CRIMINAL INJURIES COMPENSATION BOARD v. GOULD
No. 2, September Term, 1974.
Court of Appeals of Maryland
Decided January 16, 1975.
273 Md. 486
Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Harry A. E. Taylor, Assistant Attorney General, on the brief, for appellant.
William C. Miller, with whom were Miller, Miller, Steinberg & Brisker on the brief, for appellee.
O‘DONNELL, J., delivered the opinion of the Court. ELDRIDGE, J., dissents and filed a dissenting opinion at page 521 infra.
The appellee, Joseph D. Gould (Gould), a sixty-three-year-old resident of the District of Columbia and a self-employed cab driver, was abducted at gun point while operating his taxi in the District on April 11, 1970; driven to Clinton, in Prince George‘s County, he was there robbed and shot — both in the neck and the back of his head. He spent more than five months hospitalized as a result of his wounds. Thereafter he filed a claim with the appellant, Criminal Injuries Compensation Board (Board), as an “innocent victim” of crime, for an award allowable under the Criminal Injuries Compensation Act (
The Board in urging us to overturn that decision contends that under the provisions of
Gould leased his taxi at a weekly rate from the Yellow Cab Company of D. C., Inc. (Company) which repaired and mechanically maintained the vehicle. Although he was free to work the days and hours of his choice, he was required to
When Gould‘s claim came before a single member of the Board (
In order to overcome this “abatement” Gould filed a claim with the District of Columbia Bureau of Employees’ Compensation (Bureau). Subsequent thereto both the Bureau1 and the Company2 wrote the Board, advising that Gould was self-employed, not an employee of the Company
In his further efforts to satisfy the objection raised by the Board, Gould next filed a claim with the Workmen‘s Compensation Commission of Maryland (Commission). When the case came before the Commission at a hearing on November 8, 1971, counsel for Gould stipulated as to those facts which concerned Gould‘s self-employment status. Upon the stipulation the Commission found that at the time Gould was shot he was an “independent contractor,” that the Uninsured Employers’ Fund was not involved and disallowed his claim for compensation benefits.
After having unsuccessfully attempted to claim workmen‘s compensation benefits in both the District of Columbia and Maryland, Gould‘s claim was reconsidered by the Board (again by the same single member). The Board‘s resistance persisted however, this time ruling that the stipulation entered into at the Commission hearing, that he was “not an employee in the involved instance constitutes a deliberate lack of cooperation on his part with both the spirit and the letter of our decision of February 10th, 1971.” The Board further noted “it most inappropriate that public monies should be spent to compensate a claimant for injuries received while employed and thereby eligible for other benefits.” The claim was again disallowed.4
“This case is one of several in recent months where companies have attempted to use State funds by way of this program to protect their alleged independent contractors in lieu of workmen‘s compensation insurance. By calling the given individual an independent contractor, these companies have to date successfully avoided the expense and exposure of Workmen‘s Compensation claims. The various times we have ordered the issue to be determined before a Workmen‘s Compensation Commission has resulted in stipulations between representatives of the employer and claimant that he is in fact an independent contractor. This results in said commission being locked into a finding that the claimant is an independent contractor without the issue ever being fully litigated or heard. We find this practice to be reprehensible and an unfair burden on the State.
Accordingly, we find under the laws of the State of Maryland as enunciated in
Article 101, Section 67 , and the cases annotated thereunder, that the claimant is an employee and/or servant; and not anindependent contractor. Therefore, the liability for his injuries must by operation of law, be that of the employer and/or master. Commenting further, we have previously attempted to avoid deciding issues such as the instant case in order not to judge matters usually best left to the powers and jurisdiction of a sister agency. However, in the protection of the State and those citizens eligible for this program, we can no longer permit employers to escape their exposure from the master-servant relationship by referring those injured to this Board, as a substitute therefor.” (Emphasis supplied.)
