author: Menchine, J.,

text:
    ROBERT LEE GRAY v. STATE OF MARYLAND
    [No. 1277,
    September Term, 1976.]

      Decided July 8, 1977.

    The cause was argued before Gilbert, C. J., and Powers and Menchine, JJ.

      Geraldine Kenney Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, State’s Attorney for Prince George’s County, and Robert C. Bonsib, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

On October 22, 1976, Robert Lee Gray was convicted by a jury in the Circuit Court for Prince George’s County on charges of (a) robbery with a dangerous and deadly weapon and (b) carrying a deadly weapon openly with intent to injure another. He was sentenced to imprisonment for concurrent terms of twelve and three years respectively.

On September 21, 1976, Gray had filed a motion to dismiss the indictment against him upon grounds of double jeopardy. His motion alleged that the sua sponte declaration of a mistrial on August 25, 1975, during the course of an earlier trial for the offenses was not compelled by manifest necessity and constituted a bar to further prosecution.

On October 15, 1976, the trial judge conducted a hearing upon the motion to dismiss. At the conclusion of the hearing the trial judge declared: “I am going to examine the authorities and will take the matter under advisement.”

On October 22, 1976, prior to the commencement of the trial below, defense counsel asked the court to rule on the motion to dismiss for double jeopardy. The trial judge responded as follows: “I will keep that matter under advisement and rule at the conclusion of the case.” Trial then proceeded, with conviction and sentence resulting.

Appellant urges that the action of the trial judge in deferring decision upon the double jeopardy motion constituted reversible error. We agree.

No doubt remains that an immediate appeal lies from denial of a motion to dismiss grounded upon a claim of double jeopardy. Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974). In Taylor v. State, 22 Md. App. 370, 372, 323 A. 2d 648, 650 (1974), we said:

“The express message of the Court of Appeals in Neal is unmistakable. A denial of a motion to dismiss an indictment on the ground of double jeopardy is appealable immediately.”

Our language in Taylor, supra, a case involving alleged speedy trial rights — not double jeopardy — apparently has caused some misunderstanding among trial judges. We had said at 372-73 [650]:

“The underlying message of Neal is equally unmistakable, i.e., our decision in Neal v. State with respect to the holding that a denial of a motion to dismiss for lack of speedy trial is interlocutory and thus not immediately appealable is still viable.”

It shortly became apparent that what was believed to be a clarion call for pre-trial determination by trial judges confronted by a double jeopardy motion to dismiss, did not ring out loud and clear.

In Claybrooks v. State, 36 Md. App. 295, 374 A. 2d 365 (1977), we said at 301:

“Our observation in Taylor seems to have been misinterpreted by the trial judge in the instant case. We did not imply, suggest, nor hint that Md. Rule 725 d was to be used as an artifice to circumvent the holding of the Court of Appeals in Neal. Indeed, Rule 725 d is not a vehicle to thwart Neal and thus effectively erode its clear mandate. By the mere deferring of a ruling on a motion to dismiss grounded on former jeopardy, the constitutional barrier, erected by our founding fathers, would be no barrier at all. Rather, it would be relegated to the status of a high sounding phrase, devoid of substance and ‘signifying nothing.’ ”

We now reiterate the rule when, prior to a second trial, the trial court is confronted by a motion to dismiss the indictment upon the ground of double jeopardy:

The trial judge must rule upon the motion prior to the commencement of the second trial.

If the motion to dismiss is denied, an immediate appeal lies.

The reason why such a course must be followed is explicated with great clarity by the Supreme Court in the very recent case of Abney v. United States, 431 U. S. 651, 97 S. Ct. 2034, 52 L.Ed.2d 651, No. 75-6521, decided June 9, 1977, in the following language:

“Finally, the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment, as the Government suggests. However, this Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.
“ ‘The Constitution of the United States, in the Fifth Amendment, declares, “nor shall any person be subject [for the same offense] to be twice put in jeopardy of life or limb.” The prohibition is not against being twice punished, but against being twice put in jeopardy The ‘twice put in jeopardy’ language of the Constitution thus relates to a potential, i. e., the risk that an accused for a second time will be convicted of the ‘same offense’ for which he was initially tried.” Price v. Georgia, 398 U.S. 323, 326 (1970).
See also United States v. Jorn, 400 U.S. 470, 479 (1971); Green v. United States, 355 U.S. 184, 187-188 (1957); United States v. Ball, 163 U.S. 662, 669 (1896). Because of this focus on the ‘risk’ of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. Justice Black aptly described the purpose of the clause:
‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ Green, supra, at 187-188.
Accord, Breed v. Jones, 421 U.S. 519, 529-530 (1975); Serfass v. United States, 420 U.S. 377, 387-388 (1975); Jorn, supra, at 479. Obviously, these aspects of the guarantee’s protections would be lost if the accused were forced to ‘run the gauntlet’ a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.” (Footnotes omitted.)

It is true that in Claybrooks, supra, we affirmed the judgments of conviction even though the trial judge had reserved decision upon the double jeopardy issue until after the conviction of the accused. We stressed that we had done so under the doctrine of harmless error, Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967); Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976), saying at 301:

“We believe such error ordinarily to be reversible. We say ‘ordinarily’ because there is an exception. The exception arises when the motion is based on a claim that is patently frivolous. When that occurs, although there is error, it is not reversible, but harmless. To hold otherwise would permit any defendant, in any criminal cause, to move to dismiss on the grounds of double jeopardy, even though there is no basis, and when the motion is decided against him, to divest the trial court of jurisdiction by simply noting an appeal. Such a practice could be used to obtain a continuance, a severance of the case from that of another, and probably would cause an appellate logjam. The constitutional protection against double jeopardy should not be allowed to become a contrived pro forma dilatory plea.”

We now stress, however, that the decision whether such a claim is patently frivolous must be made by the appellate and not by the trial court. Our examination of the record shows that the motion is not patently frivolous.

We stress as well that a decision denying the claim of double jeopardy is immediately appealable if the accused elects to follow such a course, and that such an election by the accused would divest the trial court of jurisdiction to proceed with the substantive trial. Unless such an election is made upon the record prior to the commencement of the substantive trial, however, the right to immediate appeal shall be deemed to have been waived. In the latter case, of course, appellate review of the issue may be had if conviction results.

Because the judgments must be vacated and the case remanded for a decision upon the double jeopardy issue, we do not reach the issues raised with respect to the substantive trial. Our holding makes that trial a nullity.

Judgments vacated and case remanded for decision upon the issue of double jeopardy, either upon the record made below upon that issue or after a new hearing thereon, at the option of the appellant.

Costs to be paid by Prince George's County.

      . We shahnot consider the merits of the claim of double jeopardy in this appeal, believing that to do so might lessen the impact of our decision that the trial court nvust rule upon such a claim prior to trial.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    RUTH ANN PHILLIPS GADEKAR v. HAROLD HUGH PHILLIPS
    [No. 1007,
    September Term, 1976.]

      Decided July 11, 1977.

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

      Robert E. Famell, III, with whom were Famell, Freeland & Wright on the brief, for appellant — cross-appellee.

      Frederick C. Malkus and William H. Pattison, Jr., for appellee — cross-appellant.
   Moore, J.,

delivered the opinion of the Court.

Both sides to this declaratory judgment proceeding, in equity, have appealed from a final decree of the Circuit Court for Dorchester County (Edmondson, J.) which determined the conflicting claims of an adult brother and sister with respect to more than 300 acres of farm land and certain improvements. The litigants are the son and daughter of S. Harold Phillips who died in 1969 and whose will devised and bequeathed his residuary estate (after payment of debts and taxes) to his daughter, Ruth Ann Phillips Gadekar, appellant and cross-appellee, “to do with whatsoever she shall deem fit and within her full and complete discretion.” There was a proviso, however, that “one-half of any rents and profits or proceeds of sale, or any other income from such property after deduction of necessary costs of management or preservation shall be paid to my beloved son Harold Hugh Phillips.” The apparent reason for this disposition was that the relationship between father and son was strained, the son having been an alcoholic who had squandered his money and fought with his father and could not be relied upon to manage the property. After the execution of his will in 1959, the father remarried but made no testamentary provision for his second wife. The latter accordingly filed a renunciation and the son and daughter settled her claim by a conveyance to her of their interest in the residence which she occupied with their father, and by the payment to her of $50,000 in cash.

The cash became available by a mortgage of one of the three farms involved — the “home” farm — consisting of 198 tillable acres and improvements. It is established in the record that both parties desired to avoid selling any of the farm land. Both wished to keep it “intact.” It is also conceded that the mortgage lender, Union Trust Company of Maryland, preferred not to deal with the son and required that clear title to the property be vested in the daughter. Accordingly, an agreement between the son and daughter was entered into on June 19, 1971, whereby the son agreed to convey his interest in the father’s matrimonial residence in Hurlock, Maryland to Evelyn L. Phillips, the father’s surviving spouse; and he also agreed to convey “all his right, title and interest in and to all of the real estate owned by Samuel Harold Phillips, deceased, unto Ruth Ann Gadekar.” A deed of the same date was executed by him in fulfillment of this commitment. The sister, in turn, conveyed her interest in the Hurlock property to the stepmother and she agreed to pay her brother $2,660 in cash, the same amount which she herself received in the mortgage transaction. She also covenanted to do everything required by the father’s will, namely, to pay one-half of the rents, profits, income and proceeds of any sale to her brother.

