MARVIN MANDEL, Governor                      1779

tion 167A of Article 66½ now provides that a person suffering
damages caused by an uninsured operator or owner whose where-
abouts cannot be ascertained, may bring an action therefor against
the Board* for recovery. This section provides further that the
plaintiff in such a case must furnish the court with certain assur-
ances of his bona fide efforts to locate the original defendant.

The material difference between the present procedure, and that
contemplated by S.B. 212, is that the absconding motor vehicle owner
or operator remains the defendant, and judgment against him may
be obtained by serving papers on the Board. It is entirely possible,
therefore, that a judgment may be obtained against a named de-
fendant without his ever having actual notice of the suit being filed.

We have approved this bill as to constitutionality because we
are unable to find any Maryland Court of Appeals, or applicable
federal decision, holding unconstitutional the procedure set out in
S.B. 212. It is well settled law that in the absence of any such hold-
ing, a presumption of constitutionality attaches to a legislative
enactment. See John Hopkins v. Williams, 199 Md. 382.

Obviously, S.B. 212 fully protects the rights of the plaintiff, for
he will be paid by the Fund. We can, however, foresee considerable
difficulty at such time as the Board might move against the original
defendant under its right of subrogation. In such a proceeding, the
defendant could very well successfully argue that he had been denied
his constitutional right of due process, because of the lack of actual
knowledge by him of the judgment against him.

We endorse the broad plan of simplifying the procedure whereby
a plaintiff, unable to locate a defendant motorist, proceeds against
the Board. We believe, however, that the Board's right of subroga-
tion would be much better protected, if there were a provision in
the law requiring that before the Board could accept service for the
original defendant, the defendant must have received, or have been
tendered, a registered letter, advising him of the action against him.
Where such registered mail notification could be shown, we believe
that the plaintiff should be permitted to serve the original papers
on the Board and proceed to judgment. Where such notification
could not be shown, then he should be required to file a new proceed-
ing naming the Board as defendant, as is required under existing
law.

I hope that these comments fully answer your inquiry relating
to this Bill.

Sincerely,
/s/ Francis B. Burch,

Attorney General.

* On July 1, 1968, Chapter 643 of the Acts of 1968 became effective, substitu-
ting the Board for the Commissioner of Motor Vehicles, who had theretofore been
the officer against whom such action was to be brought.