*1 conclusion, there was a failure to disclose the In we find survey charge appear would picture full to the client. really not the client which was true. representation Court, by the practice not be condoned This can may in a regardless the client have received what benefits fee, speedier or even the additional service reduced Blanchard, liability part of Mr. protection of on attorney be reduced to professional should not conduct advising type the client. without this of rebate strongly feel and recommend that disbarment We severe, certainly practices but such suspension would too be respondent stopped and should conclude should day 1975, by July, reprimanded. It is therefore this 15th George’s County, Maryland, for Prince the Circuit Court opinion ORDERED, copy the Clerk this Court be mailed recommendation compliance with Appeals in Rule BV Maryland Court Procedure. Rules of MOBERLY HERBOLDSHEIMER Term, 209, September 1974.] [No. 24, 1975.
Decided October *2 reargued C. argued and before The cause was Murphy, Eldridge J., Digges, Levine, Smith, Singley, JJ. O’Donnell, Geppert and William H. Paye, whom were S. with Robert brief, appellant. Geppert, Paye& McMullen on person. proper Herboldsheimer Robert Murphy, C. opinion of the Court. J., delivered Smith, J., filed C. J., dissent and J., and Murphy, O’Donnell, page J., at concurs in which opinion O’Donnell, dissenting 228 infra. (Herboldsheimer),
Appellee, Herboldsheimer Robert columnist, desirous of newspaper Allegany County Moberly appellant, A. salary John ascertaining Cumberland, Memorial (Moberly), as Director Governors of which is the Board of corporate name of Hospital), (the Hospital of Cumberland the Memorial Hospital. relative information certain provisions of Accordingly, sought to invoke the he 76A, Vol.) originally enacted (1957, Repl. Code Chapter *3 Acts of relative 698 of the denied on the requested The information was information. Hospital subject He then ground is not to the act. that the Maryland. It was an in the District Court of instituted action there held: circumstances, conflicting all of the and
“Under Hospital the involved manner which the has, authority it exercises what this Court is been constrained to hold that it has not shown that agency Hospital City of Cumberland, purview 76A, within the of Article that, therefore, plaintiff and is not entitled to sought.” the relief Allegany County. It appealed
He to the Circuit Court for requested and directed that information reversed Hospital. by Moberly We as Director made available Hospital’s granted request at the the writ of certiorari question might we address ourselves order that Hospital agency City is an of Cumberland whether the and thus covered the act. We conclude that it is. relying upon Hospital, reasoning put such as that by Judge in Kerr
forward Chesnut v. Enoch Pratt Free 1944) 2d 212 (D. rev’d 149 F. Library, Supp. 514 Md. 54 F. (4th Cir.), (1945), cert. denied 326 U. and S. Norris v. Council, (D. 1948), Mayor Supp. 78 F. subject by public author it is not to control claims that private corporation. After the matter ity and thus is a reargument initially argued us we directed before paid Constitu particular with attention to be III, provides pertinent part: Article 48 which tion “Corporations may be formed under laws, by special but Act, except shall not be created municipal purposes except in cases where exist, no providing laws for the creation of general character, of the same as corporation proposed created; to be incorporation passed in violation of this section shall be void.”