In November 1974, approximately five years after the father’s death, the brother filed a bill of complaint for declaratory relief, requesting the court to declare that he and his sister were tenants in common as to all the real property of their father except, of course, the single parcel which they had conveyed to his widow. An accounting of all proceeds from the farms was also prayed. The chancellor, after hearing testimony in open court, rendered an oral opinion from the bench and thereafter signed a decree wherein it was ordered that the real property deeded by the brother to the sister on June 19, 1971 “remain under the exclusive management and control of [the sister] subject to the terms and conditions of the Agreement between [them] dated June 19, 1971”; and subject also to the requirement that she account annually to the brother, “allowing herself one-half of travel expenses she may reasonably incur for management of the property. ...”

The chancellor also decreed that upon the death of either the brother or the sister “it shall be deemed that any real property subject to the Deed of June 19, 1971 not previously sold, shall be held and owned by the heirs and estate of the decedent on the one part, and the survivor on the other part, as tenants in common.. ..”

It is the position of the sister, as appellant and cross-appellee, that the chancellor erred in several respects. She contends that the brother was guilty of laches and that the case was not a proper one for declaratory relief. On the merits, she argues that the court erred in its determination that upon the death of either the brother or sister, the survivor and the heirs of the decedent would become tenants in common. To the contrary, it is maintained that the sister held title to the property in fee simple absolute, subject to a trust of the income and the proceeds of any sale. The sister also contends that because she occupied the status of a trustee, the court erred in failing to grant her the compensation of a trustee, instead of one-half her travel expenses.

The brother is also dissatisfied with the terms of the decree, contending that the agreement and the deed from him to his sister dated June 19, 1971 should be set aside, the real property ordered to be sold and the proceeds evenly divided between the parties. In his brief he complains that he received no consideration for the conveyance of his interest in the farm properties to his sister in June, 1971 and that there was “a total lack” of “fairness, adequacy and equity” in the June 19, 1971 transactions.

I

We have carefully considered and must reject the appellant’s assignments of error based upon procedural grounds. First, we observe that while the defense of laches was asserted in the appellant's amended answer to the amended bill of complaint, it was not thereafter pursued in the proceedings below and was not ruled upon by the trial court. Accordingly, that claim is not properly before us. Maryland Rule 1085.

Appellant’s other procedural argument, that the relief by way of declaratory judgment was inappropriate, must also be rejected. The Maryland Uniform Declaratory Judgments Act, Code, Cts. & Jud. Proc. Art., § 3-409 (a) (1974) provides, with exceptions not here pertinent, that:

“[A] court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if:
(1) An actual controversy exists between contending parties;
(2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or
(3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.”

In our judgment, the trial court was entirely correct in holding that “an actual controversy does exist and there are antagonistic claims between the parties and the provisions of the declaratory judgment statute are applicable.” See Hamilton v. McAuliffe, 277 Md. 336, 353 A. 2d 634 (1976); Patuxent Co. v. Commissioners, 212 Md. 543, 129 A. 2d 847 (1957); Lucas v. Mercantile-Safe Deposit and Trust Co., 29 Md. App. 633, 350 A. 2d 156 (1976). From the pleadings and proceedings below, it is abundantly clear that the parties to this suit are in “actual controversy” over their respective rights under the agreement of June 19, 1971. Appellant’s claim is wholly devoid of merit.

II

From the recitation below of the respective provisions of the will and of the June, 1971 agreement between the parties, it becomes immediately apparent that the father’s will was inartfully drawn and that the agreement of 1971 represented, for the most part, a restatement of the principal provisions of the will. The last will and testament of the senior Phillips which he executed on June 26, 1959, was indeed a “simple will.” The testamentary clauses were as follows:

“After payment of all my just debts and funeral expenses I hereby give, devise and bequeath all of my property of whatever description whether real, personal or mixed, wheresoever situate, unto my beloved daughter Ruth Ann Phillips Gadekar to do with whatsoever she shall deem fit and within her full and complete discretion, provided, however, that one-half of any rents and profits or proceeds of sale, or any other income from such property after deduction of necessary costs of management or preservation shall be paid to my beloved son Harold Hugh Phillips.
“I have further provided for both my children with life insurance policies on my life, which policies are made out to them individually as specific beneficiaries and which will be paid to them individually upon my death.
“I hereby appoint my said daughter, Ruth Ann Phillips Gadekar, the sole executrix of this my last will and testament and request that she be excused from the necessity of giving bond as such executrix.” (Emphasis added.)

The agreement between the brother and sister of June 19, 1971, after a recital of consideration, contained the following covenants:

“1. That the said Harold Hugh Phillips will convey his interest in the dwelling in Hurlock, Maryland to Evelyn L. Phillips [the father’s widow],
2. That the said Harold Hugh Phillips will convey all his right, title and interest in and to all of the real estate owned by Samuel Harold Phillips, deceased, unto Ruth Ann Gadekar.
3. Ruth Ann Gadekar agrees to pay to Harold Hugh Phillips the following:
a. The sum of $2,660.00 cash for sale of the aforesaid Hurlock dwelling.
b. One-half of the rents from the property conveyed to Ruth Ann Gadekar as aforesaid.
c. One-half of the profits or proceeds of the sale of any part or all of the real estate conveyed to Ruth Ann Gadekar as aforesaid.
d. One-half of the income of the real estate conveyed to Ruth Ann Gadekar as aforesaid after the deduction therefrom of the necessary costs of management or preservation.”

It is clear from the record that both brother and sister intended their agreement of June 19, 1971 to follow the “exact terms” of their father’s will. The appellant-sister so testified and her brother admitted on cross-examination that after he signed the agreement his interest in the property was the same as it had been under his father’s will, that he received “not a bit more than the will.”

As we analyze the somewhat unusual situation here presented, it becomes essential to determine in the first instance the legal relationship existing between the parties on June 19, 1971 in consequence of the father’s testamentary disposition. The testator, in the broadest and most unqualified language, devised all his property to the appellant herein, his daughter, “to do with whatsoever she shall deem fit and within her full and complete discretion.” These words seem clearly intended to grant legal title to the daughter in fee simple absolute. See Md. Ann. Code, Estates and Trusts Art. § 4-408 (1974). This devise was subject, however, to the burden imposed by the proviso “that one-half of any rents and profits or proceeds of sale, or other income from such property after deduction of necessary costs of management or preservation shall be paid to my beloved son, Harold Hugh Phillips.”

We think it clear from the language of the will and established principles of law that no trust was created for the son’s benefit but, rather, an equitable charge was imposed upon the property in his behalf. The intention to create a trust under the terms of a will must be apparent and the specific words “trust” and “trustee” are not necessary. Hardgrove v. Hardgrove, 240 Md. 634, 646, 215 A. 2d 183, 190 (1965). Similarly, no particular terminology is necessary to create a charge. 1 G. G. & G. T. Bogert, Trusts and Trustees § 31 (2d ed. 1965). Where, as in the instant case, a testator devises or bequeaths property subject to the payment of income to or the enjoyment of benefits by a person other than the devisee, he thereby creates an equitable charge and not a trust. 1 A. Scott, Law of Trusts § 10 (3d. ed. 1967).

The incidents of an equitable charge are thus explicated in the Restatement:

“In the case of an equitable charge ..., the person having title to property holds it subject to an equitable interest in another person. If an equitable charge is created, the equitable encumbrancer has an equitable lien upon the property, but the person who holds subject to the charge is the owner of the property, subject only to the lien. . . .” Restatement (Second) of Trusts § 10 (1959).

The Court of Appeals of Maryland in Hardgrove v. Hardgrove, supra, applied the distinction under circumstances where a testator devised certain real property to his two sons, William and Lyle, as joint tenants. In a subsequent clause, he bequeathed one-half the income produced by the devised property to William and provided that the other one-half was to be shared equally between Lyle and the testator’s two grandsons. (The grandsons’ share was to be deposited by Lyle in a savings account for the education of the grandsons.) In holding that the grandsons’ interest in the income of the property constituted a charge and not a trust, Judge Horney explained:

“[W]hile it is true that a charge on land is never presumed and the intention to create a charge must be clear or no charge will be created,.. . when the intention of the testator is clearly implied, a direction that grandchildren be educated out of profits from real property under the direction of his executors is regarded as a charge.” (Citations omitted.) 240 Md. at 646, 215 A. 2d at 190. See Owens v. Claytor, 56 Md. 129 (1881); Meakin v. Duvall, 43 Md. 372 (1875); Warfield v. Gambrill, 1 Gill & J. 503 (1829).

Strikingly apposite to the instant case is Ogle v. Durley, 77 So. 2d 688 (Miss. 1955), where the testatrix, Mrs. Lucy Wilson, devised to her son, T. Webber Wilson, a 420 acre farm. In a codicil to her will, Mrs. Wilson wrote:

“I want Webber to divide equally the income of the farm with Rosa Mai Durley, his sister, as long as she lives.”

