Baltimore County Com'rs v. Baker

• Decision Date: 03 February 1876
• Citation: 44 Md. 1
• Parties: THE COUNTY COMMISSIONERS OF BALTIMORE COUNTY v. GEORGE A. BAKER and MARY E. BAKER, his Wife.
• Court: Maryland Court of Appeals

44 Md. 1

THE COUNTY COMMISSIONERS OF BALTIMORE COUNTY v. GEORGE A. BAKER and MARY E. BAKER, his Wife.

Court of Appeals of Maryland

February 3, 1876

APPEAL from the Circuit Court for Howard County.

This was an action brought on the 18th of November, 1874, in the Circuit Court for Baltimore County, by the appellees against the appellants, to recover damages for injuries sustained by the appellee, Mary E. Baker, on the 29th of April, 1874 while crossing a bridge on a public road in Baltimore County. The case was removed to the Baltimore City Court, and thence to the Circuit Court for Howard County, where it was tried. The defendants demurred to the declaration; the demurrer was overruled; the defendants then pleaded "not guilty," and issue was joined on the plea. The verdict was for the plaintiffs, and judgment was entered accordingly. The defendants appealed. No exceptions were taken.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, ALVEY and ROBINSON, J.

Henry E. Wootten and Fielder C. Slingluff for the appellants.

The Act of 1853, ch. 239, incorporated in Article 28 of the Code of Public General Laws, constitutes the general law of the State, at the present time, prescribing the duties of the County Commissioners of the various counties, and in so far as it is not repealed by any Public Local Law, is to be held applicable to Baltimore County.

The agents necessary to carry out the duty imposed on the Commissioners are provided for under the Act of 1853, ch 300, incorporated in the Code of Public General Laws Art. 90. They are road supervisors, "whose duty it shall be to superintend and direct the repairs of the public county roads and bridges within his election district in such manner, and under such regulations and restrictions, as may be directed by the County Commissioners."

By the 16th section of the same Act, "the County Commissioners shall have the power to revoke the commission of any road supervisor at any time during his term of office for neglect of duty or malfeasance in office, and shall have power to fill any vacancy that may occur from any cause in the office of road supervisor, for the remainder of the term that shall become vacant."

Under this Act, the road supervisors were elected by the people of the respective counties, but the Act of 1865, ch. 85, gives the Commissioners the power of appointing them, and takes their election from the people.

Here we have, under the general law of the State, ample authority given to the County Commissioners to repair roads and bridges. It was under this state of the law, that the case of the County Commissioners of Anne Arundel Co. vs Duckett, 20 Md., 468, was decided. Following the case of the Mayor and City Council vs Marriott, 9 Md., 178, the Court declare that the defendants "were not liable at common law," but that "the statutes of the State fixed their liability," and they held the Commissioners in that case liable, because, under the Acts of 1853, ch. 239 and 300, under which they were acting, there was a concurrence of all the conditions necessary to constitute legal liability; a duty imposed by law, means and agents placed at their command to execute it, and capacity to sue and be sued, imposed by the Act of their creation.

In the case of Flynn vs. The Canton Company, 40 Md., 322, the Court says, "after a careful review of the Maryland decisions, which are above referred to, it is manifest the liability of the corporate authorities in actions like the present, rests not simply upon the ground that a statute has imposed upon them a duty, but upon the further fact also that it has provided them with the means, and clothed them with the power to enforce or discharge that duty."

If then the appellants are clothed with the same or equal powers, which were held sufficient to create liability in Duckett's Case they have no case for this Court. But they have no such powers. There is no such concurrence. They have, perhaps, the power to collect means to provide for the opening of new roads, and the building of new bridges, and for the repair of old roads and bridges, but no duty is imposed upon them; the power and control over roads and bridges is absolutely taken from them, and they have no agents given them, even if they had the necessary power, through whom the means could properly be disbursed. Instead of having that clear statutory power which is necessary to take them from the rule of the common law, their power is absolutely struck down or at best is impossible of intelligent construction.

