Bolick v. BD. OF ED. OF CHARLES CTY.

Childs, J., delivered the opinion of the Court. Joseph Clyde Bolick, individually, and doing business as Southern Maryland Dry wall Co. has brought suit against the Board of Education of Charles County (the Board), alleging that he, as a subcontractor of Spa Construction Co., Inc. (Spa), furnished labor and materials for the La Plata High School from September 20, 1964, through December 22, 1965. Spa became insolvent and failed to pay Bolick, who complains primarily that the Board was under a duty imposed by Code (1957) Article 90, Section 11 to require Spa to furnish a payment bond executed by a surety company authorized to do business in Maryland which would protect all persons supplying labor and materials to the contractor. Bolick alleges that the Board was negligent in that it accepted a payment bond issued by a surety company not licensed to do business in the state; that the bond furnished was fraudulently executed and not enforceable, whereby the appellant was caused to lose material and labor valued at $6,-581.07.

In the alternative, he seeks judgment based upon the Board’s unjust enrichment. We will assume the truth of Bolick’s allegations since Judge Perry E. Bowen, Jr. decided the case for the Board on its motion raising preliminary objection, Maryland Rule 323. The Board’s asserted defense at the hearing on the motion and before this Court was that since the legislature had imposed a duty on the Board to require a payment bond,, it became amenable to suit for failing to comply fully with the statute, but since suit was not instituted within a year of acceptance of the work, limitations had run against Bolick. Having lost his right to sue under the limitation provision of the statute the Board argued the lower court lost jurisdiction over the subject matter when Bolick lost his right to sue under the limitations provisions of the statute. ¹⁸³ We will affirm the lower court, but not upon grounds asserted by the Board, nor upon the apparent reasons contained in Judge Bowen’s ruling.

Rule 323, motion raising preliminary objection, may, among other matters, properly be employed to contest the lack of jurisdiction over the subject matter or over the person, Irvine v. Montgomery County, 239 Md. 113 , 210 A. 2d 359 ; Eyring v. Baltimore, 253 Md. 380 , 252 A. 2d 824 . Boards of education in this State do not per se enjoy governmental immunity from suit, Code (1957) Article 77, Section 38. However, it has been conclusively established that boards of education are immune from liability in tort actions, since the legislature has given them no power to raise money for the purpose of paying damages, nor to pay judgments against them. Weddle v. Board of County School Commissioners, 94 Md. 334 , 51 A. 289 .

In Weisner v. Board of Education, 237 Md. 391 , 206 A. 2d 560 , this Court held that the Weddle doctrine was too firmly established in Maryland law to justify a change affecting their tort liability without legislative sanction. Technically, the lower court did have jurisdiction over the Board, and since the date of the final acceptance of the work was not established, the court also had jurisdiction over the subject matter, but we have consistently held that where there is substantial compliance with the substance of statutes or rules, and opposing