In construing the above provision as a charge, and in holding that the sister did not gain an interest in the property itself, the court stated:

“There was a clear devise of the land to T. Webber Wilson. There was not a devise of the rents, but merely a direction to the devisee to divide the income with Mrs. Durley. We are of the opinion that Mrs. Durley did not acquire a life estate, legal or equitable in the [farm].” 77 So. 2d at 691.

The Mississippi Supreme Court went on further to distinguish between a charge and an equitable trust:

“The codicil to Mrs. Wilson’s will charged the devisee with the duty to divide equally the income with Mrs. Durley — nothing more. We may not presume her intent was to burden her son, T. Webber Wilson, with the rather onerous role of a trustee, with the resulting duties and responsibilities required of a fiduciary. No words of trust were employed. It is not manifest or reasonably inferable that the testator intended to to create a trust in the sense of making the devisee a fiduciary, and to so hold would be to press too far the words of the codicil.” 77 So. 2d at 693.

One of the significant differences between a trust and a charge is that the beneficiary of the trust maintains a beneficial interest in the corpus, whereas the beneficiary of a charge holds only a security interest in the property to the extent of the benefits conferred. See 1 G. G. & G. T. Bogert, Law of Trusts § 14 (5th ed. 1973).

However, the critical distinction between trusts and charges for purposes of resolution of the issues posed in this case is the absence of any fiduciary element in the chargee’s duty toward the beneficiary of the charge. “The duty of a devisee subject to an equitable charge with respect to property is a negative one; he must not so deal with the property as to destroy or interfere with the equitable lien of the encumbrances...Scott, Law of Trusts, supra, at § 10. Other than this negative duty, the devisee of property subject to the charge has no special duties toward the beneficiary:

“They are free to contract with each other; the interest of the beneficiary may be sold or released to the one agains t whose property it runs; and there is no burden on the bwyer or releasee to prove good faith or full disclosure. They stand in the business relation of debtor and secured creditor. The burden of proving actual fraud or other invalidating cause is on the beneficiary of the charge, if he claims the chargee has taken advantage of him.” (Emphasis added.) Bogert, Trusts and Trustees, supra, § 31 at 256.

It follows, therefore, that Mrs. Gadekar and her brother, Mr. Phillips, were free to contract with each other, as they did, on June 19, 1971, and certainly there was no impediment to their execution of an agreement which in practical effect merely restated the provisions of their father’s will. We find that the brother, as cross-appellant, may not prevail on grounds of fraud because the evidence is insufficient to establish fraud so as to invalidate that contract; and there was no breach of any fiduciary duty because no such duty existed. Furthermore, the brother’s contention that the contract was unenforceable for lack of consideration is unsupportable. The appellee received the sum of $2,660 in cash as,a result of the settlement with the testator’s widow. The settlement would not have been possible except by a sale of farm land which the brother did not desire or by the mortgage which his agreement with the sister made, possible. We think there can be no serious issue as to the existence or not of a quid pro quo for the execution by the brother of the June, 1971 agreement. Even if no economic benefit had been derived by him, the appellee received the satisfaction of keeping his father’s holdings intact. See 1 A. Corbin, Corbin on Contracts § 121 (1963); Swift v. Allan, 211 Md. 588, 128 A. 2d 260 (1957).

In summary, we conclude that the agreement between the parties of June 19, 1971 was valid and enforceable as was the deed executed by the appellee conveying to the appellant all his right, title and interest in his father’s property. Just as, however, the devise of the father’s property to the daughter was burdened by a charge in favor of the brother, so the agreement and conveyance of 1971 was subject to the same charge. The only issue remaining is its duration.

Neither the will nor the agreement between the parties expressly declared the duration of the charge, nor is there any language either in the will of the decedent or in the agreement between his son and daughter from which any inference can be drawn that the burden of the charge upon the farm lands in question would survive the named beneficiary. There is no reference, in either instrument, to the son’s heirs or assigns notwithstanding the fact that at the time of the testator’s death the appellee had a son age 7 or 8 and that the son was surviving at the time of the execution of the 1971 agreement. Despite his knowledge of his grandson’s existence, the testator made no provision for him in his will either by way of a continuation of the equitable charge or otherwise. ,

Generally, a charge is limited by express language contained in the instrument to a duration long enough to accomplish the purpose intended, see, e.g., Hardgrove v. Hardgrove, supra (20 year charge for the education of the beneficiaries); Owens v. Claytor, supra (payment of life annuity held to create a charge); or for a specific number of years, see Restatement (Second) of Trusts, supra, at § 10; or for the life of the beneficiary, see, e.g,, Meakin v. Duvall; supra (charge created a permanent home for the testator’s daughters during their lives).

In this case, in the absence of any expressed intention on the part of the testator to extend the charge beyond the son’s life and in the absence of any such provision in the agreement between the parties, we have found no authority that would support a holding that the charge would redound to the benefit of the heirs of the brother and would burden the property in the hands of the sister and her heirs upon the demise of the brother. We may not write a new will for the testator nor change the terms of a valid and enforceable agreement between the parties. The conclusion is therefore inescapable that the charge upon the real property held by the appellant in favor of the appellee exists only for the life of the appellee. Accordingly, we reverse and set aside so much of the decree as provides that “upon the death of either Harold H. Phillips or Ruth Ann Gadekar it shall be deemed that any real property subject to the Deed of June 19, 1971 not previously sold, shall be held and owned by the heirs and estate of the decedent on the one part, and the survivor on the other part, as tenants in common.”

Ill

Appellant challenges the provisions of the decree which denied her compensation in the form of a “management fee” of 10% of the gross income from the property. As we have found, appellant is not a trustee and we must therefore reject her contention that she is entitled to compensation as a trustee even though no specific provision for such compensation had been made. See Estates and Trusts Article § 14-103; Sokol v. Nattans, 26 Md. App. 65, 337 A. 2d 460 (1975). The chancellor’s allowance to appellant of an amount equal to one-half of her transportation expenses to and from Dorchester County was fair and reasonable. We find no abuse of discretion.

Decree affirmed in part and reversed in part: cause remanded for entry of a decree in accordance with this opinion; appellant and appellee to pay their respective costs.

      . Appellant admitted that she had not prepared an annual accounting for her brother but testified that she showed him the books, records and cancelled checks periodically. An audit by a firm of certified public accountants, received in evidence, disclosed that the properties were being managed profitably and that appellant had paid her brother approximately $28,000, as his share, for the period 1971-75.

      . The sister was a resident of Trenton, New Jersey and testified that in the management of the farm she made regular trips between Trenton and Dorchester County, a distance of some 180 miles. (The brother was also a citizen of New Jersey, residing in Hopewell.)

      . The brother’s brief as cross-appellant thus goes beyond the bill for declaratory relief which prayed no sale but, rather, a determination that the parties held the property as tenants in common.

      . In a colloquy with the trial court, counsel for the sister stated:
      “I agree that this will is a trifle inartful; the agreement is equally inartful, but deliberately so. The temptation was to rewrite the rights of the parties, as I understood them, or as I thought they ought to be, but I didn’t think I should do that. I thought I had the duty, especially with two of them, to preserve the status quo, inartful though it was, and not to try to take advantage of anybody, particularly of Mr. Phillips. So I quite agree that the agreement is as bad as the will, but that it was meant to be, and so everybody understands that their position, the position under the agreement and position under the will is the same. There doesn’t seem to be any quarrel there. Mr. Phillips said he understood that on the witness stand and Mrs. Gadekar said that was the purpose of the agreement, to try to carry on her father’s will. So that is true, it doesn’t make any difference which we are under —”
      Thereafter, he also observed:
      “I can only say what I understand from this document, which I endeavored, apparently I was one hundred percent successful, in drawing the agreement to perpetuate the will. And that to do, because I would have thought it would be unfair and bordered on being unethical for me to draw an agreement that would have done otherwise and would have prejudiced the son’s interest.”

      . It appears that the mortgage to Union Trust Company of Maryland generated a net sum of $5,320. in cash, above the $50,000 needed to settle with the stepmother, Evelyn L. Phillips. The brother and sister divided the surplus cash evenly, each receiving $2,660.00.

      . The brother also affirmed that he did not wish the farm properties to be sold, that some settlement with his stepmother was necessary in order that the property would not have to be sold and that his own name and credit “wasn t to good” because of his drinking problem at that time.


text:
    JOHN THOMAS CRAWFORD v. STATE OF MARYLAND
    [No. 1143,
    September Term, 1976.]

      Decided July 11, 1977.

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

      W. Kennedy Boone, III, Assigned Public Defender, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and John S. Hollyday, State’s Attorney for Washington County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Cheryl Marie Adams was observed by a passing motorist on Route 40 “walking down on the side of the road with blood all over the side of her face, actually all over her face.” Police were called and she was taken to the Washington County Hospital. She had sustained two gunshot wounds of the head. The wounds produced blindness of the right eye. The position of the bullets within the skull was such as to inhibit their removal. A jury in the Circuit Court for Washington County, convicted John Thomas Crawford of assault with intent to murder her. He was sentenced to imprisonment for thirty years.