When Gould‘s appeal came before the Circuit Court the trial judge (Cahoon, J.) held that
REVIEWABILITY
The statute here in question, enacted by Ch. 455 of the Acts of 1968, repealed and re-enacted with amendments by Ch. 401, Acts of 1970, and codified as
“Within thirty days after receipt of the copy of the report containing the final decision of the Board, the Attorney General may, if in his judgment or in the judgment of the Secretary of Public Safety and Correctional Services the award is improper, commence a proceeding in the circuit court of the county or the Supreme Bench of Baltimore City, as the case may be, to review the decision of the Board. Any such proceeding shall be heard in a summary manner and shall have precedence over all other civil cases in such court. The court may, however, take additional testimony, if it so desires. There shall be no other judicial review of any decision made or action taken by the Board, by a member of the Board or by the secretary of the Board with respect to any claim.” (Emphasis supplied.)5
Although statutes relating to remedies and procedure as a general rule are to be liberally construed with a view toward the effective administration of justice, they are not to be given such a construction as will defeat or frustrate the legislative intention. Commercial Credit Corp. v. Schuck, 151 Md. 367, 134 A. 349 (1926).
When two statutes relate to the same general subject
Similarly controlling is the premise that where there is a specific enactment and a general enactment “‘which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.‘” Henry v. State, 273 Md. 131, 328 A. 2d 293 (1974); Maguire v. State, 192 Md. 615, 623, 65 A. 2d 299, 302 (1949). See also 73 Am.Jur.2d Statutes § 416 (1974); 82 C.J.S. Statutes § 369 (1953).
We must also consider the object and purpose to be attained by
When, in 1968, the General Assembly enacted the Criminal Injuries Act (
The Act provides not only that the victim, but in the event of his death, his surviving spouse, children or other dependents may be eligible for awards; it incorporates a good-Samaritan concept by providing for compensation if the victim‘s injury or death resulted from apprehending a criminal or attempting to prevent a criminal act (
Funds for the payment of the awards made by the Board must be appropriated by the General Assembly, although they are financed in part by an increase in the assessment of court costs upon convictions for criminal offenses (
It has been suggested that opposition to judicial review was based upon the concept that the programs are ex gratia (as it is declared to be in New York and in Great Britain), with benefits conferred as a favor rather than as a matter of right, but that this doctrine has not stood the test in Great Britain “where the writ of sovereign grace runs on a smoother track.” It has further been observed that “[o]pposition to the arbitrariness implicit in the New York and Maryland position should not obscure the danger that
The General Assembly, conceding an inability to ameliorate to any degree the threat of violent crime, and undertaking to assume the consequences of such crime as a public burden, on the ground of “moral responsibility,” in enacting
It was with this historical and factual background that
One of the primary rules concerning statutory construction is that the General Assembly in enacting legislation does so with a full knowledge as to prior and existing law and judicial decisions with respect to such law. See Harry Berenter, Inc. v. Berman, 258 Md. 290, 265 A. 2d 759 (1970); Capital Park and Planning Comm‘n v. Silkor Corp., 246 Md. 516, 229 A. 2d 135 (1967); Giant Food, Inc. v. Gooch, 245 Md. 160, 225 A. 2d 431 (1967); St. Joseph Hospital v. Quinn, 241 Md. 371, 216 A. 2d 732 (1966); Gibson v. State, 204 Md. 423, 104 A. 2d 800 (1954).
