Moberly v. Herboldsheimer

• Decision Date: 24 October 1975
• Docket Number: No. 209,209
• Citation: 345 A.2d 855,276 Md. 211
• Parties: John A. MOBERLY v. Robert HERBOLDSHEIMER.
• Court: Maryland Court of Appeals

Page 211

276 Md. 211

345 A.2d 855

John A. MOBERLY v. Robert HERBOLDSHEIMER.

No. 209.

Court of Appeals of Maryland.

Oct. 24, 1975.

Robert S. Paye, Cumberland (William H. Geppert and Geppert, McMullen & Paye, Cumberland, on the brief), for appellant.

Robert Herboldshiemer, in pro. per.

Argued and reargued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SMITH, Judge.

Appellee, Robert Herboldsheimer (Herboldsheimer), an Allegany County newspaper columnist, was desirous of ascertaining the salary of appellant, John A. Moberly (Moberly), as Director of Memorial Hospital of Cumberland, the corporate name of which is the Board of Governors of the Memorial Hospital of Cumberland (the Hospital), and certain other information relative to the Hospital. Accordingly, he sought to invoke the provisions of Maryland Code (1957, 1975 Repl.Vol.) Art. 76A, originally enacted by Chapter 698 of the Acts of 1970, relative to public information. The requested information was denied on the ground that the Hospital is not subject to the act. He then instituted an action in the District Court of Maryland. It was there held:

'Under all of the conflicting circumstances, and the involved manner in which the Hospital exercises what authority it has, this Court is constrained to hold that it has not been shown that the Hospital is an agency of the City of Cumberland, within the purview of Article 76A, and that, therefore, the plaintiff is not entitled to the relief sought.'

He appealed to the Circuit Court for Allegany County. It reversed and directed that the requested information be made available by Moberly as Director of the Hospital. We granted the writ of certiorari at the Hospital's request in order that we might address ourselves to the question of whether the Hospital is an agency of the City of Cumberland and thus covered by the act. We conclude that it is.

The Hospital, relying upon reasoning such as that put forward by Judge Chesnut in Kerr v. Enoch Pratt Free Library, 54 F.Supp. 514 (D.Md.1944) rev'd 149 F.2d 212 (4th Cir.), cert. denied 326 U.S. 721, 66 S.Ct. 26, 90 L.Ed. 427 (1945), and Norris v. Mayor and City Council, 78 F.Supp. 451 (D.Md.1948), claims that it is not subject to control by public authority and thus is a private corporation. After the matter was initially argued before us we directed reargument with particular attention to be paid to Maryland Constitution Article III, § 48 which provides in pertinent part:

'Corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes and except in cases where no general laws exist, providing for the creation of corporations of the same general character, as the corporation proposed to be created; and any act of incorporation passed in violation of this section shall be void.'

We also directed attention to a provision exempting the Hospital from tort liability to which we shall later allude.

Chapter 411 of the Acts of 1927 authorized a bond issue in the amount of $500,000 by the Mayor and City Council of Cumberland. $400,000 of this issue was to be used 'for the purpose of taking title to land and the erection or maintenance and operation of a public general hospital in or near the City of Cumberland, Maryland, to be known as the Memorial Hospital of Cumberland, Maryland, under the direction of the Board of Governors of said hospital as (t) hereinafter provided . . ..' The other $100,000 of that bond issue was to be paid to the Allegany Hospital of Sisters of Charity, Inc. For that reason the propriety of this bond issue was before the Court in Finan v. M. & C. C. of Cumberland, 154 Md. 563, 564, 141 A. 269 (1928), in which opinion Chief Judge Bond described Memorial Hospital as 'a municipal hospital in Cumberland,' although the status of Memorial Hospital was not before the Court. ¹

Section 6 of the original act provided that 'for the purpose of securing land and the erection of a suitable building and the maintenance and operation of said Memorial Hospital the Board of Governors of said Hospital (was) (t)hereby created.' Five prominent citizens together with 'the Mayor of the City of Cumberland and the President of the Board of County Commissioners of Allegany County (were to) comprise said Board.' Its members, 'with the exception of the said Mayor of Cumberland and the said President of the Board of County Commissioners of Allegany County (were to) retain office until they sh(ould) reach the age of sixty-five years or during good behavior.' It was specified that the terms 'of the Mayor of the City of Cumberland and the President of the County Commissioners of Allegany County as ex officio members of said Board (were to) be co-extensive with their respective term of office and no longer.'