In his appeal to this Court appellant contends:

1. That testimony given by Cheryl Marie Adams at a preliminary hearing in the District Court of Maryland for Washington County was erroneously admitted in evidence at the jury trial in the Circuit Court; and

2. That his motion for revision of verdict was erroneously denied.

1. Admission of Testimony Taken at Preliminary Hearing

The rule seems universal that testimony taken at a former trial may be admitted in evidence at a second trial in appropriate circumstances as an exception to the general rule proscribing hearsay evidence, when the witness is no longer available. The text writers seem to make no distinction between a former trial and a preliminary hearing. In McCormick, Evidence, Ch. 25 § 258 at 622 (2nd Ed. HB 1972), it is said:

“If the accepted requirements of the administration of the oath, adequate opportunity to cross-examine on substantially the same issue, and present unavailability of the witness, are satisfied then the character of the tribunal and the form of the proceedings are immaterial, and the former testimony should be received. Accordingly, when these conditions are met, testimony taken before arbitrators, or before a committing magistrate at a preliminary hearing, or in a sworn examination before the Comptroller by the Corporation Counsel of a person asserting a claim against a city, or at a driver’s license revocation hearing, or at a broker’s license revocation hearing, has been held admissible.”

In 2 Jones on Evidence, § 9:22 at 229-230 (6th Ed. 1972), it is said:

“Testimony which has been given by a witness in a former action or at a former stage of the same action, where it meets certain conditions as hereinafter mentioned, is admissible in a subsequent proceedings, under an exception to the hearsay rule.”

In 3 Wharton’s Criminal Evidence, § 650 at 371-375 (13th Ed. Torcía 1973), it is said:

“As an exception to the hearsay evidence rule, the testimony of a witness at a preliminary hearing or former trial may be allowed in evidence at a subsequent trial if a proper foundation has been laid, including a showing that the witness is no longer ‘available’. Whether a proper foundation has been laid is a question for the trial judge in his discretion to resolve, and his ruling will not be disturbed unless there has been a clear abuse of such discretion. This use of a former witness’ testimony is not violative of the accused’s constitutional right ‘to be confronted with the witnesses against him’ if, at the preliminary hearing or former trial, the accused had been accorded an adequate opportunity to cross-examine such witness. As in the case of any testimony, the weight to be accorded reproduced testimony is for the jury to determine.”

In Annot., 159 A.L.R. 1240 (1945), it is said at 1242:

“The rule stated in the previous annotations on this subject that the reproduction of testimony taken in the presence of the accused at a former trial or preliminary hearing, at a later trial when the presence of the witness cannot be secured, does not contravene the right of the accused guaranteed him by the state constitution to be confronted with the witnesses against him, has been affirmed . ..”

Early appellate decisions clearly support the text writers’ view that testimony at preliminary hearing, in appropriate circumstances, may be received in evidence at the later trial. See, e.g., State v. Gaetano, 96 Conn. 306, 114 A. 82 (1921); State v. Stewart, 85 Kan. 404, 116 P. 489 (1911); Warren v. State, 6 Okla. Crim. 1, 115 P. 812 (1911); Commonwealth v. Ryhal, 274 Pa. 401, 118 A. 358 (1922); and Porch v. State, 51 Tex. Crim. 7, 99 S. W. 1122 (1907).

The precise question before us is one of first impression in this State, although the Maryland position generally on admissibility of prior testimony was thus clearly and succinctly stated by Judge Henderson (now retired) for the Court of Appeals in Contee v. State, 229 Md. 486, 491, 184 A. 2d 823, 825-826 (1962):

“It is well settled that testimony taken at a former trial may be admitted, if it be shown that the witness is dead, insane, or beyond the jurisdiction of the court, or on diligent inquiry cannot be located, or that some other circumstance exists which shows that the witness who gave the testimony at the former trial cannot be procured as a witness at the second trial. This general rule was stated in Hendrix v. State, 200 Md. 380, 387, and in somewhat different form in Bryant v. State, 207 Md. 565, 587. See also Marshall v. Haney, 9 Gill. 251, 257; Rogers v. Raborg, 2 G. & J. 54, 60; Bowie v. O’Neale, 5 H. & J. 226, 234. For a discussion of the principles involved and the authorities elsewhere, see 5 Wigmore, Evidence (3rd ed.) § 1406 et seq.; 2 Jones, Evidence (5th ed.) § 313; 2 Wharton, Criminal Evidence (12th ed.) § 479; Notes 15 A.L.R. 495; 79 A.L.R. 1392; 122 A.L.R. 425; 159 A.L.R. 1240. The writers and authorities all agree that where there was an opportunity to cross-examine the witness in the former trial, there is no violation of the right to be confronted with the witnesses against the accused, under Art. 21 of the Maryland Declaration of Rights or under the Due Process clause of the Fourteenth Amendment to the Federal Constitution. Since there is no constitutional right involved, there has been a discernible tendency, we think, to liberalize the rule, which was first applied ex necessitate in case of death.”

Appellant, however, urges that recent decisions of the Supreme Court destroy the continued viability of the rule insofar as testimony given at a preliminary hearing is concerned. He cites Pointer v. Texas, 380 U. S. 400, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965), and Barber v. Page, 390 U. S. 719, 88 S. Ct. 1318, 20 L.Ed.2d 255 (1968), as supportive of that contention. We think that neither Pointer nor Barber paints with so broad a brush.

In Pointer, supra, the Supreme Court did indeed reverse the judgment of a State court wherein a transcript of testimony given at a preliminary hearing had been admitted and announced its holding in the following words:

“We hold today that the Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment.” 380 U. S. at 403, 85 S. Ct. at 1068, 13 L.Ed.2d at 926.

The Supreme Court explained, however, that its decision stemmed from the circumstance that opportunity for cross-examination had not existed at such preliminary hearing:

“Under this Court’s prior decisions, the Sixth Amendment’s guarantee of confrontation and cross-examination was unquestionably denied petitioner in this case. As has been pointed out, a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him. See, e.g., Dowdell v. United States, 221 U. S. 325, 330; Motes v. United States, 178 U. S. 458, 474; Kirby v. United States, 174 U. S. 47, 55-56; Mattox v. United States, 156 U. S. 237, 242-243. Cf. Hopt v. Utah, 110 U. S. 574, 581; Queen v. Hepburn, 7 Cranch 290, 295. This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U. S. 140, 151, and of testimony of a deceased witness who has testified at a former trial, Mattox v. United States, 156 U. S. 237, 240-244. See also Dowdell v. United States, supra, 221 U. S., at 330; Kirby v. United States, supra,. 174 U. S., at 61. Nothing we hold here is to the contrary. The case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine. Compare Motes v. United States, supra, 178 U. S., at 474. There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses. The case before us, however, does not present any situation like those mentioned above or others analogous to them. Because the transcript of Phillips’ statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips, its introduction in a federal court in a criminal case against Pointer would have amounted to denial of the privilege of confrontation, guaranteed by the Sixth Amendment. Since we hold that the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding, it follows that use of the transcript to convict petitioner denied him a constitutional right, and that his conviction must be reversed.” 380 U. S. at 406, et seq., 85 S. Ct. at 1069, et seq., 13 L.Ed.2d at 928, et seq.

We think the decision of the Supreme Court in Barber v. Page, supra, was grounded upon lack of a good faith effort to obtain the presence of the witness. The Supreme Court declared:

“It is true that there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. E g., Mattox v. United States, supra (witnesses who testified in original trial died prior to the second trial). This exception has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.” 390 U. S. at 722, 88 S. Ct. at 1320,20 L.Ed.2d at 258.

The Court went on to say:

“In this case the state authorities made no effort to avail themselves of either of the above alternative means of seeking to secure Woods’ presence at petitioner’s trial. The Court of Appeals majority appears to have reasoned that because the State would have had to request an exercise of discretion on the part of federal authorities, it was under no obligation to make any such request. Yet as Judge Aldrich, sitting by designation, pointed out in dissent below, ‘the possibility of a refusal is not the equivalent of asking and receiving a rebuff.’ 381 F. 2d, at 481. In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.” 390 U. S. at 724-725, 88 S. Ct. at 1322,20 L.Ed.2d at 260.

It is true that the Supreme Court added:

“Moreover, we would reach the same result on the facts of this, case had petitioner’s counsel actually cross-examined Woods at the preliminary hearing. See Motes v. United States, 178 U. S. 458 (1900). The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial. While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.” 390 U. S. at 725-726, 88 S. Ct. at 1322, 20 L.Ed.2d at 260.

It is the language used in the last above quoted paragraph of the Supreme Court’s decision in Barber, supra, upon which the appellant relies in the subject case for his contention that testimony at a preliminary hearing is, ipso facto, inadmissible in the subsequent trial. We do not read that language as establishing a per se exclusionary rule.