As another reason demonstrative of an intent to exempt such proceedings from the applicability of the Administrative Procedure Act, it could be argued with some force that since no hearing before the Board is required under
Not only did the General Assembly intend to place the decisions and actions of the Board outside the scope of the review permitted under the Administrative Procedure Act,
The right to an appeal is not a right required by due process of law, nor is it an inherent or inalienable right. Lindsey v. Normet, 405 U. S. 56 (1972); Griffin v. Illinois, 351 U. S. 12 (1956); Brown v. State, 237 Md. 492, 498-99, 207 A. 2d 103, 108 (1965); Winkler v. State, 194 Md. 1, 16-17, 69 A. 2d 674, 679-80 (1949), and cases therein cited. See also 16 Am.Jur.2d Constitutional Law § 584 (1964); 2 Am.Jur.2d Administrative Law § 557 (1962); 4 Am.Jur.2d Appeal and Error § 1 (1962). An appellate right is entirely statutory in origin and no person or agency may prosecute such an appeal unless the right is conferred by statute. See Lohss v. State, 272 Md. 113, 116, 321 A. 2d 534, 536-37 (1974); Mace Produce Co. v. State‘s Attorney, 251 Md. 503, 508, 248 A. 2d 346, 350 (1968); Subsequent Injury Fund v. Pack, 250 Md. 306, 309, 242 A. 2d 506, 509 (1968); Switkes v. John McShain, Inc., 202 Md. 340, 343, 96 A. 2d 617, 619 (1953). See also Ex parte Abdu, 247 U. S. 27 (1917); 2 J. Poe, Pleading and Practice § 826 (Tiffany ed. 1925). If appellate review is not permitted unless expressly granted by statute, as was held in Urbana Civic Ass‘n, Inc. v. Urbana Mobile Village, Inc., 260 Md. 458, 460-61, 272 A. 2d 628, 630 (1971), a fortiori, there is equally no right of appeal if that right is expressly excluded by statute.
“The Legislature cannot, of course, interfere with the judicial process by depriving litigants from raising questions involving their fundamental rights in any appropriate judicial manner, nor can it deprive the courts of the right to decide such questions in an appropriate proceeding.” Schneider v. Pullen, 198 Md. 64, 68, 81 A. 2d 226, 228 (1951).
Notwithstanding the clear expressed intention by
Chief Judge Hammond, who delivered the majority opinion in Insurance Comm‘r v. National Bureau of Casualty Underwriters, supra, stated:
“The courts have been alert to exercise their residual power to restrain improper exercises of
administrative powers whether judicial or legislative in nature. If the legislature has not expressly provided for judicial review, a court will ordinarily utilize its inherent powers to prevent illegal, unreasonable, arbitrary or capricious administrative action. In Heaps v. Cobb, 185 Md. 372, 379, this Court said: ‘The legislature is without authority to divest the judicial branch of the government of its inherent power to review actions of administrative boards shown to be arbitrary, illegal or capricious, and to impair personal or property rights; * * *,’ and then quoted the opinion in Hecht v. Crook, 184 Md. 271, 280: ‘Courts have the inherent power, through the writ of mandamus, by injunction, or otherwise, to correct abuses of discretion and arbitrary, illegal, capricious or unreasonable acts; but in exercising that power care must be taken not to interfere with the legislative prerogative, or with the exercise of sound administrative discretion * * *.‘”
248 Md. at 300, 236 A. 2d at 286.
More recently, in Baltimore Import Car Service v. Maryland Port Authority, supra, Judge Singley, for the Court, wrote:
“[I]t is equally well settled that when the statute creating an agency makes no provision for judicial review of the agency‘s determination, courts will act where a decision is not supported by facts, or where an action is not within the scope of delegated authority, or is arbitrary, capricious or unreasonable. Board of Education of Carroll County v. Allender, 206 Md. 466, 112 A. 2d 455 (1955); Heaps v. Cobb, 185 Md. 372, 380, 45 A. 2d 73 (1945); Hecht v. Crook, 184 Md. 271, 280-81, 40 A. 2d 673 (1944). This is the modern view, as even Professor Davis reluctantly concedes, 4 Davis
Administrative Law Treatise § 28.21 (1958) at 112; Berger, “Administrative Arbitrariness and Judicial Review,” 65 Columbia L. Rev. 55 (1965); Jaffe, “The Right to Judicial Review,” 71 Harv. L. Rev. 401, 769 (1958); and see also, Cohen, “Some Aspects of Maryland Administrative Law,” 24 Md.L.Rev. 1, 35-38 (1964) and Oppenheimer, “Administrative Law in Maryland,” 2 Md.L. Rev. 185, 208-10 (1938).” 258 Md. at 342, 265 A. 2d at 869-70.
