author: Gilbert, C. J.,

text:
    MARYLAND STATE DEPARTMENT OF HEALTH AND MENTAL HYGIENE et al. v. PRINCE GEORGE’S COUNTY DEPARTMENT OF SOCIAL SERVICES et al.
    [No. 456,
    September Term, 1980.]

      Decided December 16, 1980.

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

      Ellen A. Callegary, Assistant Attorney General, and Daniel J. O’Brien, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellants.

      Richard C. Daniels, with whom was Paul M. Nussbaum on the brief, for appellee Board of Education of Prince George’s County. Ronald D. Schiff for the parents of Linda G. Allen J. Kruger on the brief for appellee Linda G.

       Note: Certiorari denied. Court of Appeals of Maryland, April 16,1981.

   Gilbert, C. J.,

delivered the opinion of the Court.

I.

THE PREFACE

Everyone seems to agree that Linda G. is a child in need of assistance (CIÑA) as defined in Md. Cts. & Jud. Proc. (1980 Repl. Vol.) Code Ann. § 3-801 (e). The disagreement resulting in this appeal has arisen over which institution, public or private, is to furnish that assistance, and of more importance to the parties, just who is to pay for it.

On March 13, 1980, by order of the Circuit Court for Prince George’s County (sitting as a juvenile court), Linda G. was placed in the custody of the appellant, the Maryland Department of Health and Mental Hygiene (DHMH).* 1 The court further directed the appellant to pay the cost of Linda’s care at Taylor Manor, a privately owned hospital.

For approximately two years prior to the order, Linda had been receiving inpatient treatment at Taylor Manor. Her expenses were paid by her parents. By March of 1979, Linda’s parents’ insurance coverage expired and they turned to the State for help. A petition was filed in the juvenile court for Prince George’s County to have Linda declared to be a child in need of assistance, and to obtain an order from the court that the appellee, the Prince George’s County Department of Social Services (PGDSS), assume the financial responsibility for Linda’s treatment at Taylor Manor. The juvenile court judge, by order of April 26, 1979, placed Linda in the custody of both PGDSS and DHMH. The judge directed that PGDSS and DHMH were each to pay Taylor Manor $1,500 per month for Linda’s care and treatment. Interestingly, DI1MH was not even a party to the case when the order directing it to pay was passed. A motion for reconsideration was granted at which time the appellant, together with the Maryland Department of Human Resources and the Prince George’s County Board of Education, were joined as party defendants.

A hearing was held on March 13, 1980. All the parties to the hearing except the DHMH were dismissed. The appellant "or ... [its] appropriate agents ... [were ordered by the court to] undertake the financial responsibility for the care and treatment of Linda [G.] at the Taylor Manor Hospital [a private facility] ... in the amount of ... $3,100.00 per month....” Foreseeing all sorts of financial and budgetary problems that might arise should the juvenile court’s order be allowed to stand, DHMH appealed.

We shall reduce the many issues raised by the appellants to their least common demoninator. Once that is done, the question before us becomes: May a juvenile court judge order the Secretary of the DHMH to assume the obligation to pay the costs of maintaining a CINA in a private hospital, notwithstanding that no funds have been budgeted or, more importantly, have been appropriated for that purpose by the legislature?

II.

THE HOLDING —

Predicated on the doctrine of separation of powers, coupled with the legislative scheme for juvenile mental health services, we hold that the hearing court was without jurisdiction to direct DHMH to shoulder the financial responsibility for Linda’s care and treatment at Taylor Manor. We further hold that no juvenile court has the authority to direct the Secretary of DHMH to pay the cost of treatment of a CINA in a private institution.

III.

THE LAW —

A. The Legislative Intent of Cts. & Jud. Proc. Article § 3-820.

The judicial procedure for the adjudication and disposition of juveniles in need of health or mental hygiene care, or both, is found in the Juvenile Causes Act, codified in Courts Art. § 3-801 through 3-834.

Juvenile court jurisdiction is triggered by the filing of a petition with the court by any interested party, in which petition the court is asked to adjudicate a child as 1) delinquent, 2) in need of supervision, or 3) assistance. Parojinog v. State, 282 Md. 256, 384 A.2d 86 (1978). Thereafter, an adjudicatory hearing, unless waived, shall be held. Courts Art. § 3-819.

Once the allegations are proven, a separate disposition hearing must be held. Under the authority of Courts Art. § 3-820, the child may be committed to several alternative persons or agencies. Section 3-820 provides in pertinent part:

"(a) After an adjudicatory hearing the court shall hold a separate disposition hearing, unless the petition is dismissed or unless such hearing is waived in writing by all of the parties. The disposition hearing may be held on the same day as the adjudicatory hearing, if notice of the disposition hearing, as prescribed by the Maryland Rules, is waived on the record by all of the parties.
(b) The overriding consideration in making a disposition is a program of treatment, training, and rehabilitation best suited to the physical, mental, and moral welfare of the child consistent with the public interest. The court may:
(1) Place the child on probation or under supervision in his own home or in the custody or under the guardianship of a relative or other fit person, upon terms the court deems appropriate;
(2) Commit the child to the custody or under the guardianship of the Juvenile Services Administration, a local department of social services, the Department of Health and Mental Hygiene, or a public or licensed private agency; or
(3) Order the child, parents, guardian, or custodian of the child to participate in rehabilitative services that are in the best interest of the child and the family.” []

When a child is committed to the custody of DHMH, the statutory provisions governing DHMH, as well as those agencies embraced within the Department, are applicable. Designated in Md. Ann. Code art. 41, § 2A (1978 Repl. Vol., 1980 Cum. Supp.) as a "principal department of the executive branch” of the State government, the DHMH "is responsible for carrying out the Governor’s policies in the areas of health and mental hygiene.” Md. Ann. Code art. 41, § 206 (b). Section 206 (e) of Art. 41 enumerates those agencies that are included within the ambit of DHMH. Among those listed agencies are the State Department of Mental Hygiene and the State Department of Juvenile Services.

As a major department of the Executive Branch, section 206 (g) confers upon the Secretary of DHMH the responsibility for the budget of DHMH, while Maryland Constitution Art. Ill, § 52 (11) requires the Secretary to report to the Governor that amount of money needed to operate DHMH so that the Governor may include that sum or an adjusted amount within the budget he submits to the Legislature.

The extent of a court’s authority to commit a child to the care of the appellant can be ascertained from a review of the legislative scheme for the provision of juvenile mental health services in Maryland as well as a recent Court of Appeals’ opinion closely analogous to the factual situation in the case at hand. In In Re Appeal No. 653, September Term, 1975, 277 Md. 212, 352 A.2d 845 (1976), a juvenile court had committed twelve children to the custody of DHMH. Each child had been adjudicated, pursuant to Md. Cts. and Jud. Proc. (1980 Repl. Vol.) Code Ann. § 3-820, a CIÑA. The court, in ordering DHMH to place the children in facilities separate from adults, reasoned that if section 3-823 prohibited the cohabitation of adults and juveniles in jails and other detention facilities, then the Legislature must have intended for them to be housed in separate mental facilities, notwithstanding that there was no express provision to that effect. DHMH was not a party to the adjudicatory proceeding, and it filed a motion to set aside or modify the juvenile court’s order. Claiming that the court had exceeded its statutory authority, DHMH maintained that there were not enough State adolescent facilities to accommodate the court’s order, " 'rendering it impracticable and/or impossible for the Secretary [of DHMH] to comply with the orders.’ ” 277 Md. at 215, 352 A.2d at 847. Thereafter, a hearing was held to consider the DHMH’s position, "at which several expert witnesses testified concerning the feasibility ... of separating adolescent patients from adult patients in mental health facilities. . . .” Id. The juvenile court was apparently unimpressed by DHMH’s arguments inasmuch as it reiterated its original order.

Judge Eldridge, speaking for a unanimous Court, held that the legislature did not intend juveniles to be placed in mental health facilities separate from adults. The Court, in comparing the different subsections under section 3-820 (b) which enumerates the alternative persons or agencies to which a child may be committed, noted that subsection (b) (1) enables the juvenile court to "|p]lace the child on probation or under supervision in his own home or in the custody or under the guardianship of a relative or other fit person, upon terms the court deems appropriate.” (Emphasis in original.). Subsection (b) (2), which authorizes commitment to DHMH, does not, however, contain the phrase "upon terms the court deems appropriate. ” Thus, the Court of Appeals concluded that the legislature did not intend to authorize the juvenile courts "to specify whatever terms it deems appropriate [for commitment to DHMH].” 277 Md. at 217, 352 A.2d at 848. A juvenile court, it was held, could not order DHMH to place children in separate facilities from those of adults. Id.

In re Appeal No. 653, supra, is a clear instruction to this Court to hold that the Circuit Court for Prince George’s County, sitting as a juvenile court, lacked the authority to order DHMH to pay for Linda’s care at Taylor Manor. Section 3-820 (b) (2) empowers the court to commit a child to the custody of DHMH; it does not confer upon the court any right to mandate the specific terms of the commitment.

B. Additional Evidence of Legislative Intent.

The recurring theme permeating the pertinent statutory provisions concerning juvenile mental health services referred to in Courts Art. § 3-820 (b) (2) is the broad discretion in implementing programs and expending appropriated funds.

We are mindful of a basic tenet of statutory construction, that a statute and other complementary provisions must be read as a whole in order to give effect to legislative intent. State v. Fabritz, 276 Md. 416, 348 A.2d 275, cert. denied, 425 U.S. 942 (1975).

Md. Ann. Code art. 43, which governs the general operations of DHMH, vests the Secretary with the discretionary authority, if the State budget so permits, to contract with outside doctors and hospitals should the Secretary believe that an area is substantially deficient in medical care. Md. Ann. Code art. 43, § IF (h).