We think that the Supreme Court itself has rejected the thought that its decisions in Pointer and Barber, both supra, should be so broadly applied. In the later case of California v. Green, 399 U. S. 149, 90 S. Ct. 1930, 26 L.Ed.2d 489 (1970), the Supreme Court said:

“We also think that Porter’s preliminary hearing testimony was admissible as far as the Constitution is concerned wholly apart from the question of whether respondent had an effective opportunity for confrontation at the subsequent trial. For Porter’s statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel — the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter’s statement would, we think, have been admissible at trial even in Porter’s absence if Porter had been actually unavailable, despite good-faith efforts of the State to produce him. That being the case, we do not think a different result should follow where the witness is actually produced.
“This Court long ago held that admitting the prior testimony of an unavailable witness does not violate the Confrontation Clause. Mattox v. United States, 156 U. S. 237 (1895). That case involved testimony given at the defendant’s first trial by a witness who had died by the time of the second trial, but we do not find the instant preliminary hearing significantly different from an actual trial to warrant distinguishing the two cases for purposes of the Confrontation Clause. Indeed, we indicated as much in Pointer v. Texas, 380 U. S. 400, 407 (1965), where we noted that ‘[t]he case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.’ And in Barber v. Page, 390 U. S. 719, 725-726 (1968), although noting that the preliminary hearing is ordinarily a less searching exploration into the merits of a case than a trial, we recognized that ‘there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable____'In the present case respondent’s counsel does not appear to have been significantly limited in any way in the scope or nature of his cross-examination of the witness Porter at the preliminary hearing. If Porter had died or was otherwise unavailable, the Confrontation Clause would not have been violated by admitting his testimony given at the preliminary hearing — the right of cross-examination then afforded provides substantial compliance with the purposes behind •the confrontation requirement, as long as the declarant’s inability to give live testimony is in no way the fault of the State.” 399 U. S. at 165-166, 90 S. Ct. at 1938-1939,26 L.Ed.2d at 501.

Finally, in Mancusi v. Stubbs, 408 U. S. 204, 92 S. Ct. 2308, 33 L.Ed.2d 293 (1972), the Supreme Court referred to its recent decisions dealing with the Confrontation Clause and made plain they constituted no departure from long held constitutional views. The Supreme Court said:

“In addition to Barber v. Page, recent decisions of this Court that have dealt at some length with the requirements of the Confrontation Clause are California v. Green, 399 U. S. 149 (1970), and Dutton v. Evans, 400 U. S. 74 (1970). The focus of the Court’s concern has been to insure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,’ Dutton v. Evans, supra, at 89, and to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,’ California v. Green, supra, at 161. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these ‘indicia of reliability’ referred to in Dutton.
“At least since the decision of this Court in Mattox v. United States, 156 U. S. 237 (1895), prior-recorded testimony has been admissible in appropriate cases.” 408 U. S. at 213, 92 S. Ct. at 2313, 33 L.Ed.2d at 301-302.

We think these decisions of the Supreme Court do no more than to require (1) that a reasonable opportunity for cross-examination by counsel at the preliminary hearing be accorded, or other indicia of reliability shown such as afforded the trier of fact a satisfactory basis for evaluating the truth of the prior statement, and (2) that the record demonstrate that diligent efforts to obtain the personal attendance of the witness had been made. Otherwise stated, these recent decisions should be interpreted as mandating careful consideration by the trial judge of all of the circumstances surrounding the making of the prior record and requiring clear demonstration that diligent efforts to obtain the personal attendance of the missing witness were made by the State.

In turn, we perceive it to be our duty, on appeal, carefully to examine the record and make our own independent review of the record as a whole to determine whether any constitutional right assured by the Confrontation Clause of the Sixth Amendment has been denied. We think no constitutional right was abridged.

In the subject case, as in California v. Green, supra, the testimony at the preliminary hearing “had already been given under circumstances closely approximating those that surround the typical trial.” 399 U. S. at 165,90 S. Ct. at 1938, 26 L.Ed.2d at 501. Appellant “had been given a complete and adequate opportunity to cross-examine,” (Pointer v. Texas, 380 U. S. at 407, 85 S. Ct. at 1069-1070, 13 L.Ed.2d at 928) and had exercised that opportunity.

The trial judge conducted a full hearing, out of the presence of the jury, upon the question whether diligent efforts had been made by the State to obtain the personal attendance of the missing witness. We think it will suffice to say that the State filed proceedings in the Superior Court of the District of Columbia (the witness resided within the District of Columbia) seeking the assistance of that court in obtaining the attendance of the witness in the Maryland court pursuant to the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (Cts. & Jud. Proc. §§ 9-301 — 9-307, inclusive).

The record shows that two detectives of the Metropolitan Police Force were assigned to the search for the witness; that on or about fourteen occasions they attempted to locate her at her school, at her mother’s home and at her mother’s place of employment. The mother ran from the back door of her place of employment to avoid them, finally quitting her job. The mother called the home of one of the officers protesting their harassment and declaring that the daughter was living with her father at an address she refused to disclose.

We think that the recited efforts by the State to obtain the attendance of the witness fully meet the requirements mandated by Barber, supra. Compare Brooks v. State, 35 Md. App. 461, 468, et seq., 371 A. 2d 674, 677, et seq. (1977).

In the subject case, Cheryl Marie Adams had given testimony under oath at a preliminary hearing in the District Court of Maryland for Washington County. The accused was in attendance and was represented by counsel.

She testified in substance that she was fourteen years old; that she left Washington, D. C. with the appellant in his automobile; that appellant stopped the vehicle on the roadside en route to Cumberland, Maryland, and both alighted; that “he took the gun and he put it in his waistband.” She then testified that:

“He told me to stand up on this hill, so I stood up there. There was a little piece of rock that was up there I was standing on. He said — look around the side of those trees, you’ll see it and so I looked. Actually I knew what was going to happen but I wasn’t really sure, so I just went along with it and so he struck me in the back of my head. He expected me to fall down the hill but I didn’t fall, I fell the opposite way. He shot at me about three or four times and then he kicked me in the stomach and then he left.
Q At this point, now when you left the car was there anyone in the car but the two of you?
A There was no one in the car but the two of us.”

On cross-examination, the witness denied knowing a man named Robert Rogers or that she had ever heard her family or anybody in her area talk of a man bearing that name.

The appellant, testifying in the substantive trial below, told an entirely different story. He testified that Robert Rogers, about 26 years old, a friend of Cheryl Marie Adams, had been picked up en route. He explained that Rogers’ nickname was “Prees.” He thus described events occurring on the road to Cumberland:

“Cheryl had promised my youngest sister-in-law, that the next time she came up, she would bring her friend Prees along to meet her. Anyway, he agreed that he would come along and meet the rest of my family. He had never met my in-laws or my wife, so we had agreed to pick him up for that purpose.
Q Alright now, what, if anything unusual happened on Route 40 in Washington County while this trip was under way?
A There was a lot of dissension between the younger ones about Cheryl moving to Cumberland.
Q Now what do you mean ‘dissension’?
A Because Prees was against this, he didn’t want her to move up there.
Q Then what happened after that?
A Well, I finally told him, I told Prees that I was . going to put him out of the car and that he definitely was not going to Cumberland.
Alright how, what happened when you stopped the car?
,A I asked him to get out of the car and she told me . that if he got out she had to get out. I went around on the passenger side of the car and he and I had a little scuffle.
Q What happened to you and Prees at that time?
A Well, we had a little scuffle and he had a pistol on him and I took him down into the bushes and I took the pistol from him and threw it down into the bushes and then Cheryl got out of the car and she decided to stay with him and I told her if she stayed with him now, don’t ever call on me again for anything.”

Appellant then categorically denied the Adams version of events.

We perceive no error in the admission of the prior testimony. We see no violation of the Confrontation Clause of the Sixth Amendment.

2. Denial of Motion to Revise Verdict

On May 27, 1976, following appellant’s conviction, he was remanded to the Washington County Detention Center pending a presentence investigation.

On July 7, 1976, the appellant filed a document in the circuit court entitled “Motion to Revise Verdict.” The motion alleged, inter alia:

“That subsequent to the aforesaid trial the alleged victim, Cheryl Marie Adams, on June 24, 1976, sent by mail to, among others, Honorable Paul Ottinger, the State’s Attorney and Defense Counsel, an affidavit and sworn statement of Cheryl Marie Adams wherein she states that the Defendant did not assault the said Cheryl Marie Adams on September 22, 1975 and that he was not responsible for same. A copy of the Affidavit and Statement is attached to this Motion and marked as Exhibit One.”

Hearing was commenced upon the motion on August 5, 1976, at which time Cheryl Marie Adams was called as a witness by the appellant. She testified that she had not appeared at appellant’s trial because, “I didn’t know anything about it.” She explained that she had been staying with her father in New York until the last of June and, hearing of the trial and conviction had made a sworn statement repudiating her prior statements at the preliminary hearing. At the hearing she said that John Thomas Crawford did not in fact assault and shoot her, accusing instead an alleged boyfriend, Robert Rogers. She explained that she had accused Crawford because, “I had been threatened by [Robert Rogers] many times before the accident happened.” She said that she had no personal contact with Robert Rogers since September of 1975, but had received threatening letters from him and his friends. She acknowledged that she had told a State trooper on the day after the incident that the appellant had shot her. She acknowledged that she had made similar accusations against him (a) at the preliminary hearing; (b) at a hearing before the Grand Jury.