The rule announced in Hecht v. Crook, supra, that in the absence of any statutory provision for an appeal such review by the courts may be “through the writ of mandamus, by injunction or otherwise” was not only restated in Heaps v. Cobb, supra, but reiterated in Hammond v. Love, 187 Md. 138, 49 A. 2d 75 (1946); Brashears v. Lindenbaum, supra; Gianforte v. Board of License Comm‘rs, supra; Town of District Heights v. County Comm‘rs, supra; Insurance Comm‘r v. National Bureau of Casualty Underwriters, supra.
Where, as here, no appeal was provided by statute and the Administrative Procedure Act was inapplicable, we held in Capital Park and Planning Comm‘n v. Rosenberg, 269 Md. 520, 307 A. 2d 704 (1973), that relief by way of mandamus was properly invoked where the withholding of approval of a preliminary subdivision plan was shown to have been arbitrary and capricious. Similarly, in Department of Health v. Walker, supra, judicial review by way of mandamus was held proper where there was “no statutory provision for hearing or review and where public officials were alleged to have abused the discretionary powers reposed in them,” and there had been an arbitrary denial of the issuance of a sewage disposal permit. In Hammond v. Love, supra, this Court held that relief by way of mandamus was appropriate where election supervisors, acting as a quasi-judicial body, misconstrued the law and their own statutory powers; and that such illegal action was reviewable without being characterized as “arbitrary.” In Heaps v. Cobb, supra, relief by way of mandamus was
In addition to relief by mandamus, resort to relief by way of certiorari has been held appropriate where an inferior tribunal, whether created by a public or private law, acting in a quasi-judicial capacity has undertaken to act contrary to law or beyond the scope of its jurisdiction and the lawfulness of such action could not be inquired into upon appeal. State v. Jacob, 234 Md. 452, 199 A. 2d 803 (1964); Kalis v. Brown, 199 Md. 498, 87 A. 2d 163 (1952); Johnson v. Board of Zoning Appeals, 196 Md. 400, 76 A. 2d 736 (1950); Riggs v. Green, 118 Md. 218, 84 A. 343 (1912); Williamson v. Carnan, 1 G. & J. 184 (1828); 2 J. Poe, Pleading and Practice § 723 (Tiffany ed. 1925).
Maryland Rule K 41 defines “inferior tribunal” to include the official or body, public or private, whose proceedings are sought to be reviewed.
In Riggs v. Green, supra, although it was concluded that no appeal would lie from the issuance of a writ of certiorari, it was held that the writ had been properly issued to question the regularity of the proceedings by which the Board of School Commissioners, acting in a quasi-judicial
Judge Burke, who delivered the opinion of the Court, stated:
“No appeal from the decision of the board is provided by law. In such a situation, if the procedure adopted by the board is irregular, or illegal, the teacher has a right to have that procedure reviewed and corrected by certiorari proceedings.
In Williamson v. Carnan, 1 G. & J. 196, Chief Judge Archer announced the following principles which he said were adjudged and settled by the Court:
One. That every inferior jurisdiction, whether created by a public or a private law, is subject to have its proceedings inspected either by appeal, or by certiorari and mandamus, where such jurisdiction acts judicially. 1 Salk. 146; Rex v. Inhabitants, 1 Ld. Ramy. 580. They would be coerced to perform their duties, and restrained and confined within their proper limits as prescribed by law.