Section IF (h) provides:

"In the event of the failure of a cooperative effort by and between the Secretary and local community or voluntary organizations to establish medical or health care facilities ... or services for substantially deficient areas, to provide such facilities or services by way of contract with a doctor, groups of doctors, hospitals, or other authorized medical groups or personnel for the provision of necessary medical or health care facilities. Medical or health care facilities may be provided as authorized by the capital budgets of State or local governments.” (Emphasis supplied.)

We think any fair reading of the above-quoted statute will disclose that in using the word areas, the Legislature meant geographical areas of the State wherein the medical or health services are deficient. The word areas does not mean, nor was it ever intended to be a synonym for, a branch of medical or mental health or hygiene or a specialized discipline thereof.

Section 1J (b) instructs the Secretary that he "may make grants from State . . . [appropriated] funds or enter into agreements for the use of such funds to assist public or nonprofit organizations____” (Emphasis supplied.) Turning to Article 52A — Juvenile Services —, section 7 provides that the

"Department [of Juvenile Services] may designate existing public or private agencies or organizations within the State as its agents as, in its discretion, seems desirable or necessary for the purposes of this article. The Department may expend funds for aiding such agencies or organizations or for purchasing services therefrom.. ..” (Emphasis supplied.)

If such funds are not available, Art. 43, § IF (e) permits the Secretary of DHMH to reassign funds from one department to another. Significantly, the General Assembly used the word may as opposed to shall, thereby strongly suggesting that the statutory instructions to the Secretary of DHMH are permissive, not mandatory. The use of may bestows a discretion in the Secretary. See Resetar v. State Board of Education, 284 Md. 537, 547, 399 A.2d 225, 230 (1979); Maryland Medical Services, Inc. v. Carver, 238 Md. 466, 480, 209 A.2d 582, 589-90 (1964). It is, therefore, within DHMH’s discretion to expend appropriated funds, cf. Md. Education (1980 Cum. Supp.) Code Ann. § 8-409, especially purchase of care funds. For the Court to interpret the statute so as to permit all juvenile courts * to direct the appellant to make payments in specified amounts to a specific private institution or person without regard to the appellant’s budget would have disastrous effects on the State treasury. Moreover, it would reduce the Secretary to the position of paymaster, with nothing more to do in such cases than to draw checks periodically and forward them to the court’s designated recipient.

The indiscriminate expenditure of State funds for private placement at the instruction of courts will undermine the State budget, imperil the State’s financial structure, and defeat the Legislature’s intent to promote and provide mental health services with impartiality to all citizens of the State.

We adopt, with slight modification, the language of the New Jersey Superior Court in State of New Jersey in the Interest of D.F., a Juvenile, 145 N.J. Super. 381, 387-88, 367 A.2d 1198, 1201 (1976), cert. denied, 377 A.2d 665 (1977).

"[DHMH] must act not only with respect to the needs of the particular juvenile concerned but also in light of the needs of the thousands of other juveniles equally needy and as limited by available resources. It cannot perform this function if its budget is to be affected by the orders of. .. [all] ... Juvenile .. . court judges [in the State of Maryland] issued without respect to the realities of [DHMH’s] fiscal problems.”

See In Re John Doe, a Juvenile, 390 A.2d 390 (1978).

C. Separation of Powers

An integral part of the Legislature’s giving to the appellant the discretion to use appropriated funds is the doctrine of the separation of powers. The doctrine is a fundamental concept in the constitutional history of this State. See Board of Supervisors of Election v. Todd, 97 Md. 247, 54 A. 963 (1903).

"]T]he Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.” [] Md. Const. Declaration of Rights, Art. 8 (1977 Repl. Vol.).

The Court of Appeals, in Wright v. Wright’s Lessee, 2 Md. 429, 56 Am. Dec. 723 (1852), early identified the purpose of Article 8. The Court stated that the doctrine’s purpose

"is to parcel out and separate the powers of government, and to confide particular classes of them to particular branches of the Supreme authority. That is to say, such of them as are judicial in their character to the judiciary; such as are legislative to the legislature and such as are executive in their nature to the executive.”

While the nature of judicial versus non-judicial actions is not well defined, see Todd, supra at 264, 57 A. at 965, the constitution does not allow the courts to usurp the discretionary functions of the Executive, and the administrative departments of that branch, whose duties and powers have been properly delegated by the Legislature. Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 228, 334 A.2d 514, 524 (1975).

The order of the juvenile court, directing DHMH to pay for Linda’s private placement is a substantial encroachment upon the Executive’s authority to propose the budget and upon DHMH, as an administrative department of the Executive, to use its discretion as granted by the Legislature to expend the appropriated funds.

The people of Maryland have elected a Governor who is the Chief Executive Officer of the State. They have charged him with the task of preparing the State budget and have also made him responsible for the State’s fiscal policies. The budget that the Governor submits to the Legislature for approval and funding "contain[s] a complete plan of [the State’s] proposed expenditures and estimated revenues.” To fulfill his role of preparing the proposed budget, the Governor requires from "all executive departments . . . applying for State moneys and appropriations, such itemized estimates and other information in such form and at such times as .. . [the Governor] shall direct... .” Subsection (4) of Art. Ill, § 52 of the State Constitution mandates that the budget submitted to the Legislature by the Governor "shall embrace an estimate of all appropriations ... (b) for the Executive Department .. . [and] (g) for such other purposes as are set forth in the Constitution or laws of the State.”

The historical development of the Executive’s control over the preparation of the budget was discussed at length in Maryland Action for Foster Children v. State, 279 Md. 133, 367 A.2d 491 (1977). In that case, the facts were that the Legislature had passed a bill requiring that the Social Services Administration’s payment rate to foster care homes be equalized to the payment rates of the Juvenile Services Administration. The budget submitted by the Governor did not include appropriations which would equalize the two rates. Consequently, the Maryland Action for Foster Children sued to compel the State to pay all foster care parents the equalized sum. The Court held that the Governor was not under a mandatory duty to include within his proposed budget funding so as to comply with the legislation. Judge Eldridge, writing for the majority of the Court, emphasized the Executive’s almost exclusive domain over the budget as submitted to the General Assembly. Judge Eldridge observed that prior to 1916, the Legislature had been responsible for the preparation of the budget. Excessive appropriations and a growing deficit prompted reformers to find an alternative method for budget preparation. A commission was appointed in 1915 for the purpose of recommending changes in the budgetary system. It recommended that the Executive be solely responsible for preparing the budget. That recommendation gained fruition when a Constitutional amendment incorporating it was adopted by the electorate on November 7, 1916. Nevertheless, the concept of the 1916 amendment remains basically intact. Although the Court of Appeals did not specifically address the separation of powers doctrine in the Foster Children Case, the Court pointed out that the preparation of the budget bill was completely within the discretion of the Governor, and any interference with his duty conflicted with the Maryland Constitution. The adoption by the voters of the amendment to the State Constitution Art. Ill, § 52 (11) and (12) placed a restriction on the Governor’s theretofore absolute discretion. That restriction is not, however, applicable to this appeal, so we shall not dwell upon the subject.

Patently, no State program can operate without funds. The funds must be included in the Governor’s budget and approved by the Legislature. Without that joint approval, no State funds may be expended by any department of the State government.

What the juvenile court order in the instant case did was to invade the Executive department by directing the Secretary of DHMH to pay out monies for a purpose not funded by the Legislature nor requested by the Executive. Furthermore, the court intruded on the Legislative Branch by directing the funding of Linda’s private hospital confinement.

Thus, the juvenile court committed a "double play,” by impinging upon the powers of the Executive and the Legislative Branches. The "double play,” however, is a "double error.” The order directing the infringement is null and void inasmuch as the court was without the authority to enter it.

The order of the Circuit Court for Prince George’s County (sitting as a Juvenile Court) is reversed.

Costs to be paid by appellees.

      . The evidence concerning Linda’s parents’ ability to pay was entirely implied. There was no direct evidence of their financial inability to pay for Linda’s care at Taylor Manor. Notwithstanding Courts Art. § 3-801 (e) and § 3-819 (d), the trial court and the parties seem to have taken for granted that Linda fell within the definition of a child in need of assistance, and that the petitioner established that fact by a preponderance of the evidence.
      On oral argument, the State acknowledged its oversight at the trial level. The failure of the record to disclose that Linda G. is a CINA raises a serious question of whether the appeal is properly before us. Nevertheless, in view of the fact that all parties and the trial court apparently “assumed” that Linda G. fell within the ambit of a CINA and further seemingly “assumed” her parents were "unable” to provide the necessary medical care because their insurance "ran-out,” we shall also make, for the purpose of this appeal, that assumption.
      Courts Art. § 3-801 (e) provides:
      “(e) 'Child in need of assistance’ is a child who requires the assistance of the court because
      (1) He is mentally handicapped or is not receiving ordinary and proper care and attention, and
      (2) His parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and his problems provided, however, a child shall not be deemed to be in need of assistance for the sole reason he is being furnished nonmedical remedial care and treatment recognized by State law.”
      Section 3-819 (d) states: "In all other cases [including a CINA adjudication] the allegations must be proved by a preponderance of the evidence.”
      There was, however, testimony that the parents, before Linda’s commitment to Taylor Manor, attempted to have her placed in Crownsville State Hospital and various private facilities, but that effort was rebuffed because no space was available. Spring Grove State Hospital did accept Linda on the basis of the statements of two physicians. See Md. Ann. Code art. 59, § 12 (b). Over the objection of her parents, she was discharged a few weeks later after completion of commitment hearings.
      By the time the case went to hearing on the CINA petition, space in an appropriate State facility became available. The question then arose as to the deleterious effect, if any, that moving Linda from Taylor Manor to a State operated mental hospital would have on the child.

      . Throughout this opinion, we shall refer to the appellant as either "the appellant” or "DHMH.” By Laws 1976, ch. 746, there was created within the DHMH a separate agency known as Mental Hygiene Administration. See also Md. Ann. Code art. 59, § 4.

      . The record indicates that Mr. and Mrs. G. had been receiving some financial aid in the form of "hospital 1 educational] instructions” from Prince George’s County Board of Education.