We also directed attention to a exempting the liability from tort to which we shall later allude. Chapter 411 of the Acts of 1927 authorized a bond issue in $500,000 by amount of Council of $400,000 Cumberland. of this issue was to be used “for the purpose taking title to land and the erection or operation public general maintenance hospital of a in or City Cumberland, near the Maryland, to be known as the Memorial Cumberland, Maryland, under direction of the Board of Governors of said [tjhereinafter provided . . . .” The $100,000 of that bond paid issue was to Allegany Hospital of Sisters Charity, Inc. For that reason the propriety of this bond issue was before the Court Finan v. M. & C.C. of Cumberland, 154 Md. *4 141 A. (1928), in which opinion Judge Chief Bond Hospital described Memorial as “a municipal hospital in Cumberland,” although the status of Hospital Memorial was not before the Court.1 opinion upon foundation, however, may challenged This 1. is not based such a it be significant part “a that litigants validity that the at that time the of that Allegany Hospital, by of the bond issue destined for called this Court private eleemosynary corporation,” challenge propriety but did not the of part Hospital. of the bond issue destined for Memorial From this one they regard Hospital could infer that similar to did not Memorial as an institution Allegany Hospital. purpose “for original act 6 of Section building of a and securing the erection suitable of land and operation of Memorial and said the maintenance [t]hereby of said the Board of Governors [was] Mayor together with “the prominent citizens Five created.” of of and the President the Board City of of Cumberland County Allegany County [were to] Commissioners members, exception “with comprise said Board.” Its the said of the Mayor and President the said of Cumberland County Allegany County Board of Commissioners [were age they reach the retain office until sh[ould] to] specified during good It was sixty-five years or behavior.” Mayor of and “of Cumberland that the terms Allegany County Commissioners of the President of the County ex officio members of said Board be as to] [were respective term of office and no co-extensive with their longer.” power have
Under “said Board of Governors to] [was regulations duty to make all rules and and was be its [it to] necessary operation time for deemed from time to .” Hospital. . . maintenance of said original stated 13 of the “that
Section liable in Cumberland be suit Council of shfould] negligence brought against of the it or reason agent engaged in employee, and about servant or operation hospital.” of said erection, maintenance Assembly again regular General At session the its next Hospital. It then the matter addressed itself to By Chapter of 1929. that act 6 was 515 of Acts enacted providing that the with amendments repealed and reenacted hereby made and constituted Board Governors “[t] style corporate by name and body politic Hospital of Memorial Board of Governors perpetual Cumberland,” it name was to “have which capable succession,” with the “shfould] seal, sued, and the same at to have common to sue and be . pleasure break . . .” It was “to have to alter and/or powers it, powers granted and all such [t]herein manage operate necessary proper sh[ould] *5 public general hospital, fully said and/or a if as as incorporated purposes provisions for such under the of the Maryland.” change Public General Laws of No made in named in or in provisions the Board the statute the relative change the A was made in to Board. 13 so that the Board of § exemption liability. added to the from Governors was tort Ill, (1851) provided Constitution Art. that § laws, m[ight] be “[corporations general formed but by special act, except municipal not be created for shfould] where, judgment purposes, and cases in the of the Legislature, object the not be c[ould] Ill, general (1864) Art. attained under laws.” Constitution However, effect. 51 was to same Constitution language quoted Ill, 48, in we earlier addition to originally adopted opinion, as that “as soon as Constitution, adoption of it practicable, after th[at] Governor, appoint duty of three be the sh[ould] Law, duty be, persons learned whose sh[ould] general Laws, providing prepare for creation of drafts m[ight] for corporations, proper, in such as cases cases, general Law . . .” where be made . c[ould] history Maryland general as law See France, Principles Corporation forth in J. set 1914) points prior (2d The author Law ed. 27. out 1798) (Chapter 24 of year Vestry Act the Acts 1838 the Corporations (Chapter 11 Religious Act Acts and the only free 1802) steps “were taken the direction of However, incorporation.” “[b]y Act ch. obtaining manufacturing charters persons desirous of incorporate permitted under a purposes were and 1868 so purposes were added between 1838 law.” New date, incorporation law “at the latter following descriptions: provided for associations dramatic, scientific, literary, moral, ‘for Associations purpose purpose or for agricultural charitable or engine company, or fire volunteer forming uniformed beneficial, benevolent or company, company, land hose building associations; cemetery companies; society; musical religious companies; mining companies; manufacturing “obtaining oil companies; companies for societies; telegraph ” boring colleges.’ Then, otherwise”; universities and it, year *6 puts author a new order “[w]ith began.” He further states: general Scope plain of the law. 21. The
“§ municipal was to reserve intent of the Constitution possibly banking corporations special for and dispense in charters, with the latter ‘all where a law can be made.’ But other cases place, realized. In the first this intent was not legislatures not, in succeeding 1868 did that of general law, keep step broadening scope place, need; and in the second the Court with the Appeals grant special powers decided that the general law, corporation a of class covered 1908, in special The Act of makes a charter valid. incorporation permitting for lawful addition to right proper purpose, annexes the to obtain all legislative powers. Accordingly, necessity exist; special rarely one or charter can necessity unnecessarily granted is void. The test of special are act is whether results law.” Id. at 28-29. obtainable added.) (Emphasis here this must be concerned with constitutional
We
in
applied
question
because of that
provision as
if
are
principle of
under which
there
two
familiar
law
placed upon a
can be
constitutional
constructions that
official,
statute,
public
or an act of a
one of
provision, a
legality
will
and effectiveness and
which
result
illegal
nugatory, we must
will make it
other
which
to avoid
as to render it effective
so as
construe it so
whenever that course is
conflict with the Constitution
reasonably possible.
