author: Gilbert, J.,

text:
    LOUIS MAIZEL v. MAIZEL & SHAPIRO ENTERPRISES, INC. et al.
    [No. 505,
    September Term, 1974.]

      Decided February 21, 1975.

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

      Martin E. Gerel, with whom were Ashcraft & Gerel on the brief, for appellant.

      John Noble, with whom were Vivian V. Simpson, Joseph B. Simpson, Jr., H. Algire McFaul, Stephen P. Johnson and Simpson & Simpson on the brief, for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

Louis Maizel, on April 15, 1970, sustained an accidental injury arising out of and in the course of his employment with Maizel & Shapiro Enterprises, Inc., and Maizel filed a claim with the Workmen’s Compensation Commission. The Commission passed an order on August 30, 1970 in which it determined the accidental injury and awarded payment for temporary total disability to Maizel. On July 16, 1971 the Commission, “after further consideration”, by a “Supplemental Award” held that Maizel had sustained a permanent partial disability of 35% of his back under “Other Cases.” The employer’s insurance carrier was instructed to pay to Maizel the sum of $4,375 at the rate of $25 per week. A little over a year later Maizel requested a rehearing. For reasons not pertinent to this discussion, the matter was not heard until November 1973. As a result of the rehearing the Commission held that Maizel was disabled to the extent of 45% of his back.

Then Md. Ann. Code art. 101, § 36 (4a) provided:

“A person who receives under subsection (4) of this section an award equal to forty per centum or more of $12,500 is thereby considered to have a serious disability. He automatically shall be entitled to (in addition to an award under subsection (4)) an extra award of a number of weeks equal to one-third (computed to the nearest whole number) of the number of weeks awarded under subsection (4); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply. This subsection, to the extent of any inconsistency, prevails over subsection (4); hjit otherwise subsection (4) applies to persons covered by this subsection. Provided, however, that any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and paid.” (Emphasis supplied).

Applying § 36 (4a) to the case before it, the Commission ordered that Maizel be paid compensation for a period of 300 weeks at the rate of $40 per week “subject to a credit for 80 weeks” that have been paid in accordance with the order of July 16,1971.

Maizel was aggrieved. He appealed to the Circuit Court for Prince George’s County where he argued to Judge Robert B. Mathias that the effect of the Commission’s order was to deprive Maizel of the difference, for 80 weeks, between the $40 weekly compensation payable for serious disability and the $25 per week he had been receiving. In short, Maizel said he was deprived of $1,200. Maizel asseverated in the Circuit Court and again here that the above quoted italicized portion of § 36 (4a) is unconstitutional in that there is a denial of equal protection of the laws. Alternatively, he avers that the construction placed by the Commission upon that section, if it be constitutional, is incorrect. Judge Mathias disagreed with Maizel’s contentions, and we agree with Judge Mathias.

The gist of Maizel’s equal protection argument, stripped of its veneer, is that had he not filed a claim shortly after the happening of the accident of April 15, 1970, and instead waited until July 1971 when his condition had apparently worsened, he would have received, as a result of his waiting, the additional fifteen dollars a week for 80 weeks. Maizel poses the hypothetical situation wherein two people, “A” and “B”, are injured in the same manner, to the same extent and on the same day. “A” files a claim for compensation forthwith but “B” waits. At the time of his hearing “A” has reached maximum improvement. He is determined to have sustained a 35% permanent disability of his back. Later his condition becomes worse and as a result of a petition to reopen he is awarded another 10% disability. As the law then read he would have received, as in the present case, $1,200 less than “B” who waited until his condition had reached the point where he was 45% disabled and then proceed with his claim, provided, of course, that the claim was timely.

Maizel’s hypothesis is intrinsically intriguing, but we shall have to leave the discussion of the issue to another day. We are mindful of the recent case of In re Trader 272 Md. 364, 325 A. 2d 398 (1974). There the Court had before it an alleged denial of equal protection of laws arising out of a difference between the treatment of juveniles in Montgomery County as opposed to the rest of the State. Chief Judge Murphy, speaking for the Court stated:

"... [The] constitutionality [of a statute] is presumed in the absence of a clear and convincing showing by the party assailing the legislative classification that it does not rest upon any reasonable basis, but is essentially arbitrary. [(Citations omitted)]. Since no evidence was adduced in the proceedings below to demonstrate the lack of a reasonable basis for the statutory distinction, and since the difference in treatment is not so irrational as to be invidiously discriminatory on its face, we hold on the record... [that there was no denial of] equal protection of the laws. ...”

The record in the case now before us is devoid of evidence demonstrating a “lack of a reasonable basis” for the legislature’s enactment of the above quoted italicized portion of § 36 (4a).

It is incumbent upon one who attacks the constitutionality of a law on the ground that he has been denied equal protection thereof to show that there is no reasonable basis for the legislative distinction, and Maizel’s rhetoric and hypothetical example do not constitute “evidence.” Maizel has simply failed to make, in this record, a basis for a constitutional attack of a denial of equal protection. We are unable to declare that the difference in treatment of a claimant who promptly exercises his rights under the Workmen’s Compensation Act and a claimant who defers the employment of those rights “is so irrational as to be invidiously discriminatory on its face.” This is so because each claimant will receive compensation based upon his respective disability at the time of his hearing.

Under the clear language of Trader, supra, we do not pass upon the issue as it is not properly before us. We do observe, however, as Judge Murphy said in Trader:

“. . . [I]n evaluating challenges under the equal protection clause, we do not sit as a ‘super legislature.’ Salsburg v. Maryland [346 U. S. 545, 74 S. Ct. 280, 98 L. Ed. 281 (1954)]. ‘To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, — illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70, 33 S. Ct. 441, 443, 57 L. Ed. 730 (1913). In other words, if legislation is constitutional, the wisdom of it is beyond the purview of the Courts. Bruce v. Director, Chesapeake Bay Aff., 261 Md. 585, 276 A. 2d 200 (1971).”

We turn now to Maizel’s alternative argument that the Commission incorrectly construed that sentence of § 36 (4a) that declares:

“Provided, however, that any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and paid.”

Maizel’s argument with respect to this contention appears to us to have been answered by this Court in Gordon v. Baltimore Spice Company, 17 Md. App. 300, 301 A. 2d 41 (1973), cert., denied 269 Md. 755 (1973). In that case we reversed a trial court’s decision which had in turn reversed a Workmen’s Compensation order. The Commission had “awarded the claimant 225 weeks compensation and added 75 weeks of compensation ‘for serious disability’ in compliance with Article 101, § 36 (4a). The Commissioner subtracted the original 125 weeks of compensation previously awarded from the total 300 weeks which left the claimant with 175 weeks compensation to be paid ... at the rate of $40.00 per week.” We held, implicitly, that the Commission correctly allowed a credit against its supplemental award for compensation previously paid.

Presuming the constitutionality of § 36 (4a), which presumption we are required to make under Kirkwood v. Provident Savings Bank, 205 Md. 48, 106 A. 2d 103 (1954) and Trader, supra, we hold that the language of § 36 (4a) is clear, definite, unambiguous and susceptible of only one rational interpretation and that is that when a claimant is granted the right to reopen his claim on the basis that his condition has worsened, the employer-insurer, the employer-self insurer or the Uninsured Employers’ Fund, as the case may be, is entitled to a credit for compensation previously paid. The present law does not provide for a re-adjustment of compensation previously paid.