Additional testimony was taken on the motion on August 11, 1976. Personnel employed at the Washington County Detention Center testified that Edith Adams, mother of Cheryl Marie Adams, had visited appellant at the Detention Center on numerous occasions.

The trial judge delivered an oral opinion at the conclusion of the hearing in which he said, inter alia:

“I have gone over the entire case and I don’t have any difficulty at all in reaching these conclusions.
“One, I am certain that the Jury reached the right decision and I am certain that this Defendant is the man who shot the victim twice on September 22nd of last year, that is to say that he is guilty. I am certain that when the fourteen year old victim told the Police that he shot her that she is telling the truth and when she testified in the District Court and before the Grand Jury that he shot her, she was telling the truth. One of the most telling things to me in this whole case is the fact that when the case was first scheduled for trial, I believe on April 29th I am sure the State’s Attorney and Defense counsel will remember, the day before the date, each of the three of us received a letter signed purportedly by Edith Adams on yellow foolscap, usually found in some lawyer’s office and acknowledged before a Notary saying that they weren’t coming; that they had enough trouble and didn’t want to be bothered anymore. Now, there wasn’t a word in there about this man being innocent, not one word and I don’t have any doubt that the Defendant in this case made arrangements to keep those people away from the trial. I don’t have any doubt at all.”

A motion for relief under Maryland Rule 764 b 3 is directed to the sound discretion of the trial court; and from an order overruling such a motion no appeal will lie, Williams v. State, 204 Md. 55, 66, 102 A. 2d 714, 719 (1954), unless there was an abuse of discretion. Blackstone v. State, 6 Md. App. 404, 406, 251 A. 2d 255, 256 (1969).

It is quite clear in this case no abuse of discretion has been shown.

Judgment affirmed.

Appellant to pay the costs.

      . For an in-depth analysis of the effect of the constitutional sanction of confrontation see 5 Wigmore, Evidence, § 1397 (Chadbourne rev. 1974).

      . See Maryland Rule 764 b 3, reading as follows:
      “Newly Discovered Evidence.
      The court may, pursuant to a motion filed within the time set forth in subsection 1 of this section, grant a new trial or other appropriate relief on the ground of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under section a of Rule 759 (Motions After Verdict).”


author: Liss, J.,

text:
    RICHARD S. FROSBURG et al. v. STATE DEPARTMENT OF PERSONNEL
    [No. 1150,
    September Term, 1976.]

      Decided July 11, 1977.

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

      Sidney Blum and Wilson K. Barnes for appellants.

      James F. Truitt, Jr., Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

The appellants in this appeal are Richard S. Frosburg and nine other employees of the Motor Vehicle Administration, Department of Transportation. The appellees are the State Department of Personnel, Henry C. Bosz, Secretary of Personnel, and Joan R. Nasdor, Employee Relations Arbitrator of the Department of Personnel.

The appeal is filed from an order of the Baltimore City Court (Greenfeld, J.) dismissing an appeal taken by the employees from an opinion and decision reached by the Arbitrator after a hearing on a Fifth (and final) Step Grievance Appeal. Appellants’ appeal to this Court is filed pursuant to the Administrative Procedure Act.

The facts in this case are not in dispute. The ten appellants at the time this litigation arose and for a number of years previously were employed as Drivers License Reviewers by the Motor Vehicle Administration. That classification had been created under State Civil Service regulations several decades ago and at the time of the dispute the appellants were paid the salary set in Salary Grade 10, providing for an annual salary of $7,672 to $10,800 (maximum reached in six years).

On December 3,1971, pursuant to his statutory power and obligation, Bosz created two new classifications of employees. In each of these new classes, a minimum educational requirement was a Bachelor or Juris Doctor Degree in law from an accredited law school. This was not a requirement for employment as a Drivers License Reviewer.

When appointments were made to the new positions of Hearing Officers I and II the work assigned to be performed by them was essentially the same as that performed by the Drivers License Reviewers. The same type of cases were heard and decided by the employees interchangeably without regard to whether the employee did or did not have a law degree. While the employees were in fact performing substantially identical work the Hearing Officers were being paid at Salary Grade 15 and the Drivers License Reviewers at Salary Grade 10. This situation resulted in the employees designated as Drivers License Reviewers filing two grievances in which they alleged as follows — that the specifications creating Hearing Officers I and II were class-act discriminatory in that the minimal education requirements precluded the Drivers License Reviewers from being considered for the new positions although the nature of work provisions listed in detail types of work that the Reviewers had performed satisfactorily in the past; and secondly, the Reviewers were being underpaid by reason of their classification and the work they were required to do.

Thereafter the grievances moved through the bureaucratic jungle until reaching the nirvana, the “Fifth Step,” the final adjudicatory hearing presided over by the Arbitrator in this case, Joan R. Nasdor. A full hearing was held before her, testimony was taken, documents were offered into evidence, and arguments submitted. The Arbitrator rendered her written opinion and decision on November 13, 1974. In her opinion the Arbitrator noted that the Motor Vehicle Administration had employed Drivers License Reviewers for some 30 years without requiring a law degree for the job. Some of the Reviewers had performed services identical to those of the Hearing Officers for more than ten years without such a degree. She found that the new employees, Hearing Officers I and II, performed the same function as the Reviewers but at substantially higher salaries. She recognized that salary adjustment should be made for the Reviewers but declined to decide the “best course of action to alleviate the inequity” until a pending study had been completed.

The appellants appealed from this decision to the Baltimore City Court (Murphy, J.) and also filed a petition for a writ of mandamus to compel the Arbitrator to decide the case. The case was remanded to the Arbitrator with instructions that she render a final determination on the Fifth Step Grievance after a study by the Classification and Compensation Division had been completed. That study found that the differences between the duties and responsibilities assigned to the Reviewers and Hearing Officers were minimal, occurring in something less than 1% of the cases decided by them, and that the Reviewers should be upgraded to reflect the appropriate salary level for the duties which they were required to perform.

A second hearing was held before the Arbitrator and on September 4, 1975, she rendered a written opinion in which she stated: “Logic and reason compel and persuade by abundantly clear and convincing evidence that the Drivers License Reviewers should be reclassified to Grade 15 effective immediately with this order.” Her order also abolished the classification of Drivers License Reviewer. The Arbitrator did not, however, order that back pay be awarded the appellants from the time of filing the first grievance to the date of reclassification, nor was any explanation given as to the reason for the Arbitrator’s failure to award back pay. The entire issue of back pay was ignored by the Arbitrator’s decision and order and from the record we are unable to determine whether that issue was ever considered by her.

The appellants appealed to the Baltimore City Court on the sole issue of the failure of the Arbitrator to award back pay. The matter came on for hearing before the trial court, arguments were made and memoranda were submitted. It was at this point in the proceedings that the defense of sovereign immunity was raised for the first time on behalf of the State agency. The trial court concluded that the allowance of back pay was barred by sovereign immunity and dismissed the appeal. It is from that order of dismissal that this appeal was seasonably filed.

The appellants urge that the trial court erred in holding that the doctrine of sovereign immunity barred their recovery of the retroactive pay which they claimed was due them from the time of filing the first grievance on December 13, 1972 to September 4, 1975, when the appellants were reclassified at the Grade 15 salary level.

The doctrine of sovereign immunity originated in feudal England on the theory that the highest feudal lord was not subject to suit in his own courts. The doctrine was firmly embedded in the common law and was adopted by the new nation when the American democracy was established.

A period of ferment ensued before the status of the doctrine in the law of the land was firmly established. In Maryland by Chapter 53 of the Laws of 1786 the General Assembly adopted a statute which stated “that any citizen of this State, having any claim against this State for money may commence and prosecute his action at law for the same against this State as defendant.” The Act provided for juries to try the issues and the power of the jury to award “such damages as they think just, and the same shall be paid by the State.” That statute was repealed by Chapter 210 of the Acts of 1820. See Calvert Associates v. Department of Employment and Social Services, 277 Md. 372, 357 A. 2d 839 (1976).

The Supreme Court in 1793 decided in Chisholm v. Georgia, 2 U. S. (2 Dall) 419, 1 L. Ed 440, that Article III, section 2 of the United States Constitution gave jurisdiction to federal courts to adjudicate “controversies between a State and Citizens of another State” irrespective of an assertion of sovereign immunity by the defendant State. The first ten amendments to the Constitution had been adopted as the Bill of Rights as part of the original United States Constitution. The reaction to Chisholm was so strong and immediate that the Eleventh Amendment restricting the judicial power of the Federal Government was adopted in 1798. That amendment effectively reversed the Supreme Court’s holding in Chisholm.