Miller,
54,
v.
Davidson
276 Md.
344 A.
Acting Dir.,
Walker,
(1975);
Dep’t
2d 422
P.
F. & v.
271
711, 719, 720,
(1974);
Land v.
Md.
Deems v. Md. Md. 231 Western (1967). we Accordingly, under the must address Constitution validly this created for ourselves to whether 218 municipal purposes. not, If it was it than then follows municipal purpose
that it must have been created for a agency Cumberland, thereby it is hence bringing purview within the information of the Code. sections which have construed this constitutional cases exception, arisen,
provision have without relative prior to the extensive revision of the created 1908 law 1908. It revision which was 23, in effect at the time of the embodied Code corporation. creation Co., A.
In Reed Balt. & Guarantee Trust (1890), was filed to the Baltimore Trust a bill restrain & trustee, receiver, acting assignee, from Guarantee Co. administrator, fiduciary executor, güardian, any other *7 record, capacity, the orders or decrees of courts of as under charged to do under its charter. The bill it authorized incorporation company by a at the time Assembly general special a law existed act the General of companies. providing trust Our the creation of for any inquired as to whether “there predecessors [was] corporation rights powers, providing for a with general Act granted by special Act to similar to those and functions appellee.” They “be that the answer to observed th[at] stating provisions its in some of the of charter found powers,” saying: relating to trust its power corporation accept “They are, has to ‘that the every description, which shall and execute trusts any person corporation, or to be entrusted it of record. by the court order “ power appoint ‘Any have the court shall infant, a lunatic. guardian or committee of money lying Any may direct State court deposited awaiting be with the court distribution ” Id. company.’ at 533. corporation was Judge this Court that the Briscoe stated for administrator, executor, “expressly authorized to as receiver, guardian, assignee, the incomes collect estates, custody legal and take of wills and documents.” Moreover, acting its charter further that when fiduciary capacity capital property such a stock and its paid security should taken and considered as the required by performance duties, law for the faithful of its security required and no bond or other should of it. It was legal depository public made the for funds. It was authorized deposit company, act as safe to form a board of arbitration, and to act as a arbitrator. The Court said: will general
“It at once be seen that there is no conferring rights, law such or under which a company could have been formed with similar powers, granted by special as were Act to this company; and it cannot be considered a general any corporation the same character as which could have been formed under the Act of 1876. There is no
formation deposit companies, of trust and or for a deposit company, Incorporation powers Law of this State with similar to those granted company. Hence, to this way there was no corporate rights which such powers could conferred, have been except by special Act Legislature. Georgetown This court held in College Browne, v. 450; Build. Asso. Lowdermilk, 175; 50 Md. Ellicott Speed Mach. v.Co. [72 Md.] that a capacities could not act executor, administrator, guardian, trustee, etc., express special without authority. A trust *8 company, then, general formed under the incorporation State, laws of the purposes for the any included twenty-one within enumerated provided by classes Code, the (Act Art. 23 of 1876), powerless would to exercise such corporate powers rights and granted as were and conferred company by to this special Act of the Legislature, special rights, because powers those and brought franchises could not be within the provisions general statute, granted and
220 incorporation
conferred under the law of Id. the State.” at 534-35. & Trust corporate of Title Guarantee