Second. That where these jurisdictions act in a summary manner, or in a new course different from the common law, a certiorari is the peculiar and appropriate remedy; as in such a case, a writ of error will not lie. Groenvelt v. Burwell, 1 Salk. 263 Com. Rep. Israel v. Allen, decided in Baltimore County Court.
Three. That a certiorari does not go to try the merits of the question, but to see whether limited jurisdictions have exceeded their bounds.
In Williamson v. Carnan, supra, certiorari was held proper to order the Levy Court not to illegally close a road. See also Swann v. Mayor & Common Councilmen of Cumberland, 8 Gill 150 (1849), holding that certiorari should have been granted to determine whether the council had acquired approval to tax the citizenry to pay for a street improvement under a statute which specified the requirements for “sufficient approval.”10
See as well State v. Jacob, 234 Md. 452, 199 A. 2d 803 (1964), in which this Court reversed the denial of certiorari by the lower court where a review was there sought to determine whether a justice of the peace had, by an erroneous application of the law, exceeded his jurisdiction in granting “probation without verdict.” Although the decision was based on the issue of “jurisdiction, rather than of mere irregularity in the proceedings,” it was recognized that “certiorari may be invoked to ascertain whether an inferior tribunal has transcended its limited powers.”
In England under their Criminal Injuries Compensation Scheme,11 providing for “ex gratia” compensation to the victims of crime and those injured by criminal violence, review by way of certiorari to test the Board‘s interpretation of the provisions of the Scheme has been regularly recognized notwithstanding the provision—similar to
There is a dearth of judicial authority under the New York statute which was the model for
When Gould docketed his “appeal,” invoking
Although from our holdings in Heaps v. Cobb, supra, and in Johnstown Coal and Coke v. Dishong, 198 Md. 467, 84 A. 2d 847 (1951), it would appear that the impairment of
There are benefits, privileges, mere licenses and entitlements which, in our modern society, are awarded by governmental action, not as a matter of right but through the exercise of a sound discretion. Notwithstanding statutory provisions to the contrary, these “grants” have been held to be within the ambit of judicial review of the action of the agencies created to administer them.
In Graham v. Richardson, 403 U.S. 365 (1971), the United States Supreme Court, in holding that state statutes which denied welfare benefits to certain aliens were in violation of the equal protection clause, stated: “[T]his Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.’ Sherbert v. Verner, 374 U.S. 398, 404 (1963); Shapiro v. Thompson, 394 U.S. at 627 n. 6; Goldberg v. Kelly, 397 U.S. 254, 262 (1970); Bell v. Burson, 402 U.S. 535, 539 (1971).” 403 U.S. at 374.
In Goldberg v. Kelly, 397 U.S. 254 (1970), the Court held that welfare benefits were a matter of “statutory entitlement for persons qualified to receive them,” and procedural due process was applicable to the termination of such benefits.
“The constitutional challenge cannot be answered by an argument that public assistance benefits are ‘a “privilege” and not a “right.“’ Shapiro v. Thompson, 394 U.S. 618, 627 n.6 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U.S. 513 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U.S. 551 (1956). (9. See also Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117 (1926) (right of a certified public accountant to practice before the Board of Tax Appeals); Hornsby v. Allen, 326 F.2d 605 (C.A. 5th Cir. 1964) (right to obtain a retail liquor store license); Dixon v. Alabama State Board of Education, 294 F.2d 150 (C.A. 5th Cir.), cert. denied, 368 U.S. 930 (1961) (right to attend a public college).) The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss,’ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient‘s interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961), ‘consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ See also Hannah v. Larche, 363 U.S. 420, 440, 442 (1960).” 397 U.S. at 262-63.
“(8.) It may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property. It has been aptly noted that ‘[s]ociety today is built around entitlement. . . . to aid security and independence. Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen, routes for airlines and channels for television stations; long term contracts for defense, space, and education; social security pensions for individuals. Such sources of security, whether private or public, are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully deserved, and in no sense a form of charity. . . .‘” 397 U.S. at 262, n. 8,
citing Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965). See also Dandridge v. Williams, 397 U.S. 471 (1970), recognizing the right of judicial review concerning eligibility for welfare benefits where Maryland had adopted a “maximum grant” regulation based upon a “standard of need” of eligible family units and fixed a ceiling of $250 per month.