Appellant posits the further contention that we may avoid passing upon the constitutionality of the last sentence of § 36 (4a) by holding that the statute provides that the difference between any amount paid under “Other Cases”, § 36 (4) and any subsequent amount awarded under “Serious Disability”, § 36 (4a), should be added to the total dollar amount of the award. He suggests that the $1,200 to which he believes himself entitled be added to the award of compensation. He argues “[Y]ou start it running from the point of time that the worker was found to be seriously disabled.” The effect of his suggestion would be to increase the number of weeks that he actually receives compensation. The sum of $1,200 divided by a weekly payment of $40 leaves a quotient of 30 weeks. Hence, appellant is opting for an additional 30 weeks compensation. Appellant reasons that such a construction of the statute would not increase the compensation previously paid. Maizel engages in semantics. Irrespective of how Maizel rationalizes the payments, they are nevertheless an increase in the compensation previously paid and thus proscribed by the statute. He would have us become the “super legislature” to which Chief Judge Murphy alludes in Trader, and amend the statute by reading into it something which is not only not there but which is patently contrary to the clear legislative mandate.

A final word is in order relative to briefs in this Court. The appellant has included within his brief an appendix. We take this occasion to once again remind the bar that the style and contents of briefs in this Court are prescribed in Md. Rule 1031, and that failure to comply with the Rule could result in the dismissal of the appeal, or a reprinting of the briefs “at the expense of the attorney for the party whose brief was improperly printed.” Md. Rule 1031 f.

Judgment affirmed.

Costs to be paid by appellant.

      . This section has subsequently been amended. See Laws 1970 Ch. 446 which rewrote § 36 (4a), applicable, however, only to injuries occurring after July 1, 1970. See also Laws 1971 Ch. 743 in which a correction was made in the third sentence of sub-section (4a).

      . See n. 1 supm.


source: Caselaw Access Project

license: Public Domain

text:
    MARYLAND MORTGAGE AND INVESTMENT COMPANY v. STATE OF MARYLAND
    [No. 532,
    September Term, 1974.]

      Decided February 24, 1975.

    The cause was argued before Thompson, Gilbert and Moore, JJ.

      Eugene Hettleman for appellant.

      Amicus Curiae brief filed by Mayor and City Council of Baltimore, Benjamin L. Brown, City Solicitor and Richard M. Hartman, Chief Assistant Solicitor, on the brief.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B.

      Allen, State’s Attorney for Baltimore City, Barry Norwitz and C. Keith Meiser, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

This appeal is the sequel to It. S. Constr. Co. v. City of Baltimore, 269 Md. 704, 309 A. 2d 629 (1973). In that case R. S. Construction Company had sued the Mayor and City Council of Baltimore in the Circuit Court for Baltimore City. The company sought to have the Upton Urban Renewal Ordinance, No. 794, of the Mayor and City Council of Baltimore, declared unconstitutional on the ground that it violated the equal protection clause of the “federal and state constitutions.” The trial judge (Ross, J.) ruled that R. S. Construction Company had fallen short of producing the degree of proof necessary to overcome the presumption of the constitutionality of the Ordinance. The Court of Appeals of Maryland held that bare evidence of the existence of a difference in the treatment of two allegedly similar situations, devoid of details of surrounding circumstances, fails to meet the heavy onus cast upon those claiming a denial of equal protection of the laws.

Approximately one month prior to the Court’s opinion in R. S. Constr. Co., supra, the appellant, owner of 704 West Lafayette Avenue, was served with a Baltimore City Departments of Fire, Health and Housing and Community Development “Violation Notice”. The notice listed eighty-one separate alleged violations. Apparently, after the opinion of the Court of Appeals had been handed down, the appellant determined to succeed where R. S. Construction Company had failed. Appellant purposely charted a collision course with the City in order that appellant could challenge the constitutionality of Ordinance No. 794.

The Ordinance condemned “for urban renewal purposes” numerous properties located within the geographical confines of what it defined as the Upton area, and it set certain standards to be “applied to all residential uses within the project area other than those structures” the City had determined to acquire through condemnation.

The specific provision of the ordinance that appellant attacks is designated as § 7 (a) (3). It requires that within the Upton area:

“All lead base paint shall be removed from interior surfaces of dwellings before repainting. Good repair shall include keeping properly painted all interior surfaces which are painted in normal practice.” “A person who contends that there has been a denial of the equal protection of the laws has the burden of showing that his situation is the same as another situation, and that the State, or its instrumentalities, has treated the two situations differently in an unreasonable or arbitrary manner.”

Appellant, under penalty of “a fine not exceeding One Hundred Dollars ($100.00) and ... each day’s violation shall constitute a separate offense, was directed to (1) “Remove all loose or deteriorated paint and repaint,” and (2) to remove all “loose or defective paper on walls or ceilings and . . . refinish.” When appellant declined to correct the defects noted in the “violation notice”, a summons was issued out of the Housing Part of the District Court for District 1, and the matter was set for trial before Judge Hudnet. The judge disagreed with the appellant’s contention that it was denied the equal protection of the laws, and he adjudged appellant guilty. Obviously cognizant that appellant was seeking to challenge a law rather than flout it, the court suspended the imposed fine. Appellant entered an appeal to the Criminal Court of Baltimore where issue was joined before Judge Shirley B. Jones, without the intervention of a jury.

The evidence presented to Judge Jones established that the appellant’s property at 704 West Lafayette Avenue is within the Upton area. All of the open charges against appellant, with one exception, not applicable to this opinion, would not have been placed had the property not been located within the Upton urban renewal project. The subject property is similar in exterior appearance to other properties not situate within Upton’s boundaries. The appellant’s expert witness, the president of R. S. Construction Company, testified that, absent the requirement of § 7 (a) (3) of Ordinance 794, there were, in his opinion, no factors necessitating repainting and repapering, and that in other areas of the City one was required only to remove defective paint or paper. Once having done so, it was not mandated that repainting and repapering be accomplished.

The testimony produced on behalf of the State was elicited from Mr. Michael Calvert, Chief Planner for the Department of Housing and Community Development. Mr. Calvert, after testifying to the basic “theory behind the [Upton] community renewal plan”, said that the properties in the Upton area were “considerably worse, measurably worse” than those areas against which he had been asked to compare Upton.

Judge Jones held that Ordinance No. 794 is constitutional as it applies to 704 West Lafayette Avenue, that appellant had not been denied equal protection of the laws, and that appellant was guilty of violating the housing code. The judge imposed the same sanction as that meted to appellant in the District Court.

Because we considered the resolution of the case to be in the public interest and of great importance, not only to the appellant, but to the State and the City of Baltimore as well, we granted certiorari. Courts and Judicial Proceedings Article § 12-305.

Appellant seeks to have us reverse the judgment of the Circuit Court by holding that the Upton Ordinance invidiously discriminates against the appellant, thus denying it equal protection of the laws. We not only decline to do so, but we expressly hold that the Upton Ordinance is a constitutional application of the police power of the City of Baltimore.

In Queen Anne’s County v. Miles, 246 Md. 355, 228 A. 2d 450 (1967) the Court stated:

See also R. S. Constr. Co. v. City of Baltimore, supra. While the appellant, in the trial court, presented evidence in order to establish that it was treated differently than persons owning property without the boundaries of the Upton area, it did not demonstrate that such difference in treatment was unreasonable or arbitrary.

The Upton Ordinance, as is the case with any urban renewal ordinance, was enacted for the purpose of removing slums and blight from the City. A poignant description of the effect of slums and blight may be found in an article by Greaney, Praetz and Modzelewski, entitled “Hampden County Housing Court: A Product of Citizen Initiative, ” in 58 Judicature 277 (1975) wherein it is said:

“Slum neighborhoods erode the mental and physical health of the urban poor who inhabit them. Dilapidation and overcrowding cause stress and tension that in turn lead to crime and violence. Defective plumbing and heating, inadequate ventilation, broken plaster, chipping paint, faulty electrical systems threaten occupants’ health and safety. Neighborhoods with failing buildings and inadequate city service go hand in hand with the related social ills of ineffective schools, alcoholism, traffic in drugs, unwanted pregnancies and high juvenile delinquency.”

