12                          JOURNAL OF PROCEEDINGS                 [Dec. 16

This Bill provides that after there have been two non ests against an
absconding uninsured owner or operator, the plaintiff may then serve
original papers on the Board and proceed to judgment. This Bill marks a
change from the present law, in that Section 167A of Article 66¹/₂ now
provides that a person suffering damages caused by an uninsured operator
or owner whose whereabouts 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 con-
templated by S.B. 212, is that the absconding motor vehicle owner or
operator remains the defendant, and judgment against him may be ob-
tained by serving papers on the Board. It is entirely possible, therefore,
that a judgment may be obtained against a named defendant 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 deci-
sion, holding unconstitutional the procedure set out in S.B. 212. It is well
settled law that in the absence of any such holding, 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 judg-
ment 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 subrogation 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 noti-
fication 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 proceeding naming the Board as defendant, as is required under exist-
ing law.

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

Sincerely,

/s/ Francis B. Burch,
Attorney General.

Senate Bill No. 212—Unsatisfied Claim and Judgment Fund.

AN ACT to repeal and re-enact, with amendments, Section 167A of
Article 66¹/₂ of the Annotated Code of Maryland (1967 Replacement Vol-
ume), title "Motor Vehicles," subtitle "Unsatisfied Claim and Judgment

* On July 1, 1968, Chapter 543 of the Acts of 1968 became effective, substituting
the Board for the Commissioner of Motor Vehicles, who had theretofore been the
officer against whom such action was to be brought.