The right to a building permit has been held reviewable to determine whether an agency acted unlawfully or arbitrarily. Burns v. Mayor & City Council of Midland, supra; Board of Zoning Appeals v. Meyer, supra; Heath v. Mayor & City Council of Baltimore, supra. See also Department of Health v. Walker, supra, involving denial of sewage disposal permit. Although a liquor license is held to be a privilege and not a property right, arbitrary or illegal decisions of the agencies commissioned to issue them are not beyond review. See Liquor License Comm‘rs v. Leone, supra; Gianforte v. Board of License Comm‘rs, supra; Brashears v. Lindenbaum, supra;
Since we have held that disability pension laws are by nature “remedial legislation,” Saxton v. Board of Trustees, 266 Md. 690, 296 A. 2d 367 (1972), and since the provisions of
As it is aptly pointed out in People ex rel Heydenreich v. Lyons, 374 Ill. 557, 562-63, 30 N.E.2d 46, 50 (1940), although
We conclude that once a claimant, such as Gould, met the statutory qualifications set forth in
Although we disagree with the conclusions of the trial court that
Since Gould‘s “appeal” asserted arbitrary, illegal, capricious and unreasonable action by the Board, we conclude, as we here interpret
Although Gould‘s application for judicial review, under
“Where there has been a compliance with the substance of the requirements of statutes or rules and the other parties have not been prejudiced, technical irregularities cannot be made the basis for depriving persons of the opportunity to assert their legal rights.” Hertelendy v. Montgomery County, 245 Md. 554, 565, 226 A. 2d 672, 679 (1967), quoting with approval from Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 61, 225 A. 2d 294, 299-300 (1966). See also Board of County Comm‘rs v. Kines, 239 Md. 119, 125, 210 A. 2d 367, 370-71 (1965); and Irvine v. Montgomery County, 239 Md. 113, 117, 210 A. 2d 359, 361 (1965). Since the “appeal” was docketed upon the assurance of counsel for the Board that its decision was subject to an appeal and the Board here concedes that by its concurrence it is estopped to deny that at least a minimum judicial review exists, there was, without prejudice to the Board, a substantial compliance by Gould with the procedure for obtaining judicial review of the Board‘s action and any technical irregularity by captioning his application as an “appeal” should not be held to be a basis for having deprived
The office of mandamus, as generally used, is to compel inferior tribunals, public officials or administrative agencies to perform their function, or perform some particular duty imposed upon them which in its nature is imperative and to the performance of which duty the party applying for the writ has a clear legal right. Miller v. City of Baltimore, 262 Md. 423, 426, 278 A. 2d 61, 63 (1971), citing from George‘s Creek Coal & Iron Co. v. Allegany County Comm‘rs, 59 Md. 255, 259 (1883), where, however, the acts and duties necessarily call for the exercise of judgment and discretion on the part of such officials mandamus will not lie to direct the manner in which such discretion shall be exercised. County Council v. Egerton Realty, Inc., 217 Md. 234, 140 A. 2d 510 (1958); Hillyard v. Chevy Chase Village, 215 Md. 243, 137 A. 2d 555 (1958); Town of District Heights v. County Comm‘rs, supra; Walter v. Montgomery County, 180 Md. 498, 25 A. 2d 682 (1942).
On the other hand, the object of the writ of certiorari is not to authorize the court to decide the case on its merits, but merely to determine whether the inferior tribunal has proceeded in a summary manner and in a course contrary to the law or in excess of its jurisdiction. Kalis v. Brown, supra; Johnson v. Board of Zoning Appeals, supra; Swann v. Mayor & Common Councilmen of Cumberland, supra; Williamson v. Carnan, supra.