      . Md. Cts. & Jud. Proc. (1980 Repl. Vol.) Code Ann. § 3-810 (a), § 3-812 (a).

      . The issues as raised by DHMH were:
      "I. THE JUVENILE COURT EXCEEDED ITS STATUTORY AUTHORITY UNDER THE JUVENILE CAUSES ACT.
      A. Under The Juvenile Causes Act A Juvenile Court May Commit A Child To The Care And Custody Of The Department Of Health And Mental Hygiene, But The Court Is Not Empowered To Order A Private Psychiatric Hospital Placement At The Health Department’s Expense.
      B. The Need For Equitable And Effective Allocation Of Finite State Funds Supports A Finding That The Lower Court Exceeded Its Authority.
      II. THE LOWER COURT’S ORDER VIOLATES THE SEPARATION OF POWERS CLAUSE OF THE MARYLAND CONSTITUTION’S DECLARATION OF RIGHTS.
      A. The Lower Court Is Constitutionally Without Authority To Interfere With The Lawful Exercise Of Administrative Discretion.
      B. Funding Levels For State Agencies Are Determined By The Governor, And The Court Has No Authority To Control His Discretion.
      III. THERE IS NO EVIDENCE TO SUPPORT THE LOWER COURT’S FINDING THAT THERE WERE NO AVAILABLE STATE FACILITIES FOR LINDA AS OF APRIL 5,1979 AND AS OF THE MARCH 5th ORDER.
      A. The Muncie Center Program Was And Continues To Be An Available Appropriate Treatment Center For Linda.
      B. There Is No Evidence To Support The Lower Court’s Finding That There Were No Available State Facilities As of April 5, 1979.
      1. The lower court erroneously relied upon the IAC Meeting to support its finding that there were no available State facilities as of April 5, 1979.
      2. The fact that the Muncie Center is not within Linda’s catchment area will not support the court’s finding that there was no available State facility as of April 5, 1979.
      IV. THE PRINCE GEORGE’S COUNTY BOARD OF EDUCATION BEARS PARTIAL FINANCIAL RESPONSIBILITY FOR THE PLACEMENT OF HANDICAPPED STUDENTS IN RESIDENTIAL PROGRAMS IF SUCH PLACEMENTS ARE A NECESSARY COMPONENT OF THE STUDENT’S EDUCATIONAL PROGRAM.
      A. Where A Private Residential Program Is Necessary To Provide A Handicapped Child With A Special Education, Federal Law Requires That State Educational Agencies Assume Financial Responsibility For The Placement.
      B. Under Maryland Law, Local Education Bears Partial Financial Responsibility For Linda’s Residential Placement If Such Placement Is A Necessary Component Of Her Educational Program.

        V. UNDER ARTICLE VIII, SECTION 3 OF THE MARYLAND CONSTITUTION, THE BOARD OF EDUCATION MAY PROPERLY BE HELD RESPONSIBLE FOR PLACEMENT OF LINDA AT TAYLOR MANOR.
      VI. WHERE LOCAL EDUCATION REPEATEDLY ABDICATES ITS RESPONSIBILITIES, PARENTAL ENROLLMENT OF THE CHILD AT TAYLOR MANOR DOES NOT CONSTITUTE AN ASSUMPTION OF FINANCIAL RESPONSIBILITIES FOR THE COSTS OF SUCH PLACEMENT.
      VII. WHERE THE RESPONDENT IN JUVENILE PROCEEDINGS IS REPRESENTED BY A COURT-APPOINTED JUDICARE ATTORNEY, COUNSEL FEES SHOULD BE PAID BY THE JUDICARE PROGRAM AND NOT BY THE HEALTH DEPARTMENT.”

      . Not raised by the parties nor decided by us is the sublingual question of whether a judge of the juvenile court, or any court for that matter, has the power to commit a person to a private hospital, but see Courts art. § 3-820 (b) (2).

      . Section 3-804 (a) provides that "[t]he court [the circuit court of a county, the district court of Montgomery County or Baltimore City sitting as a juvenile court] has exclusive original jurisdiction over a child alleged to be delinquent, in need of supervision, or in need of assistance.” The petitioning process is set forth in section 8-310. The section states: "Any person or agency having knowledge of facts which may cause a person to be subject to the jurisdiction of the court may file a complaint....”
      Section 3-812 (a) instructs that the petition is to allege that "a child is either delinquent, or in need of assistance, or in need of supervision.... If it alleges that the child is in need of assistance ..., the petition shall set forth in clear and simple language the alleged facts supporting that allegation.”

      . Recently, the United States District Court of Maryland, in Johnson v. Solomon, 484 F. Supp. 278, 288 (D.C. Md. 1979), held that the commitment standards (or lack thereof) in section 3-820 (b) (to paraphrase, the best interests of the child) were unconstitutionally vague and "directfed] that standards be adopted which satisfy constitutional prerequisites.” In apparent response to that judicial mandate, the Maryland Legislature, by Laws 1980, ch. 697, enacted the following amendments to section 3-820, effective July 1, 1980:
      "(f) The court may not commit a child to the custody of the Department of Health and Mental Hygiene for inpatient care and treatment in a State mental hospital unless the court finds on the record based upon clear and convincing evidence that:
      (1) The child has a mental disorder;
      (2) The child needs inpatient medical care or treatment for the protection of himself or others;
      (3) The child is unable or unwilling to be voluntarily admitted to such facility; and
      (4) There is no less restrictive form of intervention available which is consistent with the child’s condition and welfare.”
      The effect of the above amendment on the case at bar is nil. Also effective on July 1, 1980, was amended Md. Rule 915 (c) which was approved by the Maryland Court of Appeals in response to Johnson. Rule 915 (c) echoes the above amendment to section 3-820.

      . For discussion on the Governor’s role in preparation of the budget and the doctrine of the separation of powers see pp. 16 et seq.

      . The record reveals that the appellee effectively argued that the appellant should have available purchase of care funds to expend upon Linda’s care at Taylor Manor and if not, Md. Ann. Code art. 43, § IF (e) enabled the Secretary of DHMH to reassign available funds from one department to another department which required such funds. During the March 1980 hearing, however, George Warner, an official in DHMH, testified that DHMH did not have purchase of care funds "in which they are able to support or continue a placement outside of one of their own facilities.” That testimony was unrebutted.

      . There are, of course, 24 such courts, i.e., one for each county and one for Baltimore City.

      . If each of the 24 juvenile courts were to place a CINA in a private hospital and then direct the Secretary of DHMH to pay from his funds the necessary fees, the effect on the DHMH budget would be catastrophic. In the instant case, the Taylor Manor charges are $3,100 per month, or $37,200 per year. If all 24 courts did the same thing, the charges paid by DHMH would escalate to $892,800 per year. Should each of the courts order more than one such commitment, the sum might well reach astronomical figures.

      . The Court of Appeals in In Re Appeal No. 653, supra, declined to discuss this constitutional principle. We find it necessary, however, if not compelling, to address the implications of the juvenile court’s order on the interrelationship of the three branches of government — Executive, Legislative, and Judicial.

      . "The doctrine of the separation of powers,” Mr. Justice Brandéis said in dissenting in Myers v. United States, 272 U.S. 52, 293, 47 S. Ct. 21, 85, 71 L. Ed. 160, 242 (1926), "was adopted ... not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Mr. Justice Brandéis was speaking in Myers of the doctrine adopted by the Convention of 1787, relating to the Federal Constitution. His observations apply, with equal effect, to Maryland and its tri-departmental government.

      . Md. Constitution Article III, § 52 (3).

      . Md. Ann. Code art. 41, § 206 (g) (1978 Repl. Vol.) mandates that the Secretary of DHMH "be responsible for the budget of his office and for the budgets of the departments and other agencies within the jurisdiction of the Department of Health and Mental Hygiene.” Obviously, the Secretary must obtain funding through the budget prepared and submitted by the Governor.

      . The Legislature failed to pass a Supplementary Appropriations Bill which would have appropriated the additional funds needed to equalize the two rates. See Md. Const, art. Ill, 8 52 (8).

      . See 28 Md. L. Rev. 395 (1968).

      . The amendment has undergone changes at the subsequent elections of November 2, 1948; November 4, 1952; November 6, 1956; November 3, 1964; November 8, 1966; November 3, 1970; November 7, 1972; November 5, 1974; and obviously in response to Md. Act. For Foster Children, Inc. v. State, supra, on November 7, 1978.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    ALFRED DOVE, JR. v. STATE OF MARYLAND
    [No. 457,
    September Term, 1980.]

      Decided December 16, 1980.

      The cause was argued before Gilbert, C. J., and Melvin and Wilner, JJ.

      Clarence W. Sharp, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Stephen Savage, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant was convicted by a jury in the Circuit Court for Montgomery County of second degree murder and use of a handgun in the commission of a felony, for which he was given prison sentences totaling 45 years. In this appeal, he makes the following arguments:

"I. The evidence presented was not sufficient to support Appellant’s convictions of second degree murder and use of a handgun in the commission of a felony.
II. The conclusions of the ballistics expert, William Welch, were not admissible without demonstrating the comparisons which led him to his conclusions and without conducting chemical tests for any changes in the bullet.
III. The State failed to establish a proper chain of custody of the coat allegedly worn by the victim to establish the distance of the firing based on burn marks.
IV. The trial court erred in failing to instruct the jury that (1) Appellant should be found not guilty if the State failed to sustain its burden of proof beyond a reasonable doubt, and (2) the burden was on the State to prove beyond a reasonable doubt that the circumstances were inconsistent with or such as to exclude every reasonable hypothesis or theory of innocence.
V. The verdict of the jury was unduly influenced and coerced by the trial court’s advice to them at 11:00 p.m. that they would be kept overnight if a verdict was not reached within fifteen minutes and in responding to the single juror’s question concerning a new trial if the jury was deadlocked.
VI. The trial court erred in compelling the Appellant to submit to having his appearance and hairstyle altered before trial.”