From the foregoing description it can be readily seen that the City has a vital interest and public purpose in the prevention of slums and blight. See also Master Royalties Corp. v. Mayor & City Council, 235 Md. 74, 200 A. 2d 652 (1964); Herzinger v. City of Baltimore, 203 Md. 49, 98 A. 2d 87 (1953). It follows that “prevention of slums” necessitates the establishment of a level of minimum, acceptable housing standards; otherwise “prevention” would be an empty, meaningless concept. Absent some sort of minimum standards, slums would flourish, the health of the City’s citizens become adversely affected and, rather than remove blight, it would be nurtured.

Mr. Calvert testified that an area is selected to be an urban renewal project because it has “the greatest extent of blight, [and] the greatest need for a . . . renewal treatment.” The basic thrust of appellant’s attack upon the “Upton Ordinance” is that it required appellant to maintain a standard not required by the City Housing Code to be so maintained in other areas of the City. A similar contention was made in People v. City of Chicago, 3 Ill. 2d 539, 121 N.E.2d 791 (1954). There a property owner in what was styled “a conservation area”, was required to comply with the “conservation plan”. The City of Chicago could, through eminent domain, take a non-conforming property, or it could apply to the courts for the right to make the necessary repairs in order to bring the property up to the required standard, and then a lien could be imposed upon the property. A property owner challenged the constitutionality of the conservation area concept on the ground that “no reasonable basis exists for imposing . . . [conservation] requirements upon owners of property in conservation areas and not upon those who live beyond such areas.” The property owner asserted that if a dwelling house in a conservation area tended to create a slum condition because it did not meet the conservation plan’s minimum standards, a similar residence not situate within the designated conservation area would likewise have a tendency to create a slum condition. The court said:

“An act is not local or special because it operates in but one place, or upon a particular class of persons or things, provided there is a reasonable basis for the legislative classification. . . . The issue, then, is whether . . . there is a legitimate basis for a classification which distinguishes between property within conservation areas and other property. The prevention of slum and blighted areas is a public use and a public purpose. The legislature has found the conditions which it seeks to remedy exist upon an area basis rather than upon the basis of individual structures.. .. Legislative action taken to meet the evil in the form in which it most clearly exists cannot be said to be either clearly unreasonable or palpably arbitrary.”

We think the City of Baltimore’s approach to the elimination of slums and blight on a designated area basis, rather than a wholesale simultaneous attack on such conditions in all areas of the City, to be reasonable. This is particularly true when we consider that the City does not have the unlimited wealth or manpower necessary in order to undertake, inspect and enforce a city-wide urban renewal project. It must, of necessity, approach the concept of urban renewal on an area basis. That the property owners within the Upton area are required to uphold a standard of maintenance higher than a property owner who is not in the designated area does not violate equal protection of the laws. “Exact equality is no prerequisite of equal protection of the laws within the meaning of the Fourteenth Amendment.” Norvell v. Illinois, 373 U. S. 420, 83 S. Ct. 1366, 10 L.Ed.2d 456 (1963). See also Bush v. Director, 22 Md. App. 353, 324 A. 2d 162 (1973), cert. denied by Court of Appeals, October 24, 1974, 272 Md. (1974).

In Bush, supra, we quoted the late Chief Justice Warren who penned in Baxstrom v. Herold, 383 U. S. 107, 86 S. Ct. 760, 15 L.Ed.2d 620 (1966) at 111:

“Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have relevance to the purpose for which the classification is made.”

We went on to state that:

“We reject the notion that mathematically precise equality of procedures, or absolute symmetry, is the command of the Fourteenth Amendment.”

We think there is a rational basis for the City’s designation of the Upton area as an urban renewal project, and the resulting application of minimum housing standards thereto, notwithstanding that the City has not applied those same standards city-wide. The distinction between the Upton area and other parts of the City has a relevance to the purpose for which the difference in treatment is made.

“... [T]he law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow.”

Buck v. Bell, 274 U. S. 200, 208, 47 S. Ct. 584, 71 L. Ed. 1000 (1927), (Holmes, J.).

In our view the appellant has failed to demonstrate that there is no rational basis for the distinction in treatment between the Upton area and the balance of the properties within the City, nor has it shown that the difference in the treatment afforded appellant, vis a vis others not within Upton, is arbitrary and capricious. In fact, the evidence is to the contrary.

Judgment affirmed.

Costs to be paid by appellant.

      . It appears from the record that all “violations” not peculiarly applicable to the Upton area had been corrected prior to trial.

      . The “exception” was an alleged violation of the Baltimore City Housing Code.

      . Under existing Maryland law, the appellant has no further right of review by the courts of this State. Courts Art. § 12-202.

      . That the City possesses police power cannot be doubted. Baltimore City Charter § 6 (24) (1949). See also 7 E. McQuillan, The Law of Municipal Corporations § 24.563 (3rd ed. rev. J. Latta 1968) and cases therein cited.


text:
    ARTHUR F. GNAU v. GEORGE J. SEIDEL et al.
    [No. 535,
    September Term, 1974.]

      Decided February 24, 1975.

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

      William J. Blondell, Jr. for appellant.

      Maurice W. Baldwin, Jr., Assistant County Solicitor, with whom were R. Bruce Alderman, County Solicitor, Harry S. Shapiro, Chief Assistant County Solicitor, and Charlotte Pine on the brief, for appellees.

      . We were advised on oral argument that the-case had been postponed on several occasions; 4 times by the protestants, twice by the Board and thrice by Gnau.

      . The County Zoning Regulations, § 230.13 authorized the Board to grant a “special exception” so as to permit the operation of a “Garage, service” within a B. L. zone.

   Gilbert, J.,

delivered the opinion of the Court.

This zoning case appeal from the Circuit Court for Baltimore County (MacDaniel, J.) began when a complaint was filed on March 22, 1971 by George J. Seidel, et ux. and Rev. Claude M. Kinlein against Arthur F. Gnau for “storing antique vehicles” on the Gnau property at 6801 Loch Raven Boulevard in violation of the county zoning regulations. The record is not clear as to how it came about, but by the time a hearing was held before the Zoning Commissioner of Baltimore County the alleged violations mushroomed to “selling antiques without benefit of an antique shop, contractor’s storage yard, truck terminal and miscellaneous junk.” The Zoning Commissioner determined that Mr. Gnau was “guilty of violating [the] regulations” and ordered that “such use of the . .. property . . . cease” within a prescribed time. Gnau appealed to the County Board of Appeals.

The Board did not hear the matter until May 16, 1973. At that time Gnau appeared and requested a postponement on the ground that he was without counsel. It appears that his attorneys had withdrawn from the case in January, 1973. Gnau advised the Board that he had consulted another attorney who “has all the papers and everything else.” Counsel for the County and the attorney for the protestants requested that the hearing proceed. The Board observed that Gnau “had plenty of notice to get help”, and it decided to hold the hearing as scheduled.

The testimony produced on behalf of the County and the protestants quickly reduced the number of alleged violations to the sole question of whether Gnau was operating a truck terminal within a B. L. (Business, Local) zone. The Board, in its opinion of February 1, 1974, held that Gnau was operating a truck terminal within the B. L. zone and ordered that such operation cease within 45 days from the date of the Order of the Board. Gnau then appealed to the Circuit Court. Judge MacDaniel affirmed the ruling of the Board, and Gnau has appealed to this Court where he poses four questions, namely:

1. Did the hearing judge err in refusing to reverse the Board on the ground that Gnau was denied his constitutional right to counsel before the Board?
2. Did the Circuit Court err in denying Gnau’s motion for default judgment?
3. Was the evidence before the Board sufficient to sustain a finding that Gnau was operating a “truck terminal?”
4. Were the “protestants . . . proper parties of the hearing.. . before the Board?”