In view of the discretion still remaining in the Board under
In Reg. v. Criminal Injuries Comp. Bd., ex parte Lain, supra, Lord Parker, C. J., in holding that the Queen‘s Bench “has jurisdiction to inquire into the decision of the board in order to see whether there is on the face of the record any error of law . . . .” stated:
“Finally, it is to be observed that the remedy [by certiorari] has now been extended, [citations omitted] to cases in which the decision of an administrative officer is only arrived at after an inquiry or process of a judicial or quasi-judicial character. In such a case this court has jurisdiction to supervise that process.
We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely within the jurisdiction of this court. . .” [1967] 2 Q.B. at 882, [1967] All E.R. at 778.
When Gould‘s claim was disallowed on January 31, 1972, upon “reconsideration” by a single commissioner, it was found that his stipulation before the Maryland Workmen‘s Compensation Commission that he was not an employee “constitutes a deliberate lack of cooperation on his part with both the spirit and letter of our decision of February 10th, 1971” [directing the claimant to exhaust his compensation remedies]. When the full Board on June 14, 1972, upheld the rejection of the claim by the single commissioner, although concluding that Gould was “an innocent victim of a crime” and that “serious financial hardship is determined” not only found that the stipulation “locked the Commission into a finding that the claimant is an independent contractor without the issue ever being fully litigated or heard“—a practice the Board found “to be reprehensible and an unfair burden on the State” but, notwithstanding the decision of the Maryland Workmen‘s Compensation Commission nonetheless found under the provisions of ”
Section 12 (a), concerning “cooperation,” reads as follows:
“No award shall be made unless the Board or Board members, as the case may be, finds that (1) a crime was committed, (2) such crime directly resulted in personal physical injury to, or death of the victim, and (3) police records show that such
crime was promptly reported to the proper authorities; and in no case may an award be made where the police records show that such report was made more than forty-eight hours after the occurrence of such crime unless the Board, for good cause shown, finds the delay to have been justified. The Board, upon finding that any claimant or award recipient has not fully cooperated with all law enforcement agencies, may deny or withdraw any award, as the case may be.” (Emphasis supplied.)
An independent contractor is not an “employee” entitled to Workmen‘s Compensation benefits under the provisions of
Of the several criteria to be applied in determining the relationship, the right to control the worker in the performance and manner of doing the work is the most decisive test. Thompson v. Paul C. Thompson & Sons, 258 Md. 391, 395, 265 A. 2d 915, 917 (1970); Anderson Nursing Homes v. Walker, 232 Md. 442, 444, 194 A. 2d 85, 86 (1963).13
Even upon an appeal to the courts ” ‘where the terms and manner of employment are undisputed, the Court should determine as a matter of law whether the injured workman was an employee or an independent contractor . . . .‘” Charles Freeland & Sons v. Couplin, 211 Md. 160, 168, 126 A. 2d 606, 611 (1956), quoting Williams Constr. Co. v. Bohlen, 189 Md. 576, 579, 56 A. 2d 694, 695 (1948).
Where, as here, it appears that the facts concerning Gould‘s employment status were undisputed—conceded by stipulation—it would exalt form over substance to require that the issue be nonetheless litigated by an evidentiary hearing.14 The Commission—as did the Bureau—could have made its ruling upon the documentary evidence submitted with the claim. See Hathcock v. Loftin, 179 Md. 676, 22 A. 2d 479 (1941).15
What Judge Smith said for the Court in Mayor v. Shearwater Sailing Club, 265 Md. 280, 288 A. 2d 887 (1972), seems here to be particularly applicable. He stated:
“Where a statute establishes a fact-finding body or commission and it has jurisdiction over the parties and the subject matter its decisions on questions of fact are conclusive and final in the absence of fraud, unless an appeal is provided by law to some appellate or supervisory tribunal. Schluderberg, Etc. Co. v. Baltimore, 151 Md. 603, 613-14, 135 A. 412 (1926).” 265 Md. at 285, 288 A. 2d at 891.
