Chaney v. Commissioners of Anne Arundel County
| Decision Date | 15 January 1913 |
| Citation | 86 A. 1039,119 Md. 385 |
| Parties | CHANEY et al. v. COMMISSIONERS OF ANNE ARUNDEL COUNTY. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Anne Arundel County, in Equity; Jas. R Brashears, Judge.
Action by W. Frank Chaney and others against the County Commissioners of Anne Arundel County. From an order sustaining a demurrer to the bill, plaintiffs appeal. Affirmed, and bill dismissed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS PATTISON, and STOCKBRIDGE, JJ.
James W. Owens, of Annapolis, for appellants. Ridgely P. Melvin, of Annapolis, for appellees.
The appellants, who are citizens and residents of Anne Arundel county, flied the bill in this case to enjoin the board of county commissioners of that county "from building a wharf on Rockhold creek or at Cedar Point, or at any other point adjacent thereto or elsewhere in the waters of Anne Arundel county without the authority of an act of assembly." The bill was demurred to, demurrer sustained and from the order sustaining it this appeal was taken. It is to be observed in limine that the order sustaining the demurrer neither granted leave to amend nor dismissed the bill, and the order was therefore not strictly such final order as to permit an appeal to be taken from it. The opinion of the circuit judge appearing in the record makes it plain however, that in his view the allegations of the bill did not present a case under which any such relief as that prayed for could be granted, and that the bill would ultimately have to be dismissed. No good end would therefore be accomplished by dismissing this appeal on what is merely a technical defect.
The allegations of the bill are that the county commissioners have advertised for proposals for the construction of a wharf in Rockhold creek; that they further intend to advertise and give out a contract for a wharf to be placed at the mouth of Cedar Point in West river, and also a pier or wharf attached to South river bridge. It is further alleged that Rockhold creek is but a narrow tributary of Herring Bay, and that the produce raised and shipped from there is of infinitesimal value; that the said creek is so narrow and the water so shallow that a vessel drawing over four feet will be unable to get to or from the wharf there, except on very high tide; that no public demand exists for the establishment of such a wharf; that a commission appointed in 1911 reported unfavorably upon the establishment of a wharf on Rockhold creek, which report was adopted by the board of county commissioners, and that subsequently another commission was appointed at the instigation of interested parties, which made a favorable report; that the establishment and building of such wharf or wharves would operate as a distinct injury to the taxpayers of the county; and that the county commissioners have no authority in law to build wