Anne Arundel County Com'rs v. Duckett

• Decision Date: 14 January 1864
• Citation: 20 Md. 468
• Parties: THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY v. RICHARD DUCKETT.
• Court: Maryland Court of Appeals

20 Md. 468

THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY v. RICHARD DUCKETT.

Court of Appeals of Maryland.

January 14, 1864

APPEAL from the Circuit Court for Anne Arundel County:

This was an action brought on the 10th of August 1859, by the appellee against the appellant, to recover the value of a horse killed while being driven over one of the public roads in Anne Arundel County, alleged to be in bad repair.

The declaration avers that, the defendants " are bound to keep the public roads of said county in repair and in such a state as will permit safe travel over them; that one of the public roads in said county, to wit: the public road which leads from Anne Arundel County across the Governor's Bridge to Prince George's County, on the Anne Arundel side near the said bridge, was negligently suffered, on or about the 1st day of April 1859, by the defendants, to be out of repair and unmended, so as to be impassible with safety whereby the plaintiff in traveling on said road with his wagon and horses, and using due care, had one of his horses killed; and the plaintiff claims $300."

The defendants demurred to this declaration:

1st. Because by the Constitution and Laws of this State, the duty and responsibility of keeping the public county roads in repair, is devolved upon Road Supervisors elected by the qualified voters of each election district of the several counties, and not upon the County Commissioners and the defendants in fact say, that one Andrew Nichols was at the time the alleged injury to the plaintiff's horse occurred, the duly elected Road Supervisor for the Second Election District of Anne Arundel County, and the road mentioned in said declaration, at the place where the said injury happened, was within the limits of said election district, and the duty and responsibility of keeping the same in repair, was by the Constitution and Laws aforesaid devolved upon the said Andrew Nichols and not upon these defendants.

2nd. Because by the Constitution and Laws of this State, the defendants are not responsible for the want of repair of the road mentioned in the declaration, nor for any injury which may have resulted therefrom to the plaintiff.

This demurrer was overruled, and the defendants then pleaded seven pleas, upon all of which, save the 5th and 6th, the plaintiff joined issue, and to these demurred. The pleas thus demurred to are as follows:

5th. And, for a fifth plea these defendants say, that they are not bound to keep the public roads of said county in repair, and they aver that the duty of keeping the same in repair, is by the Constitution and Laws devolved upon the Road Supervisors.

6th. And for a sixth plea the defendants say, that the road on which the alleged injury to the plaintiff's horse is supposed to have occurred, is within the limits of the Second Election District of Anne Arundel County, and that at the time of the said supposed injury, there was a Road Supervisor for said district duly elected by the qualified voters thereof, and that the defendants duly issued a commission to said Road Supervisor according to the 2nd section of the Act of 1853, ch. 300, in which commission, among other things, is set forth the amount of money, to wit: the sum of $1000 appropriated by the defendants for the repairs of the roads and bridges in said district for the year within which the alleged injury to the plaintiff's horse is supposed to have occurred, and the defendants aver, that said sum so appropriated by them, was abundantly sufficient to keep said road and bridges in good repair during said year; and they further aver, that said Road Supervisor duly made report to these defendants as provided for by the 5th section of said Act of 1853, and in said report, among other requirements of said section, he reported, that the roads and bridges under his supervision in said district were in good repair during said year; and the defendants further aver, that they have faithfully and fully discharged all the duties imposed upon them by said Act of 1853, in reference to said roads.

The plaintiff demurred to the 5th plea, " because the defendants are bound to keep the public roads of the said county in repair, and that the duty of keeping the same in repair, devolved by the Constitution and Laws of the State upon the Road Supervisors, does not discharge the defendants from the performance of the like duty or exonerate them from any liability resulting from the non-performance of the same."

To the 6th plea: 1st, because the same in manner and form as pleaded, does not set forth sufficient ground of defence; 2nd, because the same in manner and form as pleaded, is bad for multiplicity, in this, that several and distinct matters of defence are thereby pleaded in bar of the plaintiff's action; and 3rd, because the same is so drawn in manner and form that the plaintiff cannot take any certain issue upon the said plea.

The Court sustained the demurrers to these pleas, and the verdict and judgment being in favor of the plaintiff upon the issues of fact, the defendants appealed.