We have examined the record carefully and find that none of these contentions have any merit. Indeed, except for the last point raised, none require extended discussion. We find, with respect to the first five issues:

(1) Although much of the evidence was of a circumstantial nature, it was clearly sufficient to permit a rational jury to conclude, beyond a reasonable doubt, that at some point between 5:30 and 6:00 p.m. on March 7, 1979, appellant unlawfully shot and killed Elizabeth Hakala with a .38 caliber revolver as she walked along Howard Chapel Road, and that the shooting, under the circumstances, constituted second degree murder. It therefore also constituted the unlawful use of a handgun in the commission of a felony.

The evidence showed that, at about 5:20 p.m., while proceeding home from a trip to Frederick, appellant accidentally drove the car he was operating off the road. Appellant abandoned, the vehicle and ventured off on foot, a fair inference being that he took with him a handgun that had been in the car. This much was established from the testimony of his companion and passenger, Barbara Johnson. Shortly thereafter, a dark green 1969 Pontiac Catalina station wagon was stolen from in front of a carry-out store located a mile and a half away, at the intersection of Routes 97 and 650. A man fitting appellant’s general description was seen at the store at that time.

The killing took place about 8 miles from the store — directly along Route 97. Before she died, the victim told the police that a black male (appellant being a black male) pulled up in a large dark car and told her to get in, that she refused, and that he then shot her and drove away. Later that evening, at about 10:37 p.m., Officer Robert Brown, of the Frederick Police Department, spotted the stolen station wagon and began to follow it. After a while, the driver of the wagon increased his speed, in an apparent attempt to escape from Brown, but he was apprehended after he collided with another vehicle. The driver turned out to be appellant, and in the car was a .38 caliber handgun with one spent casing. Ballistics tests revealed that the bullet that killed Mrs. Hakala was fired from that weapon.

That was enough to support the convictions. See Metz v. State, 9 Md. App. 15 (1970).

(2) The complaint made here to the testimony of Sergeant Welch — that he failed to conduct any test to determine whether the bullet recovered from the victim’s body had been chemically changed as the result of its contact with her body fluids — was not raised below and we shall therefore not consider it on appeal. Maryland Rule 1085. We have, in any event, read Sergeant Welch’s testimony in its entirety, and find no reversible error in its admission.

(3) The State did establish a sufficient "chain of custody” with respect to the victim’s coat. Appellant’s argument to the contrary is absolutely groundless.

(4) Appellant complains of two alleged errors in the jury instructions, both being errors of omission rather than commission. In neither case did he take any exception to the court’s charge or request additional or clarifying instructions. In short, he failed to bring his belated complaints to the attention of the trial court, when effective relief could have been granted; and he offers no excuse for this failure. See Brown v. State, 14 Md. App. 415, cert. den., 265 Md. 736 (1972).

The court very clearly and adequately explained to the jury that appellant was presumed to be innocent and that it was incumbent upon the State to prove him guilty — to prove each and every element of the crime, including his criminal agency — beyond a reasonable doubt. Unlike the situation in State v. Hutchinson, 287 Md. 198 (1980), upon which he relies, there was no confusion, or serious potential for confusion, in these instructions.

In Hutchinson the jury could reasonably have interpreted what the court said as not allowing for a verdict of acquittal but in effect requiring a conviction. Both this Court and the Court of Appeals concluded that such a possibility was real enough and serious enough to require that the issue be addressed, even though no exception was taken below. We do not, read Hutchinson as flatly requiring an affirmative instruction that the jury must return a verdict of not guilty if the State fails to sustain its burden of proof where such a requirement is clearly implicit from other instructions given. Hutchinson merely held that instructions which implied the opposite — that the jury could not find the defendant not guilty — amounted to plain error under Maryland Rule 757h and should be addressed on appeal.

Appellant’s second complaint concerning the court’s instructions — that the State’s burden was to prove beyond a reasonable doubt that the circumstances shown were inconsistent with or excluded every reasonable hypothesis of innocence — is answered in full by Metz, supra. We made clear there that the burden with respect to circumstantial evidence was no different than with respect to direct evidence, that "the test for sufficiency is the same whether the evidence be direct, circumstantial, or provided by rational inferences therefrom.” 9 Md. App. at 23. Upon the doctrine which we announced and applied in Metz, it is clear that the instruction which appellant says should have been given despite his failure to request it would have been an incorrect one. It therefore would not amount even to error, much less plain error, to omit such an instruction.

(5) The record lends no support whatever to appellant’s assertion that the court unduly influenced the jury’s verdict. The court merely asked whether the jury desired to deliberate a little longer or retire for the evening, to which no objection was made. Nor did appellant object when the court, quite properly, declined to answer a juror’s question as to what would happen if the jury deadlocked.

The sixth complaint requires some elaboration. In addition to the charges emanating from the shooting of Mrs. Hakala, appellant was also charged, in a separate indictment (No. 22391), with the rapé and shooting of another person later in the evening of March 7, 1979. Those charges were tried separately, but certain pretrial motions were filed that affected both cases. One of these was a motion by the State to compel appellant to restore his tonsorial appearance to what it was at the time of his arrest. Specifically, it was alleged (and, at a pretrial evidentiary hearing held on November 16,1979, adequately established) that, at the time of his arrest in March, appellant had a short Afro bush — hair length of a half-inch to an inch — and a goatee, but that, in the intervening months, he had (1) allowed his scalp hair to grow to a much larger Afro of three to four inches, (2) shaved his goatee, and (3) allowed his mustache to grow larger.

The State, anxious to conduct a line-up prior to trial, contended that appellant’s "changed appearance will unfairly affect the ability of any witness to make a pre-trial identification in the line-up procedure.” The court agreed, and, at the conclusion of that phase of the pretrial hearing, announced that it would sign an order requiring appellant (1) to get a haircut and mustache trim and thus restore his scalp and lip hair to the length and style existing at the time of his arrest, and (2) to do the best he could to grow a beard. It directed the State to prepare and submit a specific order.

The docket shows that such an order was signed on November 19, 1979, as paper No. 129, although neither the original order nor a copy of it is included in the record before us. The docket entry is quite detailed, however, and describes the order thusly:

"Order of Court (Fairbanks, J.) that the Defendant be compelled and ordered to refrain from personally cutting or shaving any head, scalp, mustche | sic] or chin hair from this date or until the conclusion of the trial or trials in Criminal numbers 22391 and 22586 which are set for December 3 and 27, 1979 respectively and that the Defendant be compelled to refrain in all respects from personally changing or altering the style of his head, facial or chin hair and that the Defendant allow his chin hair to grow, unshaved, until the conclusion of the December 27, 1979 trial in Criminal 22586 and that the Defendant only permit and allow an authorized barber, employed by or at the direction of the Maryland Department of Corrections or the Montgomery County Detention Center to shave, cut or trim the head, facial and chin hair of the Defendant at such time and place, under the supervision of Detective Bernard Forsythe of the Montgomery County, Maryland Police Department, Crimes Against Persons Division, and that once shaven and trimmed by said authorized barber and under the supervision of Detective Bernard Forsythe, the Defendant refrain from further cutting, shaving, trimming or changing his appearance with respect to his facial and scalp hair until the conclusion of all pre-trial identification proceedings and trial in the above captioned cases, filed in Criminal 22391.”

The effect of this order, as indicated by the docket entry, extended beyond the line-up desired by the State, but included the trials as well. Although the record does not indicate one way or the other whether the order was implemented, we shall assume that it was, and that appellant’s tonsorial features were in fact changed (or restored) in accordance with it prior to trial.

With respect to this proceeding, appellant was identified in court, at trial, by Miss Johnson (his companion on the trip to and from Frederick earlier in the day) and by several of the police officers who arrested him in Frederick later that night. No objection was made to any of these identifications, and there is no indication in the record that they were in any way facilitated by the forced restoration of appellant’s facial appearance. Nor is there any suggestion that the in-court identifications were influenced by any pretrial line-up confrontations, or even that the identifying witnesses had attended such a line-up. Nevertheless, because they did make an in-court identification, we cannot presume that the order (or its implementation) was entirely without effect — in other words, if erroneous, that the error was harmless beyond a reasonable doubt. We therefore must address the issue.

Addressing it, however, we find no merit in it. As we pointed out in Doye v. State, 16 Md. App. 511, 524, cert. den., 268 Md. 747 (1973), the privilege against self-incrimination, which is the privilege asserted here, "has evolved to protect only communicative or testimonial statements.” It does not serve to exclude the defendant’s body as evidence. Holt v. United States, 218 U.S. 245 (1910). Upon this premise, criminal defendants have been required to exhibit, or refrain from altering or concealing, a wide variety of identifying characteristics, ranging from voice, to blood, to handwriting, to limbs, or other body parts.

This has also been extended to facial hair. Certainly, requiring a defendant to get a haircut or to shave a mustache or grow a beard is no more intrusive than requiring him to give up some blood, or ungergo skin scrapings, or to disrobe; and such orders have been sustained wherever challenged. See People v. Strauss, 22 N.Y.S.2d 155 (City Ct. 1940); People v. Vega, 370 N.Y.S.2d 429 (Sup. Ct. 1975), rev’d on other grounds 379 N.Y.S.2d 419 (App. Div. 1976); People v. Delgado, 412 N.Y.S.2d 254 (Sup. Ct. 1978); Ross v. State, 182 N.E. 865 (Ind. 1932). Cf. Smith v. United States, 187 F.2d 192 (D.C. Cir. 1950), cert. den., 341 U.S. 927 (1951). Delgado, indeed, sustained an order compelling a defendant to shave, against attack under both the Fourth and Fifth Amendments. See also Smith v. State, 4 Md. App. 146 (1968), where we found no prejudicial error in requiring the defendant to attend trial with shaggy, unkempt hair in the face of his desire to get a haircut.

Judgments affirmed; appellant to pay the costs.