I.

The main thrust of the appellant’s argument in this Court is concerned with what he perceives to be a denial to him of due process of law. This denial, in appellant’s view, was occasioned by the Board’s refusal to postpone the hearing of May 16, 1973, because appellant was without counsel. Gnau cites a number of cases that have been decided by the Supreme Court, the Court of Appeals of Maryland and this Court, all to the total effect that “due process” requires a fair opportunity to obtain counsel, and an opportunity to be heard. No one can seriously quarrel with the Supreme Court’s holding in Morgan v. United, States, 304 U. S. 1, 58 S. Ct. 773, 82 L. Ed. 1129 (1938), when it stated:

“The vast expansion of this field of administrative regulation in response to the pressure of social needs is made possible under our system by adherence to the basic principles that the legislature shall appropriately determine the standards of administrative action and that in administrative proceedings of a quasi-judicial character the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. These demand ‘a fair and open hearing’ — essential alike to the legal validity of the administrative regulation and to the maintenance of public confidence in the value and soundness of this important governmental process. Such a hearing has been described as an inexorable safeguard.” (Citations omitted).

If for the purposes of this case we define “due process”, which has been characterized as a “phrase of convenient vagueness” to mean adequate notice, the opportunity to be heard, the opportunity to be confronted by accusers, the right to a fair and impartial public hearing, the opportunity to employ counsel of one’s own choosing, the opportunity to call witnesses in one’s own behalf, the right to testify personally or refrain from so testifying, and the right to seek redress in the courts, we have no hesitancy in holding that the appellant has not, on the basis of the record before us, been denied his constitutional right to due process.

The record simply does not support appellant’s bald allegation, in his brief, “that he was only notified [of his prior counsel’s withdrawal] a few days prior to the hearing.” Furthermore, the members of the Board were not even assured that if they had granted a postponement, appellant could obtain counsel. A letter bearing the date of May 16, 1973 and delivered to the Board on the afternoon of the hearing underscores that uncertainty. The letter signed by a member of the bar states:

“Please be advised that it is our intention to confer at length with Mr. Gnau about representation of him in the above matter. This conference will take place in the very near future and once terms of employment are agreed upon we will then enter our appearance. We have not had the opportunity to confer previously in view of the fact that I have been ill. However, we will confer promptly and if and when terms of employment are agreed upon will enter our appearance.” (Emphasis supplied). ■

Possible future employment of counsel was obviously too slender a reed to justify, in the Board’s view, the postponement of the case.

In Bernstein v. Bd. of Education, 245 Md. 464, 226 A. 2d 243 (1967) the Court of Appeals considered a case wherein the Board of Education gave notice of a hearing to be held six days thereafter. The notice was given to parents of children who would be affected by a proposed transfer from one elementary school to another. At the hearing some parents requested a continuance in order that they might obtain counsel. The Board denied the requested continuance. Judge Oppenheimer, writing for the Court, said at 474-75:

“The granting of a continuance is within the sound discretion of an administrative agency, as it is in the comparable discretion of a trial court. State Roads Comm’n. v. Wyvill, 244 Md. 163, 168, 223 A. 2d 146 (1966). There was sufficient time for appellants to employ counsel to appear at the hearing, if they had wished to do so. We find no abuse of discretion.”

The refusal by the Board to continue the instant case, in order to allow appellant further time to retain counsel, was a justifiable exercise of their discretion.

II.

Gnau’s petition of appeal to the Circuit Court was noted on March 6, 1974. Md. Rule B9 prescribes that an answer to an appeal from an administrative agency shall be filed by a “[p]arty to the proceeding before the agency” within 30 days “after the filing of the petition of appeal.” The Board submitted to the Circuit Court what is designated as:

“ANSWER TO ORDER OF APPEAL TO CIRCUIT COURT FOR BALTIMORE COUNTY AND CERTIFIED COPIES OF PROCEEDING BEFORE THE ZONING COMMISSION AND BOARD OF APPEALS OF BALTIMORE COUNTY.”

The attachments to the “Answer” consisted of certified copies or original papers from the office of the Zoning Department, zoning docket entries, the opinion of the Board and a transcript of the hearing of May 16,1973.

Because Baltimore County, acting through its solicitor, did not file an “answer” to the petition, Gnau moved for a judgment by default against the County. The appellees, George J. Seidel and Claude M. Kinlein, had in the interim filed the answer required by the Rule. We do not have the benefit of knowing upon what basis the judge denied Gnau’s motion, inasmuch as the docket entries disclose the bare fact that the motion was “Denied”.

In this Court the County argues somewhat ingenuously we think, that the Board’s transmittal of the record to the Circuit Court, operated as an “answer” within the meaning of Rule B9. We do not see it that way. The Board’s mere forwarding of the record to the Court is not tantamount to an “answer” by the County Solicitor within the clear meaning of Rule B9.

Recognizing that its argument may be untenable, the County alternatively suggests that in any event the appellant has not been prejudiced by the non-compliance with Rule B9 by the County, citing Pahl v. County Bd. of Appeals, 237 Md. 294, 206 A. 2d 245 (1965). In Pahl the Court said:

“Finally, the appellants claim that the trial court erred in permitting oral argument by counsel for the applicants where no answer to the petition for appeal or no petition to intervene had been filed on behalf of the applicants prior to the argument in the court below pursuant to Maryland Rule B9. While we do not condone the practice followed in the trial court and the overruling of the appellants’ objection to hearing oral argument without compliance with this procedural rule, since the appellants concede that no prejudice resulted we see no need to further pursue the matter.”

Gnau, however, is not as magnanimous as Pahl. He has not conceded the lack of prejudice to his cause by the hearing judge’s denial of the motion for judgment by default. Gnau asserts, and we agree, that the County should have been required to comply with Rule B9. The Court of Appeals and this Court have on a number of occasions stated that the Maryland Rules of Procedure are not mere guides or helpful hints to the practice of law, but are precise rubrics that are to be read and followed. Isen v. Phoenix Insurance Co., 259 Md. 564, 270 A. 2d 476 (1970); Brown v. Fraley, 222 Md. 480, 161 A. 2d 128 (1960); Callahan v. Dean, 17 Md. App. 67, 299 A. 2d 479 (1973); Pearson v. State, 15 Md. App. 462, 291 A. 2d 167 (1972); Ritter v. Danbury, 15 Md. App. 309, 290 A. 2d 173 (1972); In re Arnold, 12 Md. App. 384, 278 A. 2d 658 (1971). Nevertheless, Gnau’s being right with respect to the County’s participation in this case, avails him of little because Seidel and Kinlein, the appellees, did properly answer Gnau’s petition of appeal and hence the matter was before the Circuit Court. In any event, we see no prejudice.

III.

Section 101 of the Baltimore County Zoning Regulations defines a truck terminal as:

“.. . Any building, or other structure, and/or land devoted primarily to the transfer of merchandise from one truck or truck trailer to another or devoted to the lay-over parking of trucks or trailers . . . .” (Emphasis supplied).