The present road law of Baltimore County is contained in ch. 274, of the Acts of 1874. The county has had a local road law for many years. Prior to the adoption of the Code of Public Local Laws, and after its adoption up to the year 1868 this law was to be found in Article 3, Code Local Laws, sections 149 to 157 inclusive. The Act of 1868, ch. 411, repealed these sections, and was in its turn repealed by the Act of 1870, ch. 309, and the Act of 1870 in its turn repealed by the Act of 1874, ch. 274.

This Act of 1874, has been fully recognized by this Court as the present road law of Baltimore County, in the recent case of Wade, et als. vs. St. Mary's Industrial School, &c., 43 Md., 178. In that case the Court stopped the construction of Wilkens' Avenue, upon which many thousands of dollars had been expended, and which was being constructed under the Act of 1870, on the ground that the Act of 1870 was repealed without any saving clause as to proceedings in fieri under it, by the Act of 1874:--That by the Act of 1874, new officers with new duties to perform, were created, differing in character, &c., from the officers, &c., contained in the Act of which it was the substitute.

The Act of 1874 took effect from the date of its passage and was approved by the Governor on the 11th of April, 1874, just eighteen days before the accident happened to the appellee. The second section of the Act provides "that the County Commissioners of Baltimore County shall, at their first meeting in 1876, and at their first meeting in January of every second year thereafter, appoint for each election district of Baltimore County, three competent, sober, discreet and trustworthy persons, residents of said county, and of the election districts for which they may be severally appoined, to act as road supervisors of that district for the term of two years, or until their successors are appointed and qualified." No provision is made for the appointment of the supervisors from the 11th of April 1874, the date of the approval of the Act, to the 1st January, 1876.

The duty "to take charge of, and control over, the county roads and bridges" which was given the Commissioners under the General Act of 1853, ch. 239, and which was so strongly relied upon by the Court in Duckett's Case as fixing their liability, is taken from them by the Local Act of 1874, and tranferred to the road supervisors. And these road supervisors, instead of "superintending and directing the repairs of county roads and bridges, in such manner and under such regulations and restrictions as may be directed by the County Commissioners," as provided by the General Act of 1853, ch. 300, which was also much relied upon by the Court in Duckett's Case, are given this charge and control over the roads and bridges, "subject to the approval of the Commissioners." The authority of the Commissioners is merely judicial, to approve of acts when done, and, upon charges preferred, and notice given, and a hearing had, to decide upon removal. They are no longer, in the language of Duckett's Case, expressly required to direct the manner of the application of the money raised to repair roads and bridges. This duty is expressly taken from them and given to the supervisors. They have the power to do nothing but to approve or disapprove of the acts of the supervisors.

But not only is the duty not imposed and the power not given, but if there was as perfect a concurrence of the two as is pointed out by the Court in Duckett's Case, there would still be lacking the agents through whom to perform this duty and to exercise this power. The supervisors are not to be appointed until January, 1876.

In addition to the absence of the duty and power to take charge and control of the roads and bridges, and of the agents to carry out the provisions of the law, the Act of 1874, is equally imperfect in respect to the means to be expended for this purpose.

Arthur W. Machen and Thomas Donaldson, for the appellees.

There can be no question that sections one, five and eleven of Article 28 of the Code of Public General Laws, render the appellants liable, unless they are exempted from such liability by some other legislation. County Comm'rs of Anne Arundel Co. vs. Duckett, 20 Md., 468; County Comm'rs of Calvert Co. vs. Gibson, 36 Md., 229; Act of 1865, ch. 85.

The appellants claim to find such exemption in the provisions of the local law of 1874, ch. 274. The Code of Public Local Laws, Article 3, entitled ""Baltimore County," sub-title Roads, secs. 149 to 157, contained certain provisions of a special character, which were all repealed and...