The Court of Appeals in its decision in State v. Baltimore and Ohio R. R. Co., 34 Md. 344, 374 (1871), stated that sovereign immunity “belongs to the State by reason of her prerogative as a sovereign, and on grounds of public policy. Parties having claims or demands against her must present them through another department of the Government — the Legislature — and cannot assert them by suit in the courts.” That rationale has been followed consistently in succeeding Maryland cases. See Godwin v. County Commissioners, 256 Md. 326, 260 A. 2d 295 (1970), where the Court of Appeals in an extensive discussion of the doctrine stated:

“As applied in Maryland, the doctrine of sovereign immunity is not only applicable to the State, itself, as a governmental agency, but is also applicable to its agencies and instrumentalities, including its municipal political sub-divisions, if engaged in a governmental function as an agent of the State, unless the General Assembly either directly or by necessary implication has waived the immunity.” Id. at 334, 260 A. 2d at 299.

See also Stanley v. Mellor, 168 Md. 465, 178 A. 106 (1935); Red Star Line v. Baughman, 153 Md. 607, 139 A. 291 (1927).

In University of Maryland v. Maas, 173 Md. 554, 197 A. 123 (1938), the Court of Appeals held that absent legislative authority and appropriations or provisions for the payment of damages, a suit for damages could not be maintained against the State or one of its agencies. It said at p. 559:

“So it is established that neither in contract nor tort can a suit be maintained against a government agency, first, where specific legislative authority has not been given, second, even though such authority is given, if there are no funds available for the satisfaction of the judgment, or no power reposed in the agency for the raising of funds necessary to satisfy a recovery against it.”

Eminent co-counsel for the appellants, Wilson K. Barnes, formerly an Associate Judge of the Maryland Court of Appeals, spoke for that Court in a case involving the doctrine of sovereign immunity in Maryland, Jekofsky v. State Roads Commission, 264 Md. 471, 287 A. 2d 40 (1972). In upholding the doctrine Judge Barnes said:

“Quite apart from our prior decisions, it is desirable and in the public interest that any change in the doctrine of sovereign immunity should come from the legislative branch of the State Government rather than from the judicial branch inasmuch as there are fiscal considerations, administrative difficulties and other problems in balancing the rights of the State and its agencies with new possible rights of the individual citizens, which can far better be considered and resolved by the legislative branch than by the judiciary of the State.” Id. at 474,287 A. 2d at 42.

The Court of Appeals has recognized the fact that the doctrine of sovereign immunity has been under attack by the legal commentators but has remained steadfast in its conclusion that in Maryland, at least, it is a viable defense until the legislature declares otherwise.

Two cases dealing with the doctrine of sovereign immunity were recently decided by the Court of Appeals. Judge Singley in American Structures v. City of Baltimore, 278 Md. 356, 364 A. 2d 55 (1976), stated:

“In Maryland the rule of our cases is clear. If an action is brought for a money judgment in contract or in tort against the State or an agency of the State without the State’s consent, actual or implied, it must be defended on the ground of sovereign immunity, which cannot be waived unless funds have been appropriated for the purpose or the agency can provide funds by taxation . . . .” (Citations omitted) Id. at 359,364 A. 2d at 56.

In Board of Trustees of Howard Community College v. John K. Ruff, Inc., 278 Md. 580, 366 A. 2d 360 (1976), Judge Orth, speaking for the Court, reaffirmed the conclusion reached in American Structures,

This brings us then to a consideration of the specific factual situation presented by this appeal. The record makes it clear that the trial court concluded, as did the Arbitrator, that the appellants had been improperly classified in the Grade 10 category for several years. The appellants urge, therefore, that the legal proposition that an improperly discharged or demoted public employee is entitled, upon reinstatement, to back pay for the period of improper discharge or demotion is dispositive of this case. People, ex rel. Bourne v. Johnson, 32 Ill. 2d 324, 205 N.E.2d 470 (1965); Rozmierski v. Newark, 42 N.J. Super 14, 125 A. 2d 747 (1956 Sup. Ct.); Craigie v. City of New York, 114 App. Div. 880, 100 N.Y.S. 197 (1906 Sup. Ct., App. Div.). See also 4 McQuillen, Municipal Corporations §§ 12.188, 12.206 and 12.270 (3rd ed. 1951). They suggest that there is no conceptual difference between the improper discharges and demotions (involved in the cases cited in McQuillen, supra) and the improper classifications in the case at bar.

There are two reasons why this contention is not correct. First, the cases cited* by the appellants all concern themselves with discharge, suspension and demotion. In this case, however, wé are not considering a claim that the appellants have been .denied the benefits of a position to which they were appointed. Instead, the contention is that the appellants have been denied the benefits of the position to which they should have been, but were not, appointed. There is a discernible difference under the Maryland Merit System between an improper discharge, suspension or demotion and an improper classification. Procedures for discharge, suspension and demotion are specifically set out in §§ 31, 33 and 36 of Article 64A and such actions may be taken only for cause. The right to a hearing is specifically granted in these types of cases. No such provision is made by statute in the matter of wrongful classification. The only redress is contained in Department of Personnel Policy No. 9 adopted by Executive Order of the Governor (Maryland Code (1977 Rept. Vol,) V61. 9A at pp. 612-14.) wMéh. sets up the Grievance Procedure. It should be noted further that discharge, suspension and demotion are distinguishable from improper classification since the former represent affirmative actions of a punitive nature taken by an agency against an employee, while misclassification is, at the most, inaction on the part of the State rather than an affirmative attempt to alter the employee’s status.

The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it. United States v. McLean, 95 U. S. 750, 24 L. Ed. 579 (1876); Ganse v. United States, 180 Ct. Cl. 183, 376 F. 2d 900 (1967). Secondly, the appellants’ cases do not involve circumstances in which the defense of sovereign immunity was raised.

Appellants contend that the doctrine of sovereign immunity is inapplicable because the State failed to raise the defense by appropriate motion, apd,more importantly, the defense is waived because of the,. Administrative Procedure Act. Md. Code (1957,1971 Repl. Voh) Art. 41.

To appellants’ contention that the defense of sovereign immunity was not properly raised by the appellees below, there are several answers. Maryland Rule 323 a. sets out those defenses which constitute grounds for a preliminary objection. Included among these defenses is that of “[governmental immunity when the party raising the defense is a governmental body or an agency thereof.” Section b. of Rule 323 provides that “[m]otions raising defenses of want of necessary parties, governmental immunity or lack of jurisdiction over the subject matter may be filed at any time. Motions raising any of the other defenses enumerated in section a of this Rule shall be filed before any other pleading is filed, and unless so filed, the defense shall be deemed to have been waived.” (Emphasis supplied). Even if the State had never raised the defense, it could have been raised by the trial court or this Court, on appeal, sua sponte. As Judge Orth said in Board of Trustees v. Ruff supra, at 583, 366 A. 2d at 362:

“It is of no moment that the matter of sovereign immunity was not raised below by the pleadings or otherwise. We made clear in Bd. of Education v. Alcrymat Corp., 258 Md. 508, 516, 266 A. 2d 349, 353 (1970), that .. the law is well established that counsel for the State or one of its agencies may not either by affirmative action or by failure to plead the defense, waive the defense of governmental immunity in the absence of express statutory authorization, or by necessary implication from a statute ....’ We must consider whether the doctrine of sovereign immunity is applicable in this case even though it was not previously raised by the parties.” (Emphasis supplied)

We find no merit in the appellants’ contention that the defense of sovereign immunity was not seasonably interposed.

The appellants have strenuously argued in their brief and in oral argument before us that the adoption of the Administrative Proceedings Act amounted to an implied waiver of the defense of sovereign immunity. They have cited a number of Federal cases to substantiate this position and urge that the Federal Administrative Procedure Act is analogous to that adopted in Maryland and that we should follow the Federal decisions in this area of the law. Unfortunately, the appellants must perforce find themselves “hoist with [their] own petard.” There are two cases which we find to be almost exactly on point and dispositive of the issue in this case.

In United States v. Testan, 424 U. S. 392, 96 S. Ct. 948, 47 L.Ed.2d 114 (1976), the Supreme Court had before it a case in which respondents, government trial attorneys with Civil Service grade GS 13 classifications, requested their employing agencies to reclassify their position to grade GS 14. They contended that their duties and responsibilities met the requirements for the higher grade and were identical to those of other trial attorneys classified as GS 14 in another agency, and under the principle of equal pay for substantially equal work, they were entitled to the higher classification. Their agency and the Civil Service Commission denied reclassification. The attorneys then sued the Government in the Court of Claims seeking reclassification and back pay computed at the difference between salary at GS 13 and GS 14 levels from the date of the first denial. The trial judge denied back pay but found that the Civil Service Commission’s refusal to classify the attorneys to GS 14 was arbitrary. On appeal the attorneys argued that the refusal of the Court of Claims to award back pay left them remediless. Mr. Justice Blackmun speaking for a unanimous Court said at 403, 96 S. Ct. at 955, 47 L.Ed.2d at 124:

“The situation as we see it, is not that Congress has left the respondents remediless, as they assert, for their allegedly wrongful civil service classification, but that Congress has not made available to a party wrongfully classified the remedy of money damages through retroactive classification. There is a difference between prospective reclassification, on the one hand, and retroactive reclassification resulting in money damages on the other ....
Additional remedies of this kind are for the Congress to provide and not for the courts to construct.” See Edelman v. Jordan, 415 U. S. 651, 94 S. Ct. 1347, 39 L.Ed.2d 662 (1974).