It is manifest that the above-quoted definition necessitates one of two events occurring before a particular business operation falls within the meaning of a truck terminal: (1) A use “devoted primarily to the transfer of merchandise from one truck to another” or (2) a use devoted to “lay-over parking of trucks or truck trailers.” Gnau would have us read the above quoted definition so as to substitute “and” for “or”, thus making the two separate disjunctive clauses conjunctive. We refuse to do so. Courts are not free to rewrite statutes or ordinances. Their function is to interpret, and interpretation “does not include the power of amendment under the guise of interpretation.” West Coast Hotel Co. v. Parrish, 300 U. S. 379, 57 S. Ct. 578, 81 L. Ed. 703, 108 A.L.R. 1330 (1937) (dissenting opinion). “Rules of statutory construction are to be resorted to when there is a doubt, ambiguity, or uncertainty, and they are never used to create doubt, but only to remove it.” Helvering v. Northwestern Nat. Bank & Trust Co., 89 F. 2d 553 (8th Cir. 1957). The ordinance in the case now before us is clear and unambiguous, and it requires no judicial interpretation. It is written in language that ordinary persons can readily understand, and the construction placed upon it by the appellant defies common sense. A complete answer to appellant’s argument is found in a Letter to William Johnson by Thomas Jefferson, June 12, 1823 wherein the late President penned:

“Laws are made for men of ordinary understanding and should therefore be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties, which may make anything mean everything or nothing at pleasure.”

The undisputed evidence in this case demonstrated that the appellant kept seven or eight of his trucks on the subject property overnight, each night. That testimony perspicuously established that Gnau was, in fact, operating a truck terminal as that term is defined in the County Zoning Regulations, § 101. Inasmuch as the conducting of truck terminal business in a B. L. zone is, in the absence of a special exception, proscribed by the Zoning Regulations, the Board was correct in finding that Gnau was in violation of the Zoning Regulations. It follows that the Circuit Court was correct in affirming the Board.

IV.

Lastly, appellant contends that the appellees, Seidel and Kinlein, are not “aggrieved” parties and consequently, have no standing in this case. The theme of Gnau’s argument is that neither Seidel nor Kinlein fall within the ambit -of “aggrieved parties” as that term has been defined by the Court of Appeals and this Court.

The testimony shows that Seidel resides “700 feet south” of the appellant’s property and that the trucks of Gnau are visible from the road. Kinlein resides with his mother at 6707 Loch Raven Boulevard. He testified that on his “day off or on Sunday” he “would see them [the trucks] in the back or sometimes just the top part of the trucks.” He said he could see “from 4 to 6” trucks. The property in which Kinlein resides is immediately south of and contiguous to that of Seidel.

Judge Barnes, in Bryniarski v. Montgomery Co., 247 Md. 137, 230 A. 2d 289 (1967), after noting that “ ‘aggrieved’ has not been legislatively defined” went on to state at 144:

“Generally speaking, the decisions indicate that a person aggrieved by the decision of a board of zoning appeals is one whose personal or property rights are adversely affected by the decision of the board. The decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specifically affected in a way different from that suffered by the public generally. DuBay v. Crane, 240 Md. 180, 185, 213 A. 2d 487 (1965). The circumstances under which this occurs have been determined by the courts on a ease by case basis and the decision in each case rests upon the facts and circumstances of the particular case under review. Certain principles, however, have evolved. They are as follows:

2. In cases involving appeals under the provisions of a zoning ordinance:

(a) It is sufficient if the facts constituting aggrievement appear in the petition for appeal either by express allegation or by necessary implication. Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 225 A. 2d 294 (1966).
(b) An adjoining, .¡confronting or nearby property owner is deemed prima facie, to be specially damaged and, therefore, a person aggrieved. The person challenging the fact of aggrievement has the burden of coming forward with evidence to establish that the petitioner is not in fact aggrieved .. .”

See also Wier v. Witney Land Co., 257 Md. 600, 263 A. 2d 833 (1970).

When we apply the test of Bryniarski to the case now before us it is obvious that Seidel and Kinlein fall within the ambit of the “adjoining, confronting or nearby property owner” and thus are deemed to be “prima fade ... specially damaged.” We are unable to find within the record any evidence whatsoever of a challenge to “the fact of aggrievement”. Consequently, appellant has not met his burden of coming forward with evidence in order to overcome the prima fade presumption of aggrievement that sürrounds the appellees.

At the hearing before the Board one of the board members styled the cáse as “quasi-criminal”. Gnau seizes upon that expression, assumes its truth and then proceeds to assert that appellees’ interest then would diminish to that of the general public since criminal cases are matters between the State and the accused. We regard appellant’s argument as too specious to require discussion.

Judgment affirmed.

Costs to be paid 2/z by appellant and l/z by Baltimore County.

      . Hough, Due Process of Law-Today, 32 Harv. L. Rev. 218 (1919).


author: Orth, C. J.,

text:
    IN RE APPEAL NO. 544, September Term, 1974 from the Circuit Court for Cecil County, SITTING AS A JUVENILE COURT
    [No. 544,
    September Term, 1974.]

      Decided February 24, 1975.

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

      Stefan Rogers Skipp, Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donald C. Cole, Jr., State’s Attorney for Cedi County and Frank Thomas Howard, Assistant State’s Attorney for Cedi County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF THE CASE

On 27 June 1974 in the Circuit Court for Cecil County, sitting as a Juvenile Court, a male child 15 years of age (appellant), whose identity Maryland Rule 1097 forbids us to reveal, was found to be delinquent. He was committed to the Maryland Training School for Boys for an indefinite period. He appealed. Courts Art. § 12-301.

ISSUE FOR DECISION

Despite the limited nature of the question presented by appellant, we think that what is called for on this appeal is a review of the requirements with respect to the conduct of an adjudicatory hearing in a juvenile cause. The real issue for decision is whether those requirements were observed, and if not, whether the failure to do so was so prejudicial to appellant as to require reversal of the judgment.

THE LAW

A child, Courts Art. § 3-801 (e), is brought before a juvenile court by the filing of a petition. Rule 902. See Courts Art. §§ 3-810 to 3-813, inclusive. The petition shall include the statutory classification of the act or condition causing the child to come under the jurisdiction of the court and a statement in simple nontechnical language of such facts on which the action is based as are sufficient to establish the court’s jurisdiction. Rule 903, § b 3 and 4. A party may file a pleading denying or admitting all or a part of the facts alleged or a motion raising preliminary objection. K no pleading is filed, the parties are deemed to have denied the allegations. Rule 904. After a petition has been filed and unless jurisdiction has been waived, the court shall hold an adjudicatory hearing. Courts Art. § 3-829 (a). “ ‘Adjudicatory hearing’ means a hearing to determine the truth of the allegations in the petition.” Courts Art. § 3-801 (b). See Rule 908. The adjudicatory hearing is not a criminal proceeding. Jackson v. State, 17 Md. App. 167; Matter of Davis, 17 Md. App. 98; Matter of Wooten, 13 Md. App. 521. But when the allegation is that a child is delinquent, the adjudicatory hearing attains many of the incidents of a criminal proceeding, although it shall be conducted by the court without a jury. Rule 903 a. The State’s attorney shall prepare and present the testimony in behalf of the petitioner unless excused by the court. Rule 912 b. “The rules of evidence applicable to criminal cases shall apply to delinquency hearings.” Rule 912 c. The allegation in the petition must be proved beyond a reasonable doubt. Courts Art. § 3-830 (a). “A child may remain silent as of right during an adjudicatory hearing on an allegation of delinquency and shall be so advised.” Rule 917. In an adjudicatory delinquency hearing, unlike other juvenile hearings, the presence of the child may not be excluded by the court, even temporarily. Rule 908 b. “A party is entitled to representation by legal counsel at every stage of any proceeding under [the juvenile causes] subtitle.” Courts Art. § 3-830 (d). Rule 918 b, implementing this statute with respect to a child, provides: “Unless knowingly and intelligently waived, an indigent child shall be entitled to have counsel appointed by the court to represent7him in a waiver, adjudicatory or disposition hearing ... if his parents are also indigent or unwilling to employ counsel.” See Code, Art. 27A, title “Public Defender”, § § 1 and 4. And we point out that in one aspect the burden on the petitioner in a delinquency adjudicatory hearing is even greater than the burden on the State in a criminal prosecution. “An uncorroborated confession made by a child out of court is not sufficient proof of delinquency.” Courts Art. § 3-830 (a). We summed up the law contemplated as to an adjudicatory hearing to determine delinquency in Matter of Brown, 13 Md. App. 625, 632:

