and 10 (a) which provide a person referred to Patuxent Institution for diagnosis and evaluation to be entitled to good time upon his return to the Division of Correction was unconstitutional in that the person should also be entitled to good conduct time while confined to Patuxent Institution. While not specifically stating the same, the effect of the lower court’s order in this case and the companion case of State v. Layman, No. 49, September Term, 1975, have the effect of holding unconstitutional those provisions of Article 31B, §§ 7 (a), 9 (a) and 10 (a). The State has an obligation [see Director v. Cash, 269 Md. at 351] to present for this Honorable Court’s consideration decisions of trial courts of this State which either explicitly or implicitly hold a State statute unconstitutional pursuant to § 3-706, Courts and Judicial Proceedings.”

In the State’s view Judge Miller fell into the same fault as did the trial judge in Cash. The State argues that the judge’s deeming that “good time” was applicable to a person in Patuxent who had not been found to be a defective delinquent, is directly contrary to Cash. In short, the State sees little, if any, difference between Cash and the instant case, and on oral argument strongly urged that Cask is completely dispositive of Appeal No. 53.

Layman suggests that McNeil v. Director, Patuxent Institution, 407 U. S. 245, 92 S. Ct. 2083, 32 L.Ed.2d 719 (1972), is more akin to the matter now before us. In that case Mr. Justice Marshall, for the Supreme Court, said that McNeil's “sentence having expired, he is no longer within the class of persons eligible for commitment to the Institution as a defective delinquent. Accordingly, he is entitled to be released.” 407 U. S. at 252. We think that both McNeil and Cask are inapposite. In McNeil there was no question but that McNeil’s sentence had expired. Cash was decided on the basis that a State law had been declared unconstitutional and that the State had a right to appeal under former Maryland Annotated Code provision, art. 42, § 19. That section provided:

“Whenever any court in this State having jurisdiction in the premises, other than the Court of Appeals or the Court of Special Appeals, or when any judge of any court in this State having jurisdiction in the premises shall release or discharge any person brought before such court or judge, under the writ of habeas corpus, charged with the violation of the provisions of any act of Assembly of this State, or section thereof or of any article or section of the Code of Public General Laws or public local laws of this State, upon the ground, or for the reason, that such act of Assembly, or section thereof, or such article or section of the Code of Public General Laws or public local laws is unconstitutional and void, in whole or in part, because contrary to the Constitution or Bill of Rights of this State, or because contrary to the Constitution of the United States, it shall be the duty of the said court of [or] judge ordering such release or discharge for said cause to reduce his opinion to writing within five days after ordering said release or discharge, and to transmit the original papers in said case, together with a copy of its or his order of release or discharge, and of his said opinion, under his hand and seal, to the Clerk of the Court of Special Appeals; and it shall be the duty of the said court to consider the papers so transmitted to its said clerk, including said order of release or discharge, and said opinion, at the earliest practicable period, after the receipt thereof by its said clerk, and to give its opinion in writing upon the case so presented; and the said opinion so given shall have and possess the same authority as if the same was filed in a ease formally heard and determined in said court on appeal.” (Emphasis supplied).

The Court of Appeals, in State v. Musgrove, 241 Md. 521, 217 A. 2d 247 (1966), said that while the State ordinarily had no right of appeal from the issuance of a Writ of Habeas Corpus, such a right did exist pursuant to what is now former Code provision, art. 42, § 19 because of the “.. . substantial questions of extraordinary public importance and concern . ..” that arose whenever a judge based his issuance of a Writ of Habeas Corpus upon a finding that a State law is wholly or partially unconstitutional. The Court in Musgrove noted that art. 42, § 19 provided for an “automatic” appeal which, by the express terms of the act, required trial judges to file a memorandum of the reasons why a State law, wholly or partially, was declared unconstitutional. The holdings of Cash and Musgrove with respect to the State’s right to appeal from the issuance of a Writ of Habeas Corpus have been substantially modified by Laws 1973, 1st. Special Session, Ch. II, effective January 1, 1974. At that Special Session, Md. Ann. Code art. 42, § 19 was repealed, and what is now codified as Courts and Judicial Proceedings Article was enacted. Section 3-706 of the Courts and Judicial Proceedings Article, which is the apparent replacement for Md. Ann. Code art. 42, § 19, the so-called “automatic” appeal, now provides in pertinent part:

“(a) Memorandum to be filed after discharge. — If a person is released or discharged by a judge under the writ of habeas corpus on the ground that the law under which the person was convicted is unconstitutional, in whole or in part, the judge shall file a memorandum within five days after the release or discharge and transmit it with original papers in the case to the clerk of the Court of Special Appeals.” (Emphasis supplied).

It appears, therefore, that whether, as the State -contends, Judge Miller declared provisions of the Md. Code art. 31B dealing with Patuxent Institution, unconstitutional, or he, as Layman contends, did not reach that result, is irrelevant to Appeal No. 53. It is irrelevant because we are without authority in either event to consider the record transmitted to us. The law Is clear that when a person is released or discharged under a Writ of Habeas Corpus the reeord Is to be transmitted to this Court for our consideration only when the basis for the release or discharge is that the law under which the person was convicted is unconstitutional in whole or In part. Judge Miller did not declare any portions of the Md. Ann. Code art. 27, the Criminal Code under which Layman had been convicted, to be wholly or partly unconstitutional, and therefore, the record should not have been transmitted to us.

It may well be that the Legislature might deem it desirable to amend Courts Art. 3-706 so as to provide for appellate review whenever a person is released from confinement as a result of a trial judge’s declaring any State law wholly or partially unconstitutional. Until and unless the Legislature does so, however, we may not consider the case, saving and except that one instance where the law under which the person was convicted is declared wholly or partially unconstitutional.

We hold that Appeal No. 53 must be dismissed because there is simply no authority for this Court to consider it. Appeal No. 49 is also dismissed on the ground that our disposition of Appeal No. 53 moots Appeal No. 49.

Appeals dismissed.

Costs to be paid by Montgomery County.

      . For background relative to Layman’s original confinement under the jurisdiction of the Division of Correction, see Layman v. State, 14 Md. App. 215, 286 A. 2d 559 (1972), cert. denied, 265 Md. 740 (1972).

      . Deduction of “good time” from a sentence is authorized if a person is in confinement under the jurisdiction of the Division of Correction. We do not in this opinion reach the question of whether a person held at Patuxent, but not adjudicated a defective delinquent, falls within the scope of the “good time” allowance.

      . The record is hazy as to whether the State “stipulated”, or “agreed”, or neither, that “good time” was applicable to Layman’s sentence even though Layman was confined at Patuxent.

      . Courts Art. 3-706 is similar to Md. Rule Z56. The Rule was added May 10, 1963 and would appear to have modified Md. Ann. Code art. 42, § 19. See Maryland Constitution Art. IV, § 18A. Maryland Rule Z56 provides that whenever a person is “. . . discharged under a writ of habeas corpus on the ground that the statute or law under which such person was convicted is unconstitutional and void”, (emphasis supplied), the trial judge shall file a memorandum as to his reasons within five days, and the clerk of the court shall transmit the same to the appellate court. The rule was in effect at the time when both Cash and Musgrove were decided. The effect of Md. Rule Z56 was not raised by the appellee in Director v. Cash, supra, nor does it appear that the Court considered it. In State v. Musgrove, supra, although Md. Rule Z56 was cited, it was not discussed.

      . The Court of Appeals Standing Committee on Rules of Practice and Procedure might also be desirous of considering recommending modification of Md. Rule Z56.