Under § 9 'said Board of Governors (was to) have power and (it was to) be its duty to make all rules and regulations deemed necessary from time to time for the operation and maintenance of said Hospital . . ..'

Section 13 of the original act stated 'that the Mayor and City Council of Cumberland sh(ould) not be liable in any suit brought against it or by reason of the negligence of any employee, servant or agent engaged in and about the erection, maintenance or operation of said hospital.'

At its next regular session the General Assembly again addressed itself to the matter of the Hospital. It then enacted Chater 515 of the Acts of 1929. By that act § 6 was repealed and reenacted with amendments providing that the Board of Governors was '(t)hereby made and constituted a body politic and corporate by the name and style of the Board of Governors of the Memorial Hospital of Cumberland,' by which name it was to 'have perpetual succession,' with the provision that it 'sh(ould) be capable to sue and be sued, to have a common seal, and the same at its pleasure to alter and/or break . . ..' It was 'to have all the powers (t)herein granted it, and all such other powers as sh(ould) be proper and necessary to operate and manage said Hospital and/or a public general hospital, as fully as if incorporated for such purposes under the provisions of the Public General Laws of Maryland.' No change was made in the Board named in the statute or in the provisions relative to the Board. A change was made in § 13 so that the Board of Governors was added to the exemption from tort liability.

Maryland Constitution (1851) Art. III, § 47 provided that '(c)orporations m(ight) be formed under general laws, but sh(ould) not be created by special act, except for municipal purposes, and in cases where, in the judgment of the Legislature, the object of the corporation c(ould) not be attained under general laws.' Constitution (1864) Art. III, § 51 was to the same effect. However, Constitution (1867) Art. III, § 48, in addition to the language we quoted earlier in this opinion, as originally adopted provided that 'as soon as practicable, after the adoption of th(at) Constitution, it sh(ould) be the duty of the Governor to appoint three persons learned in the Law, whose duty it sh(ould) be, to prepare drafts of general Laws, providing for the creation of corporations, in such cases as m(ight) be proper, and for all other cases, where a general Law c(could) be made . . ..' See the history of the Maryland general law as to corporations set forth in J. France, Principles of Corporation Law (2d ed. 1914) 27. The author points out that prior to the year 1838 the Vestry Act (Chapter 24 of the Acts of 1798) and the Religious Corporations Act (Chapter 11 of the Acts of 1802) 'were the only steps taken in the direction of free incorporation.' However, '(b)y the Act of 1838, ch. 264, persons desirous of obtaining charters for manufacturing purposes were permitted to incorporate under a general law.' New purposes were added between 1838 and 1868 so that 'at the latter date, the general incorporation law provided for associations of the following descriptions: Associations 'for any moral, scientific, literary, dramatic, agricultural or charitable purpose or for the purpose of forming any uniformed volunteer company, fire engine or hose company, land company, or beneficial, benevolent or musical society; cemetery companies; building associations; manufacturing companies; mining companies; religious societies; telegraph companies; companies for 'obtaining oil by boring or otherwise'; universities and colleges." Then, as the author puts it, '(w)ith the year 1868, a new order began.' He further states:

' § 21. Scope of the general law. The plain intent of the Constitution was to reserve municipal and possibly banking corporations for special charters, and to dispense with the latter in 'all other cases where a general law can be made.' But this intent was not realized. In the first place, the legislatures succeeding that of 1868 did not, in broadening the scope of the general law, keep step with the need; and in the second place, the Court of Appeals decided that the grant of special powers to a corporation of a class covered by the general law, makes a special charter valid. The Act of 1908, in addition to permitting incorporation for any lawful purpose, annexes the right to obtain all proper powers. Accordingly, the necessity for a legislative or special charter can rarely exist; and one unnecessarily granted is void. The test of necessity is whether the results of the special act are obtainable under the general law.' Id. at 28-29. (Emphasis added.)

We must be concerned here with this constitutional provision as applied to the act in question because of that familiar principle of law under which if there are two constructions that can be placed upon a constitutions provision, a statute, or an act of a public official, one of which will result in its legality and effectiveness and the other of which will make it illegal or nugatory, we must construe it so as to render it effective and so as to avoid conflict with the...