“We think it within the clear contemplation of the Maryland law that the ‘adjudicatory hearing’ is that phase of the total proceeding whereto witnesses are summonsed; whereat they are sworn, confronted with the alleged delinquent, examined and cross-examined; whereat their demeanor is observed, their credibility assessed and their testimony weighed; whereat the testimony is subject to the rules of evidence and is transcribed by a court reporter; whereat the alleged delinquent is represented by counsel and where he enjoys the right to remain silent under Maryland Rule 917; whereat the State’s Attorney marshals and presents the evidence for the petitioner; and whereat the presiding judge or master makes and announces his finding including ‘a brief statement of the grounds upon which . . . [he] bases. . . [his] determination.’ ”

In McKeiver v. Pennsylvania, 403 U. S. 528, 533, the Supreme Court of the United States said:

“Some of the constitutional requirements attendant upon the state criminal trial have equal application to that part of the state juvenile proceeding that is adjudicative in nature. Among these are the rights to appropriate notice, to counsel, to confrontation and to cross-examination, and the privilege against self-incrimination. Included, also, is the standard of proof beyond a reasonable doubt.”

THE FACTS

The Pleadings

On 19 June 1974 two petitions were filed in the Circuit Court for Cecil County sitting as a Juvenile Court showing that appellant was a delinquent child. Petition No. 3370 gave as reason that “on or about September 12, and September 14, 1973” appellant broke into a certain dwelling house with intent to steal personal property and that he “unlawfully did, or did attempt to, steal, take and carry away” designated personal goods of the value of less than $100. Petition No. 3371 gave as reason that “on April 30 and May 3, 1974” appellant broke into the same dwelling house with the same intent and “unlawfully did, or did attempt to, steal, take and carry away” certain designated personal goods of the value of less than $100. The petitioner was Robert G. Ellis, whose “relationship or concern” was given as “Investigating Officer” of the Maryland State Police. The petitions were authorized by R. Darrell King, whose title was given as “Juvenile Probation Officer,” Department of Social Services.

On 24 June 1974 identical answers were filed to the petitions. Each “Answer” consists of a printed form, designated as “Form 38”, on which it is stated “To be prepared by: Agency authorizing filing of petition.” Apparently, therefore, each was prepared by the Department of Juvenile Services. It is addressed to the Judges of the Juvenile Court, and the first part reads:

“In answer to the petition filed in the above entitled case, we, the undersigned, hereby state that the following facts are true:
1. We have received a copy of the petition, have read the petition, have had the allegations explained to us and are satisfied that we understand the statements contained in the petition.
2. We have been advised that should the Court make a finding of delinquency [“child in need of supervision” crossed out] the Court could take jurisdiction and make such disposition as the Court feels is most suitable.
3. We have been advised that we have a constitutional right to be represented by an attorney in the case.
4. We have been advised that we have the right to be represented by a Public Defender if we are unable to afford an attorney.
5. We have been advised that we have a right to a full hearing on the petition, and that in the event of a finding of delinquency [“child in need of supervision” crossed out] we have a right of appeal to the Court of Special Appeals of Maryland.
6. In filing this Answer we have not been offered any promise of favor or reward, and we have not been threatened or made afraid by any person representing or employed by any government agency.”

This statement follows:

“WHEREFORE, being satisfied that we have received fair notice of the allegations in the petition and that we understand the allegations and our rights as set forth above, we, the undersigned, voluntarily and of our own free will:
1. (x) waive the right to be represented by an attorney.
2. (x) waive the right to a hearing on the allegations in the petition; admit that the statements in the petition are true and correct; and, consent to have the Court make a finding of delinquency [‘child in need of supervision’ crossed out] and make an appropriate disposition in this case.”

The “x” indicating that 1 and 2 applies is typed in. Each Answer is signed by appellant and his mother and witnessed by King over the title, “Juvenile Counselor.”

The Adjudicatory Hearing

The petitions came on for hearing on 27 June 1974 in the Circuit Court for Cecil County sitting as a Juvenile Court. An assistant State’s attorney appeared in behalf of the petitioner. Appellant was not represented. The judge was informed that the petitions had been answered, identified appellant and his parents, and said he was “going through this because I see you are here without a lawyer and I want to protect your Constitutional rights.” He explained the allegations thus:

“[Appellant] is charged with breaking into the dwelling house of Michael Fabiucci of Charlestown on the 12th and 14th of September last year and stealing alcoholic beverages plus some other things valued at less than $100.00. He’s also charged with — that first was Juvenile 3370.
The second is Juvenile 3371, which he’s charged doing just about the same thing, breaking into the dwelling house of the same person and the same things. This occurred on the 30th of April and again on the 3rd of May, 1974.”

He made inquiry about the Answers:

“Do you recall signing that?
[Mother]: (Nods in assent.)
THE COURT: You know in that case that [appellant] admits doing both these things? You understand that, . . . . ?
[Appellant]: (Nods in assent.)
THE COURT: And also you are willing to proceed here this morning without a lawyer. You have a Constitutional right to a lawyer if you want one. Is that understood?
[Appellant]: (Nods in assent.)”

Thereupon, the judge entered “a finding of delinquency”, and stated: “[W]e will have a few facts from the Department of Juvenile Services and we will find a delinquency in law, after which we will go ahead and decide what ought to be done.” King testified. Examined by the Assistant State’s Attorney he said that he had done “intake counseling work” with appellant in connection with the petitions and was familiar with the “factual background” of them. He said he was prepared, based on his counseling, to tell whether appellant was in need of care, treatment and rehabilitation. The judge interjected: “In order to be legal about it, let’s split your presentation to telling us why he needs care and I’ll make the adjudication . . . .” King gave three reasons why appellant was in need of guidance, treatment and rehabilitation. He had been found to be delinquent in November of 1973 and placed on probation which was still open. The offense then was the same type as now charged — breaking into a residence or store and stealing alcoholic beverages. There were “some problems at home with [him], specifically in the area of drinking, the use of alcoholic beverages, coming in late at night, and then lying to his parent about his activities.” The last factor “is that there is a somewhat disturbing development and medical history, which may indicate some problems for [him].” No more specificity with respect to any of the reasons was offered or requested. The judge said: “Enter a finding of delinquency, Mr. Clerk.”

The Disposition Hearing

A disposition hearing followed immediately. Courts Art. § 3-829 (b). The judge made further inquiry of King, received information from him and made disposition: And, further, that he be committed to the Maryland Training School for Boys for an indefinite period and, as part of that program, that he be processed in the Maryland Children’s Center for whatever evaluation and help he can gain by such processing.
“The disposition in this case shall be that [appellant], first of all, shall make restitution in
the amount of $38.50 in Juvenile 3370, and that he shall make restitution in the amount of $247.31 in Juvenile 3371, that amount in the last case be reduced by whatever [three others involved in the offenses] might happen to wind up paying. And that his parents, . . ., being present in this Court today, are likewise charged with making these payments and I would urge contempt citations if these payments are not made in accordance with Juvenile Services — with his parents and Juvenile Services.
And he is committed to the custody of the Sheriff or Juvenile Services, or however you want to handle it for transportation to the Maryland Training School for Boys.”

King asked if appellant was to go to the Maryland Training School for Boys. The judge replied: “Whatever’s the most convenient except I don’t want him in the community. I want him institutionalized. He’s committed to the Maryland Training School for Boys, yes.”