In discussing the issue of waiver of sovereign immunity Justice Blackmun opined at 400-01, 96 S. Ct. at 954, 47 L.Ed.2d at 122:

“In a suit against the United States, there cannot be a right to money damages without a waiver of sovereign immunity, and we regard as unsound the argument of amici that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available to redress their violation.”

The Court discussed the effect of the Back Pay Act, 5 U.S.C. § 5596(b), a narrow statute which provides “a monetary remedy for wrongful reductions in grade, removals, suspensions and ‘other unwarranted and unjustified actions affecting pay or allowances [that] could occur in the course of reassignments and change from full-time to part-time work.’ ” Id. at 405, 96 S. Ct. at 957, 47 L.Ed.2d at 125.

The Court stated the rule to be:

“that the federal employee is entitled to receive only the salary of the position to which he was appointed, even though he may have performed the duties of another position or claims that he should have been placed in a higher grade. Congress did not override this rule, or depart from it, with its enactment of the Back Pay Act. It could easily have so provided had that been its intention.” Id. at 406, 96 S. Ct. at 957,47 L.Ed.2d at 126.

The Supreme Court concluded that there was no substantive right in the respondents for back pay for the period of their claimed wrongful classifications.

A case factually even closer to the case sub judice was decided in the United States District Court for the District of Columbia in McNutt v. Hills, 426 F. Supp. 990 (1977). In that case Judge Charles R. Richey had before him an action filed by a blind employee of the Department of Housing and Urban Development who sought declaratory and injunctive relief and back pay, applicable on a department-wide level, as a result of the Department’s alleged failure to meet affirmative obligations toward physically handicapped employees. Cross motions for summary judgment were filed and Judge Richey held that jurisdiction over the case existed pursuant to the provisions for judicial review in the Federal Administrative Procedure Act; that sovereign immunity did not bar the granting of prospective relief, including prospective promotion, but that sovereign immunity would bar the award of back pay.

After a general discussion of the background of the sovereign immunity doctrine, Judge Richey discussed the effect of the doctrine on the plaintiffs request for back pay. He said at 1001:

“Plaintiffs request for back pay pursuant to retroactive promotion would, however, be barred by sovereign immunity under the principles discussed above, unless that immunity is waived. Such a waiver must be explicit: a waiver of the traditional sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ Testan, 424 U.S. at 399, 96 S.Ct. at 954. . . . Preliminarily, it must be noted that neither the APA nor 28 U.S.C. § 1361, the statutes conferring jurisdiction in this case, constitutes a waiver of sovereign immunity for purposes of obtaining a retroactive award of salary. While the APA, as noted above, constitutes a general waiver of sovereign immunity for purposes, of initial access to the Court in cases seeking judicial review of agency action, the APA ‘by itself, is not a waiver of sovereign immunity in suits seeking money damages against the United States.’ Scanwell Laboratories, Inc. v. Thomas, 172 U.S. App. D.C. 281, 521 F.2d 941, 948 (1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976). See Warner v. Cox, 487 F.2d 1301 (5th Cir. 1974).”

In holding that the physically handicapped employees who alleged discrimination could not be awarded back pay to compensate them for the discrimination, Judge Richey, relying principally on Testan, supra, ruled that in the absence of a specific provision waiving sovereign immunity the plaintiffs could not maintain their suit for back pay.

We think in the absence of a specific waiver of sovereign immunity in the Maryland Administrative Procedure Act that that defense is available to the State just as it is to the Federal government under its Administrative Procedure Act. We hold that in the absence of proof of a specific statutory waiver and of a showing that there were funds available from which a monetary judgment could be paid that this suit for back pay is an attempt to recover unappropriated funds from the State Treasury and must perforce be dismissed.

The appellants, as an additional ground for their contentions, suggest that the maxim “Equity regards as done what ought to be done” applies. They suggest, and cite a number of cases in support of the contention that the State ought not to be permitted to be unjustly enriched by having the benefit of appellants’ services at a pay rate less than that to which they are entitled for the work performed. They concede that they have been unable to find a case factually similar to the case at bar in which the maxim has been applied. We have carefully read the cases cited and find them factually inapposite.

The appellants included in their brief cases in which an arbitrator had made an award of back pay in other disputes involving various State departments. None of this evidence was submitted to the trial court in the hearing before Judge Greenfeld. The applicable rule is that the record on appeal is confined to matters that occurred at the time of the hearing before the Arbitrator or before the trial court on appeal. If the matter included in the appellants’ brief was not before the trial court, it may not be considered by us. We are compelled to ignore that portion of the brief which attempts to supplement the record by adding information concerning these prior decisions. See Rule 1028; Community Realty Co, v. Siskos, 31 Md. App. 99, 354 A. 2d 181 (1976). Appellants suggest that the additional information should be considered by us in support of their contention that when an award of back pay was found to be appropriate, the Department of Personnel accepted its implementation as a ministerial duty. We have considered the authorities cited in support of this legal proposition by the appellants but do not find them to be persuasive. We think Williams v. Fitzhugh, 147 Md. 384, 128 A. 137 (1925), is dispositive of this contention. In Williams a teacher sued the Normal School Board of Trustees and the State Superintendent of Schools for breach of contract. The employee argued that he was simply attempting to require the performance by the appellees of a duty imposed on them by law to pay the appellant money appropriated by the Legislature as pay for the position which he held. In rejecting the appellant’s contention on the theory of sovereign immunity because the Board had no means to pay a judgment beyond the amount it received from the State Treasury the Court said:

“Some of the cases which the appellant relies upon were concerned with the enforcement by mandamus of the performance of ministerial duties. If it could be shown that there is in the custody of state officials, not amenable to suit at law, a salary fund to which the appellant is entitled, and the payment of which is a clear legal duty, not involving the exercise of discretion, the writ of mandamus might be available to enforce the asserted right. But that question is not now before us for decision.” Id. at 388,128 A. at 138.

In the case sub judice the appellants have shown neither a clear legal duty on the part of the Department of Personnel to pay back pay under the circumstances of this case, nor have they indicated to the trial court a specific sum or fund from which they are entitled to be paid.

It seems clear from the reading of the record that there was an inordinate delay in the resolution of the appellants’ complaints most of which may be fairly laid at the door of the State. Whether this is likely to lead to sympathetic consideration by the Legislature if the matter is referred to them is, of course, not for us to speculate.

Order of dismissal affirmed.

Costs to be paid by appellants.

      . Md. Code (1957,1971 Repl.Vol.) Art. 41, § 255.

      . Md. Code (1957, 1972 Repl. Vol.) Art. 64A, § 16, provides, in part, that the Secretary has the power “to establish classes and classify therein all positions in the classified service (in the State Government) and_ shall, from time to time, thereafter as may be necessary, establish additional classes and classify therein new positions created, and may combine, alter or abolish existing classes.” See also Md. Code (1957, 1972 Repl. Vol.) Art. 64A, §§ 149.

      . We wish to acknowledge the excellent comment, The State as a Party Defendant: Abrogation of Sovereign Immunity in.Tort in Maryland, 36 Md. L. Rev. 653 (1977).

      . The Eleventh Amendment provides, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any Foreign State.”

      . See Clarke, Municipal Responsibility in Tort in Maryland, 3 Md. L. Rev. 159 (1939); Borchard, Government Inability in Tort, 34 Yale L. J. 1 (1924); Prosser, Law of Torts §§ 131 and 975-87 (4th ed.).

      . That the Legislature is aware of the problems created by the application of the doctrine is evidenced by the recent enactment of Chapter 450 of the Laws of Maryland effective July 1, 1976, which provides that in the absence of a provision to the contrary neither the State, its officers, departments, agencies, boards and commissions, nor any municipal corporation or unit of municipal government, nor any county or unit of county government may raise the defense of sovereign immunity in an action based on a certain written contract brought within one year after the claim arose or the contract was performed whichever is later.

      . The current grievance procedure was promulgated by an Executive Order of Governor Marvin Mandel and was designated as Personnel Policy No. 9 adopted on July 3, 1974. In the 1977 session of the Maryland General Assembly, Senate Bill 677 codifying the State Grievance Procedure was adopted, signed by the Governor and will become effective July 1, 1977. Essentially the statute codifies Personnel Policy No. 9.

      . “For ’tis the sport to have the enginer Hoist with his own petard” Shakespeare, Hamlet III, iv, 206.

      . See Peninsula Methodist Homes v. Cropper. 256 Md. 728, 261 A. 2d 787 (1970). Newark Trust Co. v. Talbot Bank, 217 Md. 141, 141 A. 2d 516 (1958); Johnson v. Long, 174 Md. 478, 199 A. 459, 116 A.L.R. 617 (1938); Blum v. Fox, 173 Md. 527, 197 A. 117 (1923); Reliance Insurance Co. v. Bennington, 142 Md. 390, 121 A. 369 (1923), Sewell v. Slingluff, 62 Md. 592 (1884).