      . Trial in No. 22391 (the rape and other shooting) was scheduled to begin December 3, 1979 — less than three weeks hence.


author: Mason, J.,

text:
    MAE H. HILL v. THEODORE R. HILL, JR.
    [No. 1636,
    September Term, 1979.)

      Decided January 7, 1981.

      The cause was argued before Morton and Mason, JJ., and E. Mackall Ciiilds, Chief Judge of the Fifth Judicial Circuit, specially assigned.

      Joel Marc Abramson, with whom were Talkin & Abramson on the brief, for appellant.

      Stephen N. Goldberg, with whom was Jerome F. Cohn on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

In this case the principal issue we are asked to decide is whether military retirement pay is "marital property” subject to equitable distribution under subtitle 6A of title 3 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland (Cum. Supp. 1980).

Mae H. Hill, appellant and cross-appellee, was granted an absolute divorce from Theodore R. Hill, Jr., appellee and cross-appellant, in the Circuit Court for Anne Arundel County. In addition she was awarded alimony, counsel fees, and a monetary award pursuant to subtitle 3-6A-05 (b). The husband who served twenty-seven years in the United States Army until he retired in 1972 receives military retirement pay and veteran’s disability pension. During seventeen years of his service in the military he was married to appellant and cross-appellee.

§ 3-6A-01 (el:
(e) Marital property. — "Marital property” is all property, however titled, acquired by either or both spouses during their marriage. It does not include property acquired prior to the marriage, property acquired by inheritance or gift from a third party, or property excluded by valid agreement or property directly traceable to any of these sources.
§ 3-6A-05 (b):
(b) The court shall determine the value of all marital property. After making the determination, the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.

At the trial below the chancellor refused to permit an economist called by the wife as an expert witness to testify regarding the present value of the husband’s military benefits on the basis "that the pension is not subject to the provisions of the Marital Act. ...” A proffer, however, of the witness’ testimony indicated that based on the husband’s life expectancy of 19.2 years the present value of his yearly United States Army pension of $8,643.64 was not less than $130,221.00, nor more than $142,803.00. Both parties appeal from the judgment of the lower court.

The wife’s sole argument on appeal is that "the chancellor erred by excluding appellee’s military retirement benefits and the value thereof in his determination of what property qualified as marital property.” Stated another way, the wife contends that the husband’s military retirement benefits were an asset of the marriage and should have been included in the computation of the monetary award made in her favor.

Although the question of whether military retirement pay is "marital property” subject to equitable distribution between the parties upon divorce is one of first impression in this State, other jurisdictions have wrestled with this issue and have reached conflicting results. It appears to be the general rule in community property states that military retirement pay is community property subject to division upon divorce. See Luna v. Luna, 608 P.2d 57 (Ariz. App. 1980); Czarnecki v. Czarnecki, 123 Ariz. 466, 600 P.2d 1098 (1979); Gorman v. Gorman, 90 Cal. App. 3d 454, 153 Cal. Rptr. 479 (1979); In re Marriage of Fithian, 10 Cal. 3d 592, 517 P.2d 449, 111 Cal. Rptr. 369 (1974), cert. den., 419 U.S. 825, reh. den., 419 U.S. 1060 (1975); Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1973); Stephens v. Stephens, 595 P.2d 1196 (N. M. 1979); Coote v. Coote, 592 S.W.2d 52 (Tex. Civ. App. — Fort Worth, 1979); Payne v. Payne, 82 Wash. 2d 573, 512 P.2d 736 (1973). The most comprehensive and widely cited case in support of this rule is In re Marriage of Fithian, 10 Cal. 3d 592, 517 P.2d 449, 111 Cal. Rptr. 369 (1974), cert. den., 419 U.S. 825, reh. den.,. 419 U.S. 1060 (1975). In that case the Supreme Court of California in holding that federal military retirement pay was properly the subject of California community property law stated:

The law is settled in California that retirement benefits which flow from the employment relationship, to the extent they have vested, are community property subject to equal division between the spouses in the event the marriage is dissolved. Underlying the community treatment of retirement benefits is the concept that they do not derive from the beneficence of the employer, but are properly part of the consideration earned by the employee. Thus whether an employee is required to make contributions to the retirement fund is irrelevant to the ultimate characterization of the benefits as community property. Furthermore, the principle that retirement benefits are community property has been held to apply whether the source of the retirement fund lies in a state, federal, military, or private employment relationship. (Citations omitted).
The conclusion follows that husband’s federal military retirement pay must be considered community property in accordance with established principles of California law. Although the retirement fund was noncontributory, husband’s rights to the benefits vested during marriage and constituted an integral part of his compensation for service in the military.

Id. at 451.

Apart from the foregoing judicial declarations on tangential issues, military retirement pay must be realistically viewed as compensation for past, not present, services..Congress’ purpose in creating the retirement pay system was to enhance the morale of the serviceman and to encourage him to remain in the military, and not to compensate him for his limited responsibility to the government after his retirement. Indeed, the amount of retirement pay a serviceman receives bears no relation to any continuing duties after retirement, but is calculated solely on the basis of the number of years served on active duty and the rank attained prior to retirement. (10 U.S.C. § 6323 (e)). Moreover, should the serviceman actually be recalled to active duty, he is not only additionally compensated according to the active duty pay scale, but his rate of retirement pay is also increased thereafter. (10 U.S.C. § 1402). The conclusion is inescapable that retirement pay is awarded in return for services previously rendered and therefore is divisible as community property to the extent the serviceman was married while on active duty.

Id. at 456-457.

For cases from noncommunity property states which rely on Fithian in holding that military retirement pay and disability benefits are assets of the marriage, divisible upon divorce, see In re Marriage of Musser, 70 Ill. App. 2d 706, 388 N.E.2d 1289 (1979); In re Marriage of Schissel, 292 N.W.2d 421 (Iowa, 1980); Chisnell v. Chisnell, 82 Mich. App. 699, 267 N.W.2d 155 (1978); In re Marriage of Miller, 609 P.2d 1185 (Mont. 1980), petition for cert. filed, 49 U.S.L.W. 3273 (U.S. Oct. 14, 1980) (No. 80-291); Kruger v. Kruger, 139 N.J. Super. 413, 354 A.2d 340 (1976); aff'd, 73 N.J. 464, 375 A.2d 659 (1977).

Contrary to Fithian and its progeny, several other jurisdictions have held that military retirement pay is equivalent to wages and is not property or an asset of the marriage subject to distribution upon divorce. The leading case espousing this theory is In re Marriage of Ellis, 538 P.2d 1347 (Colo. App. 1975). In that case, the wife in reliance on Fithian and other authorities from community property states appealed from a determination of the lower court that retirement pay was not a vested property right subject to division upon divorce, but income of the husband. The Colorado Court of Appeals, in affirming the lower court, held:

We hold that the husband’s army retirement pension and the future retired pay to be received thereunder do not constitute "property” and are, therefore, not subject to division as such under § 14-10-113, C.R.S. 1973. It is a resource of the husband in the nature of income to be received in the future, to be considered in fixing the amount of maintenance and child support which the husband is able to pay as related to the needs of the wife and children, §§ 14-10-114 and 115, C.R.S. 1973, and is to be considered also as any other "economic circumstance” of the husband in determining a just division of the marital property.

Id. at 1350.

The rationale undergirding the Court’s holding was as follows:

Army retirement pay is something the soldier has earned, Berkey v. United States, 361 F.2d 983, 176 Ct. Cl. 1, and, because he is still subject to recall to active duty, Lemly v. United States, 75 F. Supp. 248, 109 Ct. Cl. 760, is still earning as a continuation of active duty pay on a reduced basis, Hostinsky v. United States, 292 F.2d 508, 154 Ct. Cl. 443. He has to serve at least 20 years to be eligible to retire, and can elect to retire at any time thereafter. 10 U.S.C. § 3911. This right to retirement pay can be said to have "vested” after 20 years, but he cannot start to draw it until he does retire and is still alive and, therefore, the right is subject to divestment on prior death or discharge. The amount of retired pay is wholly within the control of Congress, is presently based on rank and length of service at time of retirement, and the retired soldier can expect increases or reductions which may be legislated from time to time. See 10 U.S.C. § 1401 a, § 3961, and § 3991; 6 C.J.S. Army and Navy § 20 a (7).
The full amount of the retired pay is taxable income' under § 61 (a) (11) of the 1954 Internal Revenue Code. The soldier makes no contributions to any retirement fund, nor is there any such fund under current law. See 10 U.S.C. §§ 3911 and 3991.
Army retired pay is not a fixed or tangible asset. At no time has it any cash surrender, loan, redemption, or lump sum value. It is payable monthly, but terminates on death. . . . The right to the pension and the retired pay not yet due and payable cannot be assigned, sold, transferred, conveyed, or pledged.

Id. at 1349.

The Supreme Court of Colorado, in affirming the ruling of the Colorado Court of Appeals, said:

We hold, as did the court of appeals, that military retirement pay is not "property” under the dissolution of marriage act. Our reason is that it does not have any of the following elements: cash surrender value: loan value; redemption value; lump sum value; and value realizable after death.

Ellis v. Ellis, 552 P.2d 506, 507 (Colo. 1976). Accord, Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980); Fenney v. Fenney, 537 S.W.2d 367 (Ark. 1976); Hiscox v. Hiscox, 385 N.E.2d 1166 (Ind. 1979); Baker v. Baker, 421 A.2d 998 (N.H. 1980); Baker v. Baker, 546 P.2d 1325 (Okla. 1975).

As previously noted, courts in other jurisdictions are in disagreement on the issue of whether military retirement pay is income or a vested property right. The courts in community property states generally hold to the view that a retiree has "earned” his military retirement pay during the years of active duty in the armed forces, and that such pension should be treated as vested property susceptible to distribution between husband and wife upon divorce. On the other hand, courts holding that military retirement pay is income have analogized these payments to salary because the retiree remains a member of the armed forces and is subject to recall to active duty. Although, as we have stated, no Maryland case has ruled on this precise issue, the case of United States v. Williams, 279 Md. 673 (1977) lends strong support to the theory that military retirement pay is wages and not an asset of the marriage divisible upon divorce. In that case the following question of law, among others, was certified to the Court by the United States District Court for the District of Maryland:

"Is federal military retirement pay which is paid to retirees of the Armed Services of the United States of America, 'wages’ within the meaning of Annotated Code of Maryland, Commercial Law Article Section 15-601?”