See also 2 Am.Jur.2d Administrative Law § 486, at 293-94 (1962).
Since the Commission had jurisdiction over Gould‘s status and did, upon the undisputed facts, determine as a matter of law that he was an “independent contractor,” that decision was subject only to appellate review in the courts as provided by
Although the doctrine of res judicata has been held not to apply to decisions of administrative agencies, see Gaywood Ass‘n v. M.T.A., 246 Md. 93, 99, 227 A. 2d 735, 738 (1967); see also L. Cohen, Some Aspects of Maryland Administrative Law, 24 Md.L. Rev. 1, 20-24 (1964), we here conclude that the decision by the Commission that Gould was an “independent contractor” was conclusive and not subject to collateral attack by the Board upon its own initiative. When the Board, contrary to the Commission‘s decision, undertook to make a finding that Gould was in fact an “employee,” it clearly arrogated unto itself a function reserved unto the courts and transcended the power vested in it as an administrative agency.16 Its attempt to redetermine his status was clearly erroneous as a matter of law.
When the Board undertook to reject Gould‘s claim because of a deliberate “lack of cooperation on his part,” it undertook
All policemen, without regard to rank, have been held to be “law enforcement officers.” Frazier v. Elmore, 180 Tenn. 232, 173 S.W.2d 563 (1943). Similarly, an FBI agent is held to be a “law enforcement officer.” Otten v. United States, 210 F. Supp. 729 (S.D. N.Y. 1962). In Pratt v. State, 9 Md. App. 220, 226, 263 A. 2d 247, 250 (1970), an officer commissioned by the governor to protect corporate mercantile establishments was held to be a “law enforcement officer.” The Bureau of Motor Vehicles of New York has been held not to be a “law enforcement agency” which might invade the secrecy of Grand Jury proceedings. See In re Special Report of Grand Jury, 192 Misc. 857, 77 N.Y.S.2d 438 (Erie Co. Ct. 1948). Similarly, a former member of a Grand Jury has been held not to be a “law enforcement agent” privileged from divulging names of those who had given him information concerning gambling. See In re Schwartz, 133 N.J.L. 79, 42 A. 2d 564 (1945). Since the term was obviously intended to include the police, prosecutors and arguably, the courts and even the Grand Jury, the Board in applying the term to itself as the agency empowered to administer the Act clearly made an erroneous interpretation of law.
Although, concededly, as the Board argues, there is an implied requirement of cooperation on the part of the claimant in that he must seasonably file his claim and file supporting data, there is no requirement anywhere in the article that he must successfully litigate a claim for workmen‘s compensation benefits, nor by filing such claim satisfy transitory subjective standards of the Board. We
Mistaken interpretations of law, however honestly arrived at, are held not to be within the exercise of sound administrative discretion and the legislative prerogative, but to be arbitrary and illegal. Dept. of Health v. Walker, supra; Hammond v. Love, supra; McNulty v. Board of Election Supervisors, supra. See also Severn v. Baltimore, supra; and Walter v. Board of County Comm‘rs of Montgomery County, 179 Md. 665, 22 A. 2d 472 (1941).
Where, as here, the Board usurped the power of the courts and exceeded its jurisdiction in redetermining Gould‘s status as an independent contractor and as well erroneously applied unto itself the provisions of
Order of the Circuit Court for Montgomery County affirmed; costs to be paid by the appellant.
Eldridge, J., dissenting:
With respect to the basis for the circuit court‘s decision, I believe that where no constitutional right or issue of procedural due process is involved, and where no pre-existing personal or property right is present, the Legislature may constitutionally couple the award of a gratuity with a condition precluding judicial review. Therefore, I would reverse.