DECISION

Assistance of Counsel

By legislative enactment, a party in a juvenile case “is entitled to representation by legal counsel at every stage of any proceeding under this subtitle [8, Juvenile Causes].” Courts Art. § 3-830 (d), “Right to Counsel.” Rule 918, § a provides: “The parties may be represented by counsel retained by them in all proceedings.” Section b reads: “Unless knowingly and intelligently waived, an indigent child shall be entitled to have counsel appointed by the court to represent him in a waiver, adjudicatory or disposition hearing or a hearing under Rule 915 [“Modification, Vacation or Renewal of Orders”] if his parents are also indigent or unwilling to employ counsel. In all cases not involving delinquency, the right to have counsel appointed shall apply only to those proceedings which are contested.” By ch. 209, Acts 1971, which created the position of Public Defender in Maryland, the legislature declared that it was the policy of the State and the legislative intent “to provide for the realization of the constitutional guarantees of counsel in the representation of indigents, including related necessary services and facilities, in criminal and juvenile proceedings within the State, and to assure effective assistance and continuity of counsel to indigent accused taken into custody and indigent defendants in criminal and juvenile proceedings before the courts of the State of Maryland, and to authorize the Office of Public Defender to administer and assure enforcement of the provisions of this article in accordance with its terms.” (emphasis added). Code, Art. 27A, § 1. The Act imposed the duty on the Public Defender to provide legal representation for indigent defendants, in certain proceedings, Code, Art. 27A, § 4, including, “In any criminal or juvenile proceeding constitutionally requiring the presence of counsel prior to presentment before a commissioner or judge,” subsection (b) (1); “Criminal or juvenile proceedings, where the defendant is charged with a serious crime, before the District Court of Maryland, the Supreme Bench of Baltimore City, the various circuit courts within the State of Maryland, the Court of Special Appeals of Maryland, and the Court of Appeals of Maryland,” subsection (b) (2); and “Any other proceeding where possible incarceration pursuant to a judicial commitment of individuals in institutions of a public or private nature may result,” subsection (b) (5).

It is clear that appellant was entitled to representation by legal counsel with regard to the petitions filed against him. This includes legal assistance not only at the adjudicatory hearing but also with regard to the signing of the Answers. The effect of the Answers, if valid, would be to determine the matter of appellant’s delinquency with little more ado. By them, he not only waived representation of counsel, but relinquished his entitlement to a hearing, surrendered his right to have the allegations proved beyond a reasonable doubt, dispensed with the need to be confronted by the witnesses against him, gave up the guarantee against self-incrimination, confessed that he committed the offenses charged, consented to be found delinquent and agreed to have the court make “an appropriate disposition,” all without the benefit of counsel. See Freeman v. Wilcox, 119 Ga. App. 325, 167 S.E.2d 163 (1969).

If appellant was indigent, and if his parents were either indigent or unwilling to employ counsel for him, it was the duty of the Public Defender to represent him. It cannot be ascertained from the record whether he was entitled to the services of the Public Defender because we find no inquiry concerning the matter. Apparently reliance was had on the bald statement of waiver in the Answers. Therefore, whether appellant and his parents were indigent or not, or whether his parents, financially able to employ counsel, were unwilling to do so or not, is not material at this point. The initial question is whether there was an effective waiver of the right to the assistance of counsel.

The Court of Appeals has carefully delineated the procedure to be followed with respect to waiver of counsel in a criminal proceeding. Its Rule 719, § c, entitled “Waiver Inquiry”, prescribes:

“If, at any stage of the proceeding, an accused indicates a desire or inclination to waive representation, the court shall not permit such a waiver unless it determines, after appropriate questioning in open court, that the accused fully comprehends: (i) the nature of the charges and any lesser-included offenses, the range of allowable punishments, and that counsel may be of assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof; (ii) that the right to counsel includes the right to the prompt assignment of an attorney, without charge to the accused if he is financially unable to obtain private counsel; (iii) that even if the accused intends to plead guilty, counsel may be of substantial value in developing and presenting material which could affect the sentence; and (iv) that among the accused’s rights at trial are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of the charges beyond a reasonable doubt.”

Section f requires the docket entries or transcript affirmatively to show compliance with the Rule. The Rule implements the constitutional mandates enunciated in Gideon v. Wainwright, 372 U. S. 335; Johnson v. Zerbst, 304 U. S. 458, and Carnley v. Cochran, 369 U. S. 506. It has been consistently held that the requirements of the Rule are mandatory, and that compliance with them is required irrespective of the type of plea entered, or the lack of an affirmative showing of prejudice to the accused. Manning v. State, 237 Md. 349; Taylor v. State, 20 Md. App. 404; State v. Diggs, 24 Md. App. 681. Although Rule 719 is applicable only to criminal cases, Rule 1 a 2, and a juvenile adjudicatory hearing is not technically a criminal case, although endowed with many of the incidents of a criminal trial, see supra, we believe no less is required for a knowing and intelligent waiver of counsel in a delinquency proceeding involving children than is required in a criminal proceeding, ordinarily involving adults. To have a less strict standard for an effective waiver of counsel by a child than by an adult would be completely incongruous. The Supreme Court of the United States observed in North Carolina v. Alford, 400 U. S. 25, 37, that “. . . the Constitution is concerned with the practical consequences, not the formal categorizations, of state law.”

With the provisions of Rule 719 as the criterion, we find, on the record before us, that the court should not have permitted the waiver of representation. We hold that, due to the lack of counsel, the waivers and admissions in the Answers were invalid and ineffective and the adjudicatory hearing was void. The judgment is reversed.

The Conduct of the Hearing

Aside from the fatal defect of lack of assistance of counsel, we have other serious questions about the conduct of the adjudicatory hearing. Patently the adjudicatory hearing did not measure up to what we said in Matter of Brown, supra, was contemplated by the law of this State, and, certainly it did not afford appellant the due processes of the law. We discuss our concerns for the guidance of the lower court.

The Sufficiency of the Evidence

To prove that appellant was a delinquent child, the State’s Attorney had to adduce evidence which proved beyond a reasonable doubt (1) that an act had been committed which would be a crime if committed by a person who is not a child, that is the corpus delicti; (2) that appellant committed it, that is his criminal agency; and (3) that appellant required supervision, treatment or rehabilitation. The judge below made two findings of delinquency. The first of “delinquency in fact” and the second of “delinquency in law.” The authority for this procedure is not evident to us. As best we understand, the first finding was with respect to the corpus delicti and criminal agency of the offense constituting a delinquent act; the second was with respect to the need for supervision, treatment or rehabilitation. The first finding was arrived at in this way. The judge, noting that appellant and his mother had signed the Answers, asked, “Do you recall signing that?” The record shows that the mother nodded in assent, whereupon the judge said, “You know in that case that [appellant] admits doing both these things? You understand that The record reflects that appellant nodded in assent. “These things” referred to by the judge, were what he had just before said were the charges against appellant, the breaking into a dwelling house on 12 and 14 September 1978 and stealing personal goods valued under $100 and “doing just about the same thing, breaking into the dwelling house of the same person and the same things” on 80 April and 3 May 1974. It Is difficult to say exactly what crimes appellant admitted committing. The allegations in the petitions, as we have indicated, amounted to a number of offenses, some inconsistent with the others, as the commission of an offense and the attempt to commit It, Boone v. State, 2 Md. App. 80. But more significant, it is woefully apparent that there was no proof whatsoever of the corpus delicti of any crime, not by way of testimony, stipulation, agreed statement of facts, or otherwise. Nor is there evidence sufficient in law to show appellant’s criminal agency in any crime. The judge relied entirely on the admission by appellant in the Answers that “the statements in the petition are true and correct.” Even if this admission were effective, and by our ruling it was not, It would not be enough. Courts Art. § 3-880 (a) states without equivocation: “An uncorroborated confession made by a child out of court is not sufficient proof of delinquency.” There was no corroboration here. The judgment of the court that appellant had committed a delinquent act was clearly erroneous. Rule 1086.

There was further error. Rule 917 declares: “A child may remain silent as of right during an adjudicatory hearing on an allegation of delinquency and shall be so advised.” Appellant was not so advised and was called upon to answer questions put to him by the court. The court’s use of the Answers to find the commission of a delinquent act was based upon appellant’s indication that he had made the admissions therein.

Pleading in an Adjudicatory Delinquency Hearing

As we have indicated, both appellant and the State on appeal interpret what went on at the adjudicatory hearing as a plea of guilty by appellant which was accepted by the court. Appellant goes on to argue that the acceptance of the plea was ineffective because it did not meet constitutional requirements. The State claims that the “hearing conducted by the trial judge in accepting the juvenile’s guilty plea measured up to the essentials of due process and fair treatment.” Although we have determined the appeal on another point, again we believe that some comment should be made.

The Rules pertaining to juvenile causes make no provision for pleas such as may be made in criminal causes. Rules 720-724. The only reference to a response to the petition is in Rule 904, which, as we have indicated, provides: “A party may file a pleading denying or admitting all a part of the facts alleged or a motion raising preliminary objection.” The Rule continues: “If no pleading is filed, the parties are deemed to have denied the allegations.” The Rule makes no distinction between delinquency cases and other juvenile cases, even though, as we have pointed out, a delinquency proceeding has many of the incidents of a criminal proceeding, and ordinarily requires proof of the commission of a crime by the juvenile. But even if there is no authorization for a plea of guilty in a delinquency proceeding, if admissions by the juvenile by answer or in open court have, in fact, the effect of a guilty plea, we believe the affirmative acceptance by the court should be required under the constitutional guidelines applicable to a plea of guilty in a criminal case. In other words, such admissions may be effectively accepted and considered by the court only under the standard applicable to waiver of constitutional rights as explicated by us in Williams v. State, 10 Md. App. 570.

Judgment reversed; case remanded for a new adjudicar tory hearing; a new disposition hearing to abide the result.

      . Appellant presents the question: “Did the trial court commit reversible error by accepting a Juvenile’s guilty plea without administering the standard applicable to waiver of Constitutional rights?” He argues that the trial court committed reversible error. The State urges that “the manner in which the trial judge accepted the juvenile’s guilty plea [measured] up to the essentials of due process and fair treatment.”
      Although, under Rule 1085, we do not ordinarily decide any question which does not plainly appear by the record to have been tried and decided by the lower court, we may decide such question where it is necessary or desirable for the guidance of the lower court or to avoid the expense and delay of another appeal.

      . “ ‘Party means the child against whom a complaint has been made, and his parent, guardian or custodian.” Rule 901 § a 2.

      . We said in Matter of Davis, supra, that a child under the jurisdiction of a juvenile court is conclusively presumed doli incapax. 17 Md. App. at 101-102. “No adjudication of the status of a child under this subtitle [8, Juvenile Causes] is a criminal conviction for any purpose nor does it impose any of the civil disabilities ordinarily imposed by a criminal conviction.” Courts Art. § 3-833. “The proceedings in the juvenile court regarding a child are not admissible as evidence against him in criminal proceedings, prior to conviction, unless the charge is perjury.” Courts Art. § 3-834.

      . “ ‘Child’ means a person under the age of 18 years who is subject to the jurisdiction of the court, and includes a minor.” Courts Art. § 3-801 (e). “ ‘Delinquent child’ means a child who commits a delinquent act and who requires supervision, treatment, or rehabilitation.” Courts Art. § 3-801 (k). “ ‘Delinquent Act’ means an act which is in violation of the State Vehicle Law, any other traffic violation, or an act which would be a crime if done by a person who is not a child.” Courts Art. § 3-801 (j).

      . A person 18 years of age or over proceeded against by petition for causing a child to be adjudicated delinquent, neglected or in need of supervision, Courts Art. § 3-840, may elect to be tried either before the court exercising juvenile jurisdiction or the criminal court. “Trial in the court exercising juvenile jurisdiction shall be had according to the usual criminal procedure except for trial by jury and shall be prosecuted by the State’s attorney.” Rule 910.

      . In a criminal proceeding the rule is that an extra-judicial confession will not warrant a conviction unless there is independent evidence to establish the corpus delicti. Stackhouse v. State, 1 Md. App. 399, 402 and cases therein cited. “However, it is not necessary that the evidence independent of the confession be full and complete or that it establish the truth of the corpus delicti either beyond a reasonable doubt or by a preponderance of proof . . . .” Cooper v. State, 220 Md. 183, 190. If there is such evidence with respect to the corpus delicti, a confession requires no corroboration. See Whitmerv. State, 1 Md. App. 127, 130.

      . It is the felony of burglary to break and enter any dwelling house in the nighttime with intent to steal, take, or carry away the personal goods of another of any value, Code, Art. 27, § 30 (a), and it is a felony to break a dwelling house in the daytime with intent to commit murder or a felony or to steal, take or carry away the personal goods of another of any value, Code, Art. 27, § 30 (b). As of 1 July 1973, it is a misdemeanor to break and enter the dwelling house of another. Code, Art. 27, § 31A. It is a misdemeanor to steal, take or carry away personal goods of another under the value of $100. Code, Art. 27, § 341 (a). See Boswell and, Poe v. State, 5 Md. App. 571; Reagan v. State, 4 Md. App. 590. An attempt to commit an offense constitutes a common law misdemeanor. Fisher v. State, 1 Md. App. 505.

      . Those proceedings are reflected in the docket entries as follows:
      “Hearing. . . .
      Waived right to an attorney.
      Finding: Delinquent in Fact.
      Witnesses sworn. Testimony heard and taken.
      Finding: Delinquent.”

      . As we have indicated, to be found delinquent a child must be shown to (1) have committed a delinquent act, and (2) require supervision, treatment or rehabilitation. Courts Art. § 3-801 (k). “Disposition hearing” is defined to mean “a hearing to determine (1) Whether the child is in need of supervision, treatment, or rehabilitation; and, if so, (2) The nature of the supervision, treatment or rehabilitation.” Courts Art. § 3-801 (n). Thus, there appears to be an overlapping. To be delinquent, a child must be in need of supervision, treatment, or rehabilitation. This, therefore, has already been determined at the adjudicatory hearing before the disposition hearing is held.

      . The propriety of the judgment as to the parents is not before us. See, however, Matter of Sorrell, 20 Md. App. 179.

      11. Code, Art. 27A, § 2 (h) defines a “serious crime.” See Laquay; v. State, 16 Md. App. 709.

      . At the adjudicatory hearing the extent of inquiry of appellant by the court concerning an attorney was, as we have indicated, the question: “And you are willing to proceed here this morning without a lawyer. You have a Constitutional right to have a lawyer if you want one. Is that understood?” The record shows only that appellant “Nods in assent.”
      We note that on appeal, appellant was represented by an attorney assigned by the Public Defender.

      . All of what the judge said is set out verbatim earlier in the opinion.

      . In this regard there is no distinction between an “admission” and a “confession.” See Rock v. State, 6 Md. App. 618. Cf. Stewart v. State, 232 Md. 318.
      We do not consider the possible application of the dictates of Miranda v. Arizona, 384 U.S. 436, and of the prohibitions set out in Courts Art. § 3-820, “Certain information or statements inadmissible at subsequent hearings.”

      . It may be advisable for the Standing Committee on Rules of Practice and Procedure to review Rule 918 in the light of Courts Art. § 3-830 (d) and Rule 719, § c, and also to consider expansion of Rule 904 to cover specifically the area of pleas in delinquency proceedings.