In deciding this case in the affirmative, the Court of Appeals said:

Probably the most recent case holding that a pension paid to a retired member of the military services constitutes wages is Ables v. Abies, 540 S.W.2d 769 (Tex. Civ. App. — Waco 1976). While decided in a different context, whether the right to retirement pay earned during marriage constituted vested community property subject to division at time of divorce, the court accepted the husband’s contention that
. . . regular officers retire only from active duty and remain members of the military subject to continuing controls of the government which materially affect their right to pay after retirement.
Among those controls, he enumerated: recall to active duty, 10 U.S.C. § 8504; court-martial for offenses committed during retirement, 10 U.S.C. § 802, with consequent loss of pay and allowances, Hooper v. United States, 326 F.2d 982, cert. denied, 377 U.S. 977 (1964), and subjection to federal dual compensation act, 5 U.S.C. § 5532 b. This led the court in Abies to reach the conclusion that retirement pay is not a pension for past services, but "a current salary earned on a monthly basis,” 540 S.W.2d at 770. To the same effect is Lemly v. United States, 75 F. Supp. 248, 249 (1948). Compare the ultimate result reached in Abies, supra, with that reached in Ellis v. Ellis, Colo., 552 P.2d 506 (1976) (retirement pay is not a vested interest, subject to division as community property).

Id. at 677-678.

We conclude, therefore, that Williams’ retirement pay constitutes wages for purposes of attachment under Code § 15-602 of the Commercial Law Article, and is not included in certain rights exempt from execution under Code (1957, 1970 Repl. Vol.) Art. 73B, § 17, which relates exclusively to pensions paid by the State and its subdivisions.

Id. at 678.

Maryland is a common-law state and the decisions in community property jurisdictions have limited value and are not controlling here. Moreover, the statute, MD. CTS. & JUD. PROC. CODE ANN., § 3-6A-01 (e) does not define the term "property”; it merely states that "marital property is all property, however titled, acquired by either or both spouses during their marriage.” In view of the foregoing and after careful consideration of all of the contrasting views expressed in the previously cited cases from other jurisdictions, and in light of the persuasive value of the holding of the Court of Appeals in United States v. Williams, supra, we adopt the reasoning set forth in In re Marriage of Ellis, 538 P.2d 1347 (Colo. App. 1975) aff'd, 552 P.2d 506 (Colo. 1976) and conclude as a matter of state law that military retirement pay is income and not "marital property” subject to division upon divorce. We further conclude that military retirement pay is an economic resource and may be considered in fixing the amount of alimony and child support.

The husband also urges us to hold that the Fithian decision has been overruled by the Supreme Court in Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979). In that case the Supreme Court concluded, after reviewing the history, structure and specific provisions of the railroad retirement act, that the intent of Congress in providing retirement benefits was' clearly inconsistent with the division of these benefits upon dissolution of the marriage, and that the community property principles of the State of California must yield under the Supremacy Clause of the United States Constitution. Cases decided subsequent to Hisquierdo have reached different results on the question of whether federal law permits the division of military retirement benefits as property in state divorce proceedings.

In view of our resolution of this issue on the basis of Maryland law, we do not find it necessary to determine whether the treatment of military retirement pay as property subject to division upon dissolution of the marriage is precluded by virtue of the Supremacy Clause of the United States Constitution.

The husband in his cross-appeal contends: (1) That the chancellor erred in his award of alimony and counsel fees to the wife; (2) that the chancellor did not have authority to order the clerk of the court to enter a judgment for counsel fees and costs for the wife’s law firm; and (3) that the chancellor erred in his calculation of the monetary award.

As to contentions one and three, we find neither error nor an abuse of discretion by the chancellor. However, as to contention two, we find that the chancellor erred in directing the clerk of the court to enter a judgment for counsel fees and costs in favor of the wife’s law firm instead of making the award to the wife. The law firm was not a real party in interest to the action prosecuted. Maryland Rule 203. Therefore, it was error to enter a judgment in its favor. Accordingly, we remand the case to the lower court for the limited purpose of modifying its decree in accordance with this- opinion. J

Decree affirmed.

Case remanded for the limited purpose of modifying the decree in accordance with this opinion.

Costs to be divided equally between the parties.

      . The relevant provisions are:

      . The California Supreme Court in In re Marriage of Brown, 15 Cal. 3d 838, 544 P.2d 561, 126 Cal. Rptr. 633 (1976) held that pension rights, whether or not vested, represent a property interest, and to the extent that such rights derive from employment during coverture, they comprise a community asset subject to division in a dissolution proceeding.

      . In fact, the United States Supreme Court has granted certiorari in one such case. In McCarty v. McCarty, No. 1 Civil 45056, (Calif. Ct. App.), 1st App. Dist., Div. 4, filed Feb. 6, 1980, cert. granted, 49 U.S.L.W. 3280, (U.S. Oct. 21, 1980) (No. 80-5), certiorari was granted on the following issue:
      "Has system of military retirement benefits established by Congress preempted California from treating army retirement pay as community property divisible upon divorce?”
      See also Cose v. Cose, 592 P.2d 1230 (Alaska, 1979), petition for cert. filed, 48 U.S.L.W. 3721 (U.S. March 19. 1980) (No. 79-1469); In re Marriage of Miller, 609 P. 2d 1185 (Mont. 1980). petition for cert. filed, 49 U.S.L.W. 3273 (U.S. Oct. 14, 1980) (No. 80-291).

        . For cases filed after July 1, 1980, "The court may order that any amount awarded for attorney’s fees be paid directly to the attorney and may enter judgment in favor of the attorney, who may then enforce the order in his own name in accordance with the Maryland Rules.” MD. ANN. CODE, art. 16, § 3 (Cum. Supp. 1980). Here, the case was filed January 22,1979.


author: Liss, J.,

text:
    PRINCE GEORGE’S COUNTY, MARYLAND v. E. L. GARDNER, INC.
    [No. 385,
    September Term, 1980.]

      Decided January 7, 1981.

    The cause was argued before Gilbert, C. J., and Liss and Wilner, JJ.

      Steven M. Gilbert, Associate County Attorney for Prince George’s County, with whom were Robert B. Ostrom, County Attorney for Prince George’s County, and Michael O.

      Connaughton, Deputy County Attorney for Prince George’s County, on the brief, for appellant.

      Paul B. Rodbell, with whom were William V. Meyers and Meyers & Billingsley, P.A. on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This is an appeal by Prince George’s County, appellant, from a final order of the Circuit Court for Prince George’s County (Blackwell, J.) reversing and remanding a decision of the County Council of Prince George’s County sitting as the District Council for the Maryland-Washington Regional District in Prince George’s County. The case arose out of an application by the appellee, E. L. Gardner, Inc. (Gardner) for the grant of a special exception for the erection and use of a sand and gravel wet processing facility on property owned by Gardner, which Gardner has been operating as a non-conforming mining operation under the Prince George’s County Zoning Ordinance.

The appeal was filed in the Circuit Court for Prince George’s County from a decision of the District Council denying the special exception. The appeal to the Circuit Court was brought pursuant to Article 66D, Section 8-106 (e) of the Annotated Code of Maryland (1957, 1979 Repl. Vol.) and is governed by the provisions of Subtitle B, Chapter 1100, of the Maryland Rules of Procedure. See County Council v. Carl M. Freeman Associates, Inc., 281 Md. 70, 376 A.2d 860 (1977).

Appellee Gardner is in the business of preparing ready mix concrete. Gardner manufactures its product in Clinton, Maryland but mines sand and gravel from its surface mines in Brandywine. Thé sand and gravel operation in Brandywine is located on the property involved in this case. Gardner applied for a special exception in order to transfer the wet processing of sand and gravel from Clinton to Brandywine. Such a special exception is allowed under the Prince George’s Code, Division 36, Section 27-558.1 which is titled, "Sand and/or gravel wet processing.”

The subject property, consisting of approximately 449 acres, is located one half mile east of Brandywine Road, Maryland Route 381, to the north of Keys Road. The site is unequally divided on a north-south axis by a Pepeo right of way for power transmission lines. Approximately 330 acres lie to the west of the right of way and 120 acres to the east. Gardner proposed to place the wet processing facility in the smaller eastern section. The entire 449 plus or minus acre tract which is located in an O-S (open space) zone has been certified by Prince George’s County as a non-conforming use for the removal of sand and gravel. Gardner extracts these materials pursuant to a surface mining permit issued by the State of Maryland. The appellee had been engaged in mining the site prior to its first being zoned in December of 1966, and has continued to do so since the adoption of the original zoning scheme.

Gardner, in seeking its special exception, filed its application pursuant to the procedures set forth in Section 27-490, et seq., of the County Code. Prior to the date the application was brought to the District Council for its consideration, the Gardner application was submitted for a three step administrative review. In chronological order, the administrative review was as follows:

1. Review and report by the Technical Staff of the Planning Board which was then submitted to the Planning Board along with the staffs recommendation, Section 27-491.2 of the County Code;
2. The Planning Board while not required to hear the matter or make recommendations did so pursuant to the procedures followed for a Zoning Map Amendment, Sections 27-581 and 27-585 of the County Code. In this case the Planning Board adopted its Technical Staffs recommendation as per Section 27-581 (b);
3. The Zoning Hearing Examiner scheduled and conducted a public hearing on the application as per Sections 27-491 and 27-493, and then made a recommendation as per Section 27-565.