The charter Tr. State v. Title Guar. & Company was the Court before (1935). legislative Co., A. 177 617 Its 1884 168 name, charter, empowered examine it to under different guarantee or to insure owners and property, to to titles property against loss mortgagees of real or leasehold encumbrances; titles, liens, or other reason defective fidelity This was guarantee of fiduciaries. to and insure powers enlarged to it to have all in 1894 authorization buy, sell, lease, acquire person or otherwise natural money upon personal property, to lend real and and hold money corporate for its security, to borrow personal real or rents, money deposit, ground collect receive on purpose, to kinds,- and to have the mortgages, dividends all interest on property upon custody such management and of all kinds of corporation arrange. might At the same time terms as Chapter 109 the Acts of subject the terms of was made report at stated provided It for the examination 1892. fidelity companies, trust, guaranty, loan, times of deposit prescribed in a amount with securities defined protection depositors. It of the State for the the treasurer Chapter subject of the Acts of made 279 also was might fiduciary concerning which certain corporation bond, capacities without etc. name of Company by changed & Trust to Title Guarantee powers were amended Acts of 1900. The by conferring by Chapter of 1920 on the 321 of the Acts given companies powers to trust under 1912 or amendments Art. of the Code of additions predecessors Judge for our that “the to it. Parke observed legislation within the denunciation of sections 33 [was not] Constitution, powers of article 3 of because granted were either not obtainable incorporation law or were more extensive than then force by general provided.” statute corporations might
Code following purposes.” Then be formed “for
221
of
listing
different classes
24
of sections
followed a number
Chapter
14 of
that article was
corporations.
14 of
Section
corporation law of that
1868,
of
of
471
the Acts
replaced
of this.
year. The 1908enactment
corporations has been
perpetual
existence
1908
Since
duration
limited the
permitted.
enactment
The 1868
provisions,
than
under its
corporations incorporated
this reason that
years. It was for
gas light companies, to 40
Assn., Md.
138
Singer
Memorial
Wyman
held in
Court
incorporation
(1921),
special
that a
commission Trans, Carter, The (1908) J. B. Ass’n 91-92 of Md. St. 13 Legal 187 Entity 129 f.n. Corporation as a Nature (1919). Williams, Esq., presidential in his A. Stevenson Association, Maryland Bar observed: address to the State large Assembly has to devote a General “[E]ach certainly one-fourth, part session, of its Trans, [legislative consideration of charters].” 20(1901). B. Md. St. Ass’n Machen, Jr., Esq.,
Arthur in an address on W. law, 14th Bar at its told the State Association that, passage revisions, meeting with annual enjoying the benefits of a “for the first time were] [we not, a well-known the words of statute which use Trans, of writer, ‘legal . . .” See 14 antique’ a mere or curio . said, (1909). he B. In his Md. St. Ass’n 80 conclusion “[W]e emancipated from the shackles of now the Act of 1908 are enjoying antiquated We are the first taste of law. liberty.” Id. at 98. in effect at time
Code corporation, provided: creation of this “Corporations may be formed provisions one more lawful article purposes, except are excluded from the such as
operation of a law the constitution of *10 except provisions special And where State. in inconsistent herewith are made this article for classes, particular corporations shall be formed following:” in manner A succeeding article.
referring to the sections of that among purposes. type the excluded of this provided: Section any
“In case in which neither the charter nor the by-laws corporation having capital of a stock, no incorporated, provides heretofore or hereafter for such, members thereof as and in in case which corporation such has in fact no members other governing body than the members of its or board they may called, whatever name the members being governing body for the time of its or board shall, purposes any statutory provision for the or relating corporations rule of law to members of having capital stock, no be taken the members corporation, of such as well as members of such board, governing body may meet as corporation members of such and exercise all of the rights powers of members thereof.” Accordingly, membership provisions special creating bring as a do not that act exception Ill, within the contained Constitution Art. 48§ special acts, membership provisions relative to since those general were available under the law. by Moberly point is made “[t]he specifically laws then existence did not
provide for the creation of non-stock
non-profit general hospitals.”
purpose
operating
This is
necessary.
true,
specific
was not
For
but a
Hospital, 142
instance,
Emergency
we
are told
Stevens
year
526, 528,
(1923),
1906 . . .