O. Miller and Frank H. Stockett, for the appellants, argued:

That the duty and responsibility of keeping the public roads in repair, is not devolved upon county commissioners by any such certain and precise provision of law as to make them responsible to individuals for injuries resulting for the bad state or condition of such roads, and that therefore the demurrer to the declaration should have been sustained, and the plaintiff's demurrers to the 5th and 6th pleas should have been overruled. In support of this position, reference is made to the case of Bartlett vs. Crozier, 15 Johns., 250, and same case in the Court of Errors in 17 Johns., 439, and especially to the very able opinion of Chancellor Kent in the latter case, which was adopted by the unanimous opinion of the Court of Errors. Reference is also made to the English authorities cited by the chancellor in that opinion. As to the provisions of our Constitution and laws upon the subject, see Constitution, Art. 7, secs. 8, 9. Act of 1853, chaps. 220, 239 and 300. Act of 1794, ch. 52. Act of 1795, ch. 43. 1856, chs. 317 and 349 and 204. Act of 1846, ch. 301.

Daniel Clarke, for the appellee:

Upon the part of the appellee it will be insisted, that the Court below was right in overruling the demurrer filed by the defendants to the plaintiff's declaration, and in sustaining the plaintiff's demurrers to the 5th and 6th pleas of the defendants.

It will be argued upon the part of the appellee:

1st. That by the Constitution of the State, and the Acts of Assembly passed in pursuance thereof, the County Commissioners of each county are " constituted and declared to be a corporation and body politic," with charge and control over the county roads and bridges in their respective counties. Constitution, Art. 7, sec. 8. Act of 1853, chaps. 300, 339.

2nd. That by the Constitution and Acts of Assembly passed in pursuance thereof, the Road Supervisors are required to " superintend and direct the repairs of the public county roads in such manner and under such regulations and restrictions as may be directed" by the County Commissioners of the respective counties, and they act in their official capacity as the ministerial agents of the County Commissioners. Constitution, Art 7, sec. 9. Act of 1853, ch. 239. Act of 1853, ch. 300. Dean vs. New Milford, 17 Johns., 446, 447. 5 Watts & Serg., 545. This case is an answer to the argument of the appellant, and is to the effect that where the duty to be performed is by a subordinate, elected independently of the commissioners not appointed by them, the commissioners are not responsible at law for his acts or his omissions. Mayor & City Council vs. Board of Police, 15 Md. Rep., 376. See also 3 Hill, 531.

3rd. The defendants being constituted a " corporation or body politic," can be sued civiliter for torts or injuries arising either from their own acts and omissions, or the acts and omissions of their ministerial agents. Mayor & C. C. of Balto. vs. Marriott, 9 Md. Rep., 160, and cases referred to, p. 156. Mayor & C. C. of Balto. vs. Pennington, 15 Md. Rep., 12. Mayor of Lynn vs. Turner, Cowp., 86. Henly vs. Mayor of Lynn, 3 B. & Ad., 77. Id., 1 Bing. N. C., 222. Stetson vs. Fascon, 19 Pick., 147. City of Erie vs. Schwingle, 22 Penn., 384. Delmonico vs. New York City, 1 Sandf., 222.2 T. R., 669, cited by appellant, was decided on points not at issue in this case, viz: that the defendant was not a corporation, & c. 4 Wright's Ohio Rep., 517.

4th. That the charge and control of the public roads in Anne Arundel county being imposed upon the defendants, with power in the supervisors to superintend and direct their repairs in such manner and under such regulations and restrictions as the defendants may direct, the duty and responsibility of keeping the public roads in repair attach to the defendants and they are liable at the suit of an individual who sustains special damage by such omission to keep the roads in good repair, whether such omission be the result of misconduct, malfeasance in office, or neglect of the defendants or their ministerial agents, the Road Supervisors. The defendants cannot discharge themselves from liability for injuries resulting to an individual, by averring that they have discharged their quasi legislative duties, but they must require and enforce the performance of the ministerial duties of the Road Supervisor. Mayor & C. C. of Balto. vs. Marriott, 9 Md. Rep., 178. Mayor & C. C. of Balto. vs. Pennington, 15 Md. Rep., 12. People vs. Albany, 11 Wend., 539. Feuze vs. New York, 3 Hill, 612. Mann vs. Fearson, 9 How., 248. 1796, ch. 68, sec. 2, Watson vs. Proprietors, 2 Shipley, 203. Riddle vs. Proprietors of Lisbon...