3088                                                           VETOES

In University of__Maryland v. Maas, 173 Md. 554

(1938), the Court of Appeals held that "it is established
that neither in contract nor tort can a suit be
maintained against a governmental agency, first, where
specific legislative authority has not been given,
second, even though such authority is given, if there are

no funds available for the satisfaction of the judgment,

or no power reposed in the agency for the raising of

funds____necessary to satisfy a recovery__against it"

(emphasis supplied) . This doctrine has been reaffirmed
by the Court more recently in Lohr v. River Commission,

180 Md. 584 (1942) and Chas. E. Brohawn & Bros.__v. Board,

269 Md. 164 (1973).

It would thus appear that, even if House Bill 5 is
construed as providing the specific legislative authority
to maintain an action against governmental agencies,
which itself is open to some doubt, it does not satisfy
the requirement of making funds available for the
satisfaction of judgments, and would, therefore, not seem
to accomplish its intended purpose.

In the event this objection can be overcome through
some combination of judicial construction and appropriate
budget provisions, a serious question arises as to
whether the bill would then far exceed its intended
effect.

The bill purports to provide absolute liability in
"any action of contract", without limitation.
Unfortunately, the distinction between actions Ex
contractu and actions ex delicto has become somewhat
blurred over the years, and it is possible to frame
causes of action for negligence or other tort in the
guise of breach of contract. I am deeply concerned, for
example, whether, if this bill were to become law, normal
governmental services may come to be considered as a type
of contract — whether an action ex contractu may lie
against the State for an alleged failure to clear roads
of ice or snow which may contribute to an accident, or
whether a similar action may lie against a local fire
department for an alleged failure to respond to a fire
promptly.

I am also concerned that, as worded, the State and
local governments may be precluded from raising the
defense of unauthorized contracts, or that counter-suits
and set-off claims may be peremptorily disallowed.

In summary, I believe that the question of whether,
how, and to what extent the historical doctrine of
sovereign immunity should be modified must be given much
more careful study before embarking on legislative
enactments. In that regard, I note that, in 1968, a
Commission to Study Sovereign Immunity and State Tort