We Hospital here under consideration legislative charter of membership ex on provision for (including the officio placed in the Governors) have could not been Board of corporation established by-laws of a or both charter or fact, special no As a matter of general corporation laws. County Allegany necessary give either act was hospital since Code authority erect a of Cumberland Chapter 155 62, originally enacted as (1924) Art. (1957) as Code 1882 and now codified Acts of provided: may county authorities municipal and
“The their inhabitants of provide use of the for the county hospitals ... or two respective city, town or *11 providing in may combine or more local authorities hospital.” a common exemption from tort provisions for possible that the
It is whether any question as to avoid liability were inserted to governmental function was a operation of the have no tort municipal would which the under State, A. 571 Md. liability. v. (1937).2 Baltimore 267, 195 173 Md. 92 A. 2d George’s County, 200 Prince In Thomas v. 554, Judge this Court: Markell said for Chief (1952), 452 directly held that in this court has “No case governmental operation hospital is a function of a municipality respect is not liable for in of which a applied 2. Critics of the doctrine of stare decisis as to the doctrine of sovereign immunity State, see, e.g. Clarke, Municipal Responsibility in this Maryland, (1939), in Tort in 3 Md. L. Rev. 159 often overlook the fact that in 1786, Maryland but right given by 53, to sue the State was the Act of ch. “[t]he repealed right away.” this was afterwards and the taken State v. O.R.R., 344, (1871). repeal by Chapter & Md. Baltimore 210 of the Acts of 1820. State v. 34 374 This came Wingert, 605, 611,104 (1918). 132 Md. A. 117 proposed provided: Section 9.08 of the Constitution of 1968 “Sovereign immunity may pleaded not be as a defense in a suit against departments government, any or unit of State local of their agencies, except in the extent and the manner prescribed by law.” presence Some will recall advanced of this as one of the reasons rejecting proposed some critics that Constitution.
224
negligence. Perhaps been has assumed litigants municipality is no more liable than corporation. a charitable In at least two cases court, operation of a is mentioned as just governmental an illustration of such a State, Blueford, function. Baltimore v. use 173 of 275, 276, 571; A. County Md. 195 Harford 434,196 Love, 122.” A. Id. at 559. Act, now as of Section 11 of the 1927 codified Code Public (1930) (“City Cumberland”), Art. 1A Local Laws § City as Cumberland Code stated that the Board authority, without of Governors have “sh[ould] Mayor City Cumberland, consent of the Council Hospital], capital make addition or increase the [to thereof, capital unless such addition or increase account bybe account donation of individuals to said Board sh[ould] “[i]f, opinion of Governors.” It further Governors, there be an amount Board sh[ould] money m[ight] amount be needed excess such Hospital, operation of said such amount in and maintenance paid by excess said Board of Governors thereof sh[ould] City Sinking Fund of to the Trustees of the retiring purpose of Cumberland for the bonds th[at] issue, found in the event that a deficit shfould] maintenance, operation exist in such power have Cumberland Council of shfould] purposes of amount appropriate to the said such so necessary.” By present deemed Cumberland *12 enactment) (Art. 1A, 160) part original (a of the Code § City Hospital furnish to Council Board showing each a statement “at the end of six months receipts, financial condition of disbursements Hospital.” said Act, and 2 15 of the 1927Act codified
Section § City 201, repealed “[a]ny present Code, Cumberland Acts, any parts, parts part City or of the all Acts Maryland, Cumberland, conflicting way Charter of those ... far and to the extent that so [with enactments] the same so conflict.” shfould] survey
A of the Hospital, enactments relative to the including, specifically, the statements relative to the relationship Hospital City of the to the of Cumberland and Hospital fact that each time the matter of the was before Assembly specific General repeal action was taken to parts of the City charter of the of Cumberland inconsistent enactments, with those leads to the conclusion that agency is in fact an of the of Cumberland. When to those enactments is added the fact legislative power charter of the contains no provided private could not have been under the general corporation State, and, therefore, laws of the Ill, only 48 the charter can valid if it is one for municipal purposes, inescapable the conclusion is that this agency is an and, of the of Cumberland therefore, subject information law. sought
Herboldsheimer salary to ascertain the of the legal Director and paid the amount of the fees to the law firm represents Hospital. which judge The trial (Rutledge, J.) opinion: said his
“Having hospital determined that is an agency City Cumberland, the second issue sought is whether the information comes under exceptions in the Statute. “(II.) The defendant contends that under the exception ‘personnel records’ should be included sought, i.e., the matter salary superintendent paid the amount legal services.