Upon submission of the administrative reports and recommendations to the District Council, the Council had before it the question of whether to grant or deny the application for a special exception under the standards and guidelines set forth in Sections 27-501 and 27-558.1 of the County Code. The District Council denied the application, and on appeal to the Circuit Court the presiding judge reversed the District Council and remanded the' case to the Council with instructions that the special exception be granted subject to the imposition by the Council of reasonable conditions to implement the use of the property. It is from that order that this appeal has been brought by Prince George’s County.

The issues to be decided by the appeal are as follows:

I. Whether the approval by the zoning authority of a separate special exception use authorized by the applicable zoning ordinance where a parcel of land is the subject of a lawful non-conforming use constitutes either an expansion or ¿n enlargement of that non-conforming use?

II. Whether the denial of a special exception by the District Council amounts to an arbitrary, capricious and illegal act where an applicant for the special exception establishes by clear and convincing evidence that the proposed use complies with the prescribed standards and requirements of the applicable zoning ordinance?

III. Whether the issue before the administrative body as to the granting or denial of the special exception was "fairly-debatable”?

I. and II.

The appellee in its application for a special exception sought authorization to conduct a sand and gravel wet processing operation on the subject property. The proposed use is in harmony with the purposes and intent of the Prince George’s County Zoning Ordinance in that sand and gravel wet processing has been legislatively predetermined to be a legitimate use of land in the O-S category subject to the requirements of applicable special exception provisions.

The Court of Appeals in Rockville Fuel & Feed Co. v. Board of Appeals, 257 Md. 183, 262 A.2d 499 (1970), set out the duty of an administrative agency in the consideration of an application for a special exception when it said:

In Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287 [96 A.2d 261 (1953)1 we went to some pains to stress that the special exception is a valid zoning mechanism that delegates to an administrative board a limited authority to permit enumerated uses which the legislative body has determined can, prima facie, properly be allowed in a specified use district, absent any fact or circumstance in a particular case which would change this presumptive finding. We said: "The duties given the Board are to judge whether the neighboring properties and the general neighborhood would be adversely affected, and whether the use, in the particular case, is in harmony with the general purpose and intent of the zoning plan.” [257 Md. at 188.1

The appellant contends that the proposed use of the appellee’s property in this case is an expansion, extension or enlargement of an existing non-conforming use and is, therefore, contrary to the purposes and requirements of the zoning ordinance. Appellee, on the other hand, urges that the special exception which it seeks in this case makes irrelevant the question whether the activity proposed is an extension, expansion or enlargement of the existing non-conforming use.

The facts are not in dispute: appellee’s property has been certified as a lawful non-conforming use under the provisions of the Prince George’s County Zoning Ordinance; appellee has the ongoing unrestricted legal right to extract sand and gravel from the entirety of its property as reflected in its use and occupancy permit as well as the zoning ordinance; appellant’s property contains extensive deposits of sand and gravel which the appellee is currently mining and plans to continue to mine until the subject deposits are exhausted.

We are aware that while judicial decisions are firm in the protection of vested rights, the courts and legislatures are wedded to the public policy decisions which have prompted the limitation of non-conforming uses and have generated plans.for the elimination of non-conforming uses. See 1 Anderson, American Law of Zoning Section 6.07 (1976,1979 Cum. Supp.)

A distinction is to be drawn between the enlargement or extension of non-conforming uses and an intensification of such lawful uses. An increase in floor space either arising from an addition to an existing building or in a separate building; an increase in the area of a lot used for non-conforming uses; or a change in business methods or the provision of new accessory facilities with the resulting extension of the use involved have all been held to be proposals for the enlargement of a non-conforming use. Conversely, an increase in the volume of an existing business is usually referred to as an intensification rather than an enlargement and such an intensification has been permitted under a valid non-conforming use. A distinction is sometimes made between extension and enlargement with the former referring to increased use of existing floor area within a building and the latter to the construction of a larger building. See 4 Williams, American Land Planning Law Sections 113.01 and 113.06 (1975, 1979 Cum. Supp.). Furthermore, an unlawful extension or enlargement of a non-conforming use may be effected by the addition of new equipment or facilities, or their enlargement. See Seekonk v. Anthony, 339 Mass. 49, 157 N.E.2d 651 (1959), where the right to maintain a non-conforming quarry did not include the right to expand the use by adding a non-conforming blacktop facility. Accord First Crestwood Corp. v. Building Inspector of Middleton, 326 N.E.2d 363 (1975, Mass. App.), where the addition of a stone crushing process to a non-conforming quarrying operation was held an unlawful enlargement. See also 1 Anderson, American Law of Zoning Section 6.44.

If the controversy here considered involved only the question whether the contemplated use of the land owned by the appellee amounted to an illegal enlargement or expansion of its non-conforming use of the premises, it would not present a difficult question to be decided. The problem in this case, however, is that the proposed use of the appellee’s property does not depend on the non-conforming use, but rather on the right to a special exception established by the Prince George’s County Zoning Ordinance.

The appellee’s property is classified in the O-S zone, the stated purposes of which are to provide for low density and low development intensity uses. The ordinance sets out a number of special exception uses which are by definition uses of extremely limited duration. These include temporary sawmills (subject to annual renewal); various types of shooting ranges (subject to annual renewal); and the specific use here involved, wet processing plants which are subject to a term of 20 years.

The record discloses that both the appellee’s expert land use planner and the technical staff of the Planning Commission of Prince George’s County stated that the proposed use was in accordance with and satisfied the technical requirements of the zoning ordinance and the guidelines and standards set out in that ordinance. In addition, the expert testimony indicated that the use would serve the public purpose contemplated by the creation of the special exception provision as well as serving the expressed public purpose of facilitation of the extraction of natural resources.

Under the circumstances revealed by the record, we agree with the appellee that the non-conforming use status of the appellee’s property is irrelevant in the determination of this controversy.

III.

The sole question to be answered in this appeal then is whether Judge Blackwell erred in concluding that based on the evidence before the District Council the record did not raise an issue before the administrative body which was "fairly debatable.”

Given the "legislative predetermination” that a special exception is "conditionally compatible,” it is the duty of the District Council to determine whether the special exception under review does meet the specified statutory requirements in that the use contemplated not adversely affect the neighboring properties and general neighborhood scheme and that the special exception be in harmony with the general purpose and intent of the zoning plans. See Creswell v. Baltimore Aviation Service, Inc., 257 Md. 712, 264 A.2d 838 (1970); Rockville Fuel & Feed Co. v. Board of Appeals, supra.

. .The Court of Appeals in Sembly v. County Board of Appeals, 269 Md. 177, 304 A.2d 814 (1973), stated the rule governing the judicial review of decisions granting or denying special exceptions as follows:

We have consistently held that on judicial review of decisions granting or denying special exceptions, the correct test to be applied is whether the issue before the administrative body is "fairly debatable”, that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions. If the questions are fairly debatable and the facts presented are sufficient to support the Board’s decision, it must be upheld, [citations omitted]. Hence, where we conclude that the issues are fairly debatable, we will not substitute our judgment for that of the administrative body, unless its action is shown to be arbitrary, capricious or illegal. [Citations omitted.] [269 Md. at 182-83.]

The task of the reviewing court is to examine any conclusion reached by the (administrative) agency, to see whether a reasoning mind could reasonably have reached the result the agency reached upon consideration of the . . . entire record. Cason v. Board of County Commissioners, 261 Md. 699, 707, 376 A.2d 661 (1971); Board of County Commissioners v. Oak Hill Farms, Inc., 232 Md. 274, 283, 192 A.2d 761 (1963).

Judge Blackwell in his memorandum opinion painstakingly reviewed the evidence in the record regarding the six conclusions reached by the District Council. Those conclusions were: (1) that based on the evidence submitted in support of and in opposition to the special exception sought that the applicant had failed to meet the requirements of Section 27-501 (2) of the County Code; (2) that the restriction suggested by the Technical Staff and Zoning Hearing Examiner that appellee’s ingress and egress to the property would be difficult to enforce; (3) that the noise generated and the water needed for the wet processing operation would adversely affect the neighborhood; (4) that the applicant failed to show it was entitled to a variance in complying with the requirements of Sections 27-358 (a) (1) and (3) of the Prince George’s County Code; (5) that to grant appellee’s special exception would be an "unwarranted extension and expansion” of the appellee’s non-conforming use; (6) and for other reasons apparent in the record.

The trial judge analyzed the evidence submitted by the appellee and by the several protestants and came to the conclusion that the evidence in the record failed to trigger the "fairly debatable” test. We agree.

The Court of Appeals in Turner v. Hammond, 270 Md. 41, 310 A.2d 543 (1973), considered the nature of the law governing special exceptions and stated it to be as follows:

Occasionally the bar and less often the bench lose sight of the concept that the conditional use or special exception, as it is generally called, is a part of the comprehensive zoning plan sharing the presumption that as such it is in the interest of the general welfare, and therefore, valid. [Citation omitted.] The special exception is a valid zoning mechanism that delegates to an administrative board a limited authority to permit enumerated uses the legislature has determined can be allowed, properly albeit prima facie, absent any fact or circumstance negating the presumption. [Citation omitted.] In Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287, 96 A.2d 261, 264 (1953), we said:
"... The duties given the Board are to judge whether the neighboring properties and the general neighborhood would be adversely affected, and whether the use in the particular case, is in harmony with the general purpose and intent of the zoning plan.”
While the applicant has the burden of adducing testimony which will show that his use meets the prescribed standards and requirements he does not have the burden of showing affirmatively that his proposed use accords with the general welfare. If he shows to the satisfaction of the Board that the proposed use would be conducted without real detriment to the neighborhood and would not actually adversely affect the public interest, he has met his burden. The extent of any harm or disturbance to the neighboring area and uses is, of course, material but if there is no probative evidence of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the functioning of the comprehensive plan, a denial of an application for a special exception is arbitrary, capricious and illegal. [270 Md. at 54-55.]

Our examination of the record convinces us that the applicant more than met its burden of producing probative and credible evidence on all the issues required to be proven, and that the evidence of the protestants was so vague and indefinite as to fail to raise fair debate in a reasoning mind. Therefore, we find that the action of the District Council, in refusing to grant the special exception was arbitrary, capricious, and illegal.

