O'Brian v. Baltimore County Com'rs

• Decision Date: 06 March 1879
• Citation: 51 Md. 15
• Parties: PATRICK O'BRIAN and THOMAS HARDEN, trading as P. O'BRIAN & Co. v. THE COUNTY COMMISSIONERS OF BALTIMORE COUNTY.
• Court: Maryland Court of Appeals

51 Md. 15

PATRICK O'BRIAN and THOMAS HARDEN, trading as P. O'BRIAN & Co. v. THE COUNTY COMMISSIONERS OF BALTIMORE COUNTY.

Court of Appeals of Maryland

March 6, 1879

APPEAL from the Baltimore City Court.

In this case, removed from the Circuit Court for Baltimore County, on the suggestion and affidavit of the plaintiffs, in addition to the statement thereof contained in the opinion of the Court, the following is inserted as the contract therein referred to:

This agreement, made this 21st day of September, A. D. 1875 between D. J. McCauley, Edward Rider and Benjamin F. Jordan County Commissioners of Baltimore County, and P. O'Brian & Co., contractors for building Wilkens' avenue:

Whereas the Court of Appeals of Maryland in a late decision in the case of Wade, et al. vs. The St. Mary's Industrial School, have decided that the said O'Brian & Co. cannot proceed to finish Wilkens' avenue under their contract with the County Commissioners, and that said Commissioners cannot collect the balance of the assessment due for said avenue:

And whereas, said avenue has been nearly completed between the Maiden's Choice road, where the Potomac Railroad crosses the same, and the Rolling road, and a large sum of money has been expended by the property owners in that part of the county for the same, and it is considered advisable in the public interest, that said avenue should be finished between the points above named.

This agreement witnesseth, that William H. Shipley, Esq., County Surveyor, shall make an estimate of the amount required to finish said road between the points above named, and the said County Commissioners agree to pay the said O'Brian & Co. the contract price per cubic yard for finishing the same, and the said O'Brian & Co., hereby agree to finish the said avenue between the points above named, upon payment to them in monthly installments of said estimate of W. H. Shipley.

D. J MCCAULEY. BENJAMIN F. JORDAN,

EDWARD RIDER, County Comm'rs of Baltimore County.

PATRICK O'BRIAN & Co.

The cause was submitted to BARTOL, C.J., BRENT, GRASON, MILLER and ALVEY, J.

Fielder C. Slingluff, for the appellants.

L. P. D. Newman and John T. Ensor, for the appellees.

BARTOL C.J., delivered the opinion of the Court.

This suit was instituted by the appellants to recover the sum of $3002.13 for work done on "Wilkens' avenue," under a contract made with the appellees on the 21st day of September, 1875.

The plaintiffs, after proving the contract, (p. 17, ante) their employment under it, and that they did the work in accordance therewith, and the value and amount thereof; produced the Act of 1876, ch. 101, for the purpose of showing that "Wilkens' avenue" was a public road of Baltimore County; but the defendants objected to the introduction of the Act; " first, because the same was unconstitutional; and secondly, because the Act having been declared unconstitutional by the Circuit Court for Baltimore County on an appeal of P. O'Brian & Co. (the plaintiffs) to said Court, from an order of the County Commissioners declaring said Act unconstitutional, the question could not be inquired into in this case, and that the said decision of the Circuit Court for Baltimore County was final as to the unconstitutionality of the Act of 1876, so far as the plaintiffs were concerned." In support of the second objection, certain proceedings before the County Commissioners, and before the Circuit Court on appeal, were offered by the defendants, in which the Act of 1876 had been decided to be unconstitutional. Whereupon the objection was sustained, and the City Court refused to permit the Act of 1876 to be given in evidence. This ruling forms the subject of the first bill of exceptions.

The plaintiffs then, to establish the fact that "Wilkens' avenue" was a public road of Baltimore County, offered the record of proceedings for the opening of said avenue, under the provisions of the Act of 1870, ch. 309, which are set out in this bill of exceptions; but the City Court decided that these proceedings were not sufficient to show that Wilkens' avenue had been made a public road, inasmuch as the appeal of "St. Mary's Industrial School" was then still pending, and that the contract made by the defendants with the plaintiffs, set forth in the first bill of exceptions, which is made a part of this bill of exceptions, was ultra vires; and refused to admit said record in evidence for the purpose stated; to this ruling the plaintiffs excepted.