“It should be noted that where ‘Public Records’ was defined in Article (a) Section 1 [76A] provided, “public
‘The term records” when not otherwise specified any paper, shall include corre- spondence, form, book, photograph, photo- stat, film, microfilm, recording, map sound drawing, or document, regardless physical characteristics, form or including *13 by the thereof, been made copies that have municipalities and counties, and
State by any thereof political subdivisions municipalities, State, counties, agencies thereof, or received political subdivisions with the transaction connection them except privileged or business, those by law.’ confidential doubt left some definition if
“As clarifying amendment confusion, in 1973 a added, saying, also includes “public records”
‘The term in the employees, both of all State salaries service, and all and nonclassified classified in a municipal employees, whether county and service.’ nonclassified classified amendment thrust of this “It is clear require trend to of the modern in the direction end invidious shadows of disclosures financial secrecy. agree with the contention the Court
“Nor does attorney by paid is fee to its that the it is a confidential privileged because transaction relationship. attorney-client matter, under the 23, Witnesses, says, Sec. 53 “M.L.E. communications, communicated ‘Confidential employment professional between the course of client, may not, without attorney and his divulged by attorney. client, his consent of and not of the that of a client privilege is designed to secure the client’s attorney is secrecy of his communication.’ confidence attorney by the client to the “The communication charges lawyer the fee which the privileged, the client. Finally, the defendant
“(Ill) it is contended applies, matter does if 76A and the that even Art. exceptions, yet one of the not come within *14 (f) Article 76A Sec. 3 ‘it is that where injury would do disclosure substantial to the — may apply interest defendant custodian to the — permitting an district court for order him to l3l disclosure.’ restrict such
“The newspaper defendant contends that the plaintiff’s which the appears long column has car- Moberly ried out a vendetta with Mr. the hos- pital, and requested desires the information for the purpose exposing attempting expose to the Di- rector, hospital ridicule, and staff to and seeks to hospital only purpose examine the records for the attempting something to find pruriency for the curious The ears. defendant filed 183 articles from Peoples (which The Guardian later The became Guardian) prove point. to its
“The necessary Court does find to decide motives. If public institution, is a sought the information does not come under one of exceptions, sought the information should be made available.
“The Court does not find that invidious or im- proper motives, any, bring if can information otherwise revealable under Act into the classi- origin August, This cause in the Court in 3. had District 1973.Prior to repeal Chapter and reenactment of this statute 216 of the Acts of provision (e) by application in 3 for enforcement was “to the § . . district court of the district wherein the record is found that this statute . .” It obvious is copied adequate from enactment elsewhere without editing. reading (a) One this conclusion from section reaches 3§ stating (iii) prohibited by right inspection inspection if there no is “[s]uch promulgated by supreme . . rules court. .” Constitution providing IV, 41A for the District Court of was not ratified § Chapter people until November 1970. Acts changed provision court of the district county district court of the district in which such record is “supreme Appeals,” reference court” “Court of application (e) in 3 relative to an “to enforcement the district wherein such record is located” to “circuit court found,” (f) where the record is in 3 from “the located” “circuit court county where the record located.” (f) 76A 3. where disclosure would do
fication of Art. ” injury public interest.’ ‘substantial Assembly If did not adopt opinion. General We reaching far interpretation when it enacted this intend this statute, it so state. should affirmed; appellant pay
Order costs. dissenting:
Murphy, C.J. majority that the known concludes of the Memorial of Cumberland Board of Governors *15 Cumberland; Hospital) City it (the agency of the is an provision Hospital’s in reasons that there is no the in legislative not have included the that could been charter general the of a established under charter and, therefore, Ill, under Art. 48 of the laws § only if Maryland Constitution, can valid it is the charter be however, my opinion, municipal purposes. In for one private corporation of 1927created a 411 of the Acts Chapter general the governing body not obtainable under with a laws, viz., incorporation a board which included two officials, serving in an ex-officio governmental each provision general in law for capacity. existed the the No appointment governmental as ex-officio of such officers general law in effect when the Board board members. provided formed was that were to “be created following.” 3. The “manner” manner Code in the remainder of Art. to in 3 is delineated referred proposition support for is there found the that but nowhere by the type memberships the of ex-officio board mandated creating Hospital corporation Legislature in the could general corporation has held law. It been achieved under the incorporation papers, are not which that matters in the may by law, effect and be treated are of no warranted A. Co., 34 Del. surplusage. Penn-Beaver Oil State Hospital’s view, provision in the my the (1926). In governing membership on the for ex-officio charter County Mayor and President of board of responsive any specification was not to Commissioners general and could had law not have force and effect special majority absent the act. The reads law in permitting anything 1927 as in the charter inclusion by not specifically forbidden law. But while the law permit incorporation forbidden, did any purpose for not every corporate required aspect still formation to statute, correspond with the to and consistent membership governmental ex-officio officers provided by special the Code. Had been act the there no dignity have would had no claim regulation. I effectiveness of charter therefore conclude special necessary create the board by Legislature Chapter mandated 411 of the Acts of 1927. Consequently, Section Art. 3 48 of of the Constitution play part determining should no whether the Hospital municipal agency is a of Cumberland. properly
Had the Court discounted relevance of incorporation special act, it would have concluded that municipal agency not a instrumentality. majority points out, As the was created Chapter 411 of the Acts of 1927. was there It Council of Cumberland was authorized expend up $400,000 proceeds purpose of bond for the
taking erecting title land and under the direction of a Board of Governors. Section 6 of the Act consisting created members, a Board Governors of seven two of whom were ex-officio. As to individual Governors *16 named, self-perpetuating the Board was in that it was among authorized to fill vacancies which occurred the empowered members. Board the was to select land hospital, for the title to which to be the name of and Council of Cumberland and it was to plans building select for the and enter into contracts for the erection equipping and thereof. 9 Under Section of the Act given power Board was to make rules and regulations operation of the and maintenance hospital. empowered The Board was 10 to Section regulate salaries, 11 charges, employees. and hire to Section (but require) Mayor and of the Act did authorized not 230 necessary appropriate to cover Council amounts operation hospital.
deficits in
and maintenance of
1929,
provisions
By Chapter
515 of the laws
Chapter
amended;
411 of the
of 1927 were
Board
Acts
body politic
a
and
thereby
and constituted
“made
succession,
capacity to
corporate,” given perpetual
and the
addition,
granted
Board was
In
sue and be sued.
operate
manage
necessary
a
proper
and
and
powers
purposes under
fully
incorporated
if
for such
hospital “as
as
Maryland.”
provisions
Public
Laws of
of the
General
public
private
and
is
The distinction between
comprehensive
of the
standing.
review
long
A
one of
of Kerr v.
in the case
is to be found
authorities
Library, 54 Fed.
Supp.
523:
Pratt Free
Enoch
public
private
legal
“The
test between
subject
corporation
corporation is whether the
authority,
municipal.
by public
To
state
control
one,
managers,
its
make
directors,
only
must be
whether
trustees
subject
to its
by public authority
appointed
but
Maryland law since
been the
control.
This has
University Maryland v.
Regents of
early
case
J., Md., 365,
Williams,
‘When [a] meant, merely that the whole public, it is not objects may proper community government have the sole bounty, but that the public interest right, trustees control, corporation, direct regulate, own funds, its franchises at and its pleasure.’ good will applied reaffirmed and has been this test “And *17 subsequent Mary’s cases. St. Industrial School v.
Brown, 310; Maryland 45 Md. Institute, Clark v. 643, 126; 41 A. City Cumberland, Finan v. 269;
154 Md.
University Maryland
141 A.
Murray,
169 Md.
182 A.
I am say authorized Judge joins O’Donnell in the dissent.