Judgment affírmed; costs to be paid by Prince George’s County.


author: Thompson, J.,

text:
    MAYOR AND CITY COUNCIL OF BALTIMORE v. ANTHONY ROSE et al.
    [No. 474,
    September Term, 1980.]

      Decided January 7, 1981.

      The cause was argued before Thompson, Lowe and Weant, JJ.

      William Hughes, Associate City Solicitor for Baltimore City, with whom were Benjamin L. Brown, City Solicitor for Baltimore City, and William R. Phelan, Jr., Assistant City Solicitor for Baltimore City, on the brief, for appellant.

      Robert K. Nead for appellee State Farm Mutual Automobile Insurance Company. Phillip M. Sutley for appellee Anthony Rose.
   Thompson, J.,

delivered the opinion of the Court.

The Mayor and City Council of Baltimore (the City), the appellant, appeals from a judgment, entered in the Superior Court of Baltimore City, declaring the City liable to two of the appellees, Anthony and Rebecca Rose, for uninsured motorist benefits and declaring State Farm Mutual Automobile Insurance Co. (State Farm), also an appellee, not liable to the Roses for such benefits.

The case was presented to Judge Martin B. Greenfeld upon stipulations of facts. On December 9, 1975, Mr. Rose, a Baltimore City firefighter, was seriously injured when a vehicle operated by Peter Young Wilkes collided with the fire truck upon which Rose was riding. The sole cause of the collision was the negligence of Wilkes; at the time of the accident neither Wilkes nor the vehicle which he was operating carried liability insurance. At the time of the accident, Rose had a liability insurance policy covering his personal vehicle with State Farm. As required by Maryland law, this policy included coverage for losses caused by an uninsured motorist. On September 22, 1978, the Roses filed an action for declaratory judgment against State Farm in the Superior Court of Baltimore City. The Roses sought a declaration that they were entitled to receive benefits, under the uninsured motorist provision of their policy with State Farm, for the injuries suffered by Rose in the collision. On September 25, 1979, State Farm filed a third party complaint aginst the City, claiming that the City, which is self-insured, was primarily liable inasmuch as Rose had been a passenger on the City’s truck at the time he was injured. Judge Greenfeld agreed with State Farm’s contention and declared that the City was primarily liable to the Roses for $20,000 in benefits, which is the minimum uninsured motorist coverage permitted under the statute. The parties had stipulated that Rose’s injuries exceeded $20,000; previously Rose had filed for and had been awarded special disability retirement benefits from the City in the amount of $9,429.46 per annum.

I

At the time of the accident, Md. Ann. Code, Art. 57, § 18 provided as follows:

"(a) No action shall be maintained and no claims shall be allowed against any municipal corporation or against any county or Baltimore City for unliquidated damages for any injury or damage to person or property unless within 180 days after the injury or damage was sustained, written notice setting forth the time, place or cause of the alleged damage, loss, injury or death shall be presented either in person or by registered mail by the claimant, his agent or attorney, or in the case of death, by his executor or administrator, to the county commissioners, county council, the corporate authorities of the municipal corporation or the city solicitor of Baltimore City, as the case may be. In Montgomery County and Howard County, written notice shall be presented to the county executive.
(b) Notwithstanding the provisions of (a) above, the court may, upon motion and for good cause shown, entertain the suit even though the required notice was not given, unless provided further the defendant can affirmatively show that its defense has been prejudiced thereby.”

The City contends that, because neither the Roses, who did not file an action against the City, nor State Farm, which was not sued by the Roses until nearly three years after the accident, gave the notice called for by the statute, it cannot be held liable. We do not agree. At the time of the collision, the City had elected to become self-insured, as permitted by Md. Transp. Code Ann. § 17-103, which provides in pertinent part:

"(a) Required form. — (1) Except as provided in paragraph (2) of this subsection, the form of security required under this subtitle is a vehicle liability insurance policy written by an insurer authorized to write these policies in this State.
(2) The Administration may accept another form of security in place of a vehicle liability insurance policy if it finds that the other form of security adequately provides the benefits required by subsection (b) of this section.
(b) Required minimum benefits — The security required under this subtitle shall provide for at least:
* * *
(4) The benefits required under Article 48A, § 541 of the Code as to required additional coverage.”

Md. Ann. Code, Art. 48A, § 541 (c) provides as follows:

"(c) Uninsured motorist coverage. — In addition to any other coverage required by this subtitle, every policy of motor vehicle liability insurance issued, sold, or delivered in this State after July 1, 1975 shall contain coverage, in at least the amounts required under Title 17 of the Transportation Article, for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle. The coverage required under this subsection (c) shall be in such form and subject to such conditions as may be approved by the Commissioner oflnsurance. Any provision in any policy of motor vehicle liability insurance issued after July 1, 1975, with respect to the coverage provided for damages sustained by the insured as a result of the operation of an uninsured motor vehicle, which commands or requires the submission of any dispute between the insured and the insurer to binding arbitration, is prohibited and shall be of no legal force or effect. In no case shall the uninsured motorist coverage be less than the coverage afforded a qualified person under Article 48A §§ 243H and 243-1. The coverage required under this subsection shall be primary to any right to recover from the Maryland Automobile Insurance Fund pursuant to § 243H of this article.”

Under the statute set forth above, the City, having elected to act as its own insurer, was required to assume the same responsibilities and provide the same minimum coverage as a private carrier. There is nothing in the statute which permits self-insured municipal corporations to impose additional conditions upon or to further limit the extent of the coverage which they provide. To allow the City to avoid liability because notice was not given would be to permit the City to provide insurance coverage which is not the equivalent of that which the statute requires a commercial carrier to provide.

Our decision is supported by Cotham and Maldonado v. Board, 260 Md. 556, 273 A.2d 115 (1971), where the Court recognized the impracticality of applying the notice requirement to facts similar to these. There, as in the case at bar, the claim made against the governmental unit was a third party claim; there also, as in the case at bar, the defendant and third party plaintiff was not himself sued until the time to give notice had expired. The Court stated:

"The claim of Dr. Maldonado is, therefore, an inchoate claim which does not ripen into being unless and until he pays Cotham. To hold that a person in his position is barred under this notice statute from recovery against the municipal corporation would be to place in the hands of the plaintiff a determination of whether the Defendant might be permitted to recover from the municipal corporation, because by manipulation of the time of filing suit and the speed with which the plaintiff then proceeded, the plaintiff could easily place the potential third-party plaintiff outside the statutory period. He has no knowledge of a claim until suit is filed....” Id. at 566-67.

II

As we noted above, because Rose’s injuries were disabling, he applied for and was awarded special disability retirement benefits from the City in the amount of $9,429.46 per year. The City contends that, because Rose is receiving retirement benefits from the City, he is barred from also recovering uninsured motorist benefits from the City. It claims support for this argument in Md. Ann. Code, Art. 48A, § 243-1 (b) (5) and in our opinion in Nooe v. City of Baltimore, 28 Md. App. 348, 345 A.2d 134 (1975), cert. denied, 276 Md. 748 (1976).

The authority which the City cites offers no support for its contentions. Section 243-1 (b) (5) permits the deduction from uninsured motorist benefits of "[a]ll amounts that the applicant has received, or ... is likely to receive, by reason of the accident out of which applicant’s claim arises, under or because of any workmen’s compensation law.” (emphasis added). In Nooe, we considered the workmen’s compensation statute, specifically Md. Ann. Code, Art. 101, § 33, and determined that the explicit language of that statute barred recovery of workmen’s compensation benefits by an employee who had received a pension which afforded benefits greater than those available through workmen’s compensation. Id. at 356. See also, Frank v. Baltimore County, 284 Md. 655, 399 A.2d 250 (1979). Neither Section 243-1 (b) (5) nor our opinion in Nooe has any applicability in the present situation, where the benefits received are paid by the Fire and Police Employees Retirement System of Baltimore City and not by workmen’s compensation, and where the benefits sought are payable under the uninsured motorist coverage which the City is required to provide. Had the legislature wished to permit the deduction from uninsured motorist benefits of payments made by the Retirement System, we believe that it would have done so. C£, Md. Ann. Code, Art. 48A, § 243-1 (d) ("¡notwithstanding the provisions of any workmen’s compensation or similar law... pursuant to any workmen’s compensation or similar law. .. .”) (emphasis added).

Where the statutory language is clear, we are required to follow it. As the Court of Appeals stated in the case of Pennsylvania National Mutual Casualty Insurance Co. v. Gartelman, 288 Md. 151, 416 A.2d 734 (1980):

"An additional rule of statutory construction applicable here is that in ascertaining and effectuating the actual intent of the Legislature, a court must read the language of the statute in context and in relation to all of its provisions. Where statutory language is plain and unambiguous, and expresses a definite meaning consonant with the statute’s purpose, courts must not insert or delete words to make a statute express an intention different from its clear meaning. Department of State Planning, 288 Md. at 15, 415 A.2d at 299. Moreover, Maryland’s uninsured motorist statute is remedial in nature and should be liberally construed in order to promote its purpose of recovery for innocent victims of motor vehicle accidents. State Farm, 277 Md. at 605, 356 A.2d at 562.” Id. at 159.

The language in the statute we here construe limits the deduction to amounts paid under a workmen’s compensation law. There is no provision for a deduction under a similar law; therefore the City’s argument is rejected.

Judgment afñrmed.

Appellant to pay the costs.

      . The vehicle was owned by Samuel Robert Wilkes of Columbus, Ohio. At the time, Ohio had no mandatory minimum auto insurance coverage law.

      . Rose elected not to receive workmen’s compensation benefits; rather he accepted benefits payable from the Fire and Police Retirement System of the City of Baltimore. See, Baltimore City Code, Art. 22, § 29 et seq.

      . This section is now found in Md. Cts. & Jud. Proc. Code Ann, § 5-306 (1980).