In order to understand the questions raised by these bills of exception, it is necessary to refer to the proceedings relating to the opening and condemning of Wilkens' avenue, as they are disclosed in the record. These are succinctly and correctly stated in the appellants' brief as follows:

"In June, 1872, certain land owners residing in the First and Thirteenth Districts of Baltimore Connty, filed a petition under the Act of 1870, ch. 309, the then existing road law of Baltimore County, asking for the opening of "Wilkens' avenue' from Gwynn's Falls near the city limits, to the Rolling road, a distance of about 3 1/2 miles. This petition took its proper course under the Act of 1870, and on the 14th day of May, 1873, the proceedings were finally ratified and confirmed by the County Commissioners, and Wilkens' avenue was declared to be a public road of Baltimore County. No appeal from this order of ratification was taken, as provided by law, by any of the parties in interest, and a contract for the construction of the avenue was duly made with the appellants."

"They proceeded to construct the avenue, and completed about two-thirds of it, at a cost of some $30,000 or $40,000, and the County built a large and expensive bridge over Gwynn's Falls."

On the 26th day of August, 1873, more than three months after the proceedings had been ratified, the County Commissioners passed the following order:

"The County Commissioners of Baltimore County, having on the 14th day of May, 1873, adjudged, determined and ordered, that the proceedings of the Road Supervisors of the First and Thirteenth Districts, acting as a Joint Board on the matter of the petition for the opening of Wilkens' avenue, be and the same are finally ratified and confirmed, and that the said road be, and the same is hereby declared to be a public road, to be kept in order, as all public roads in said County are by law directed to be kept; and whereas said order was passed with the understanding that the objections filed by 'St. Mary's Industrial School for Boys in Baltimore City' would be amicably settled; and whereas it appears that the said order was passed inadvertently, and by mistake and under misapprehension, so far as 'St. Mary's Industrial School for Boys' was concerned. Now it is this 26th day of August, 1873, adjudged, ordered and determined, that said order, dated the 14th day of May, 1873, be and the same is hereby rescinded and repealed, so far as St. Mary's Industrial School for Boys is concerned, and that a warrant issued to the Sheriff of Baltimore County, directing him to summon a jury of twenty disinterested freeholders, to meet on the premises of said 'St. Mary's Industrial School for Boys,' to consider the award or judgment of said Supervisors above named; and it is further adjudged, determined and ordered that the proceedings of said Road Supervisors above named, be and the same are hereby finally ratified and confirmed in every other respect, and they remain hereby finally ratified and confirmed."

Signed by the Commissioners.

Before the jury assembled, the "St. Mary's Industrial School" filed their bill praying for an injunction to restrain the construction of the avenue through their premises. This injunction case was tried in this Court. Wade vs. St. Mary's Industrial School, 43 Md., 178.

The single question decided on that appeal was, that the Act of 1874, ch. 274, having repealed the Act of 1870, ch. 309, under which the avenue was being constructed, without a saving clause for work in fieri. Under the Act of 1870, the construction of the avenue could not be proceeded with in the manner prescribed by the Act of 1870. After this decision, the parties interested, desiring to have the avenue finished, and to provide for payment of the amount due the contractors and remaining unpaid, because of the inability of the County Commissioners to collect the assessments after the repeal of the Act of 1870, and the decision in the case of Wade vs. The St. Mary's Industrial School, procured the passage of the Act of 1876, ch. 101, which was intended as a curative Act, to remedy the mischief done by the omission of a saving clause in the Act of 1874, ch. 274.

After the decision by this Court of Wade's Appeal, the County Commissioners, desiring to preserve so much of the avenue as had been constructed, and to complete a certain portion of it, to make it available for travel, made the contract with the appellants of September 21, 1875, under which the work was done for which this suit was brought.

The Board of Examiners, appointed by the Act of 1876, ch. 101 made a report of their proceedings to the County Commissioners, for ratification or rejection; but the latter being of opinion that the Act of 1876 was unconstitutional, rejected the report and passed an order quashing the proceedings. From this order an appeal was taken by O'Brian & Co., the present appellants, and the order was affirmed by the Circuit Court, for the reason and upon the ground stated in the Court's opinion, that the Act of 1876 was unconstitutional, because the same was in conflict with sec. 33, Art. 3, of the Constitution, which prohibits the Legislature from " passing a special law, for any case, for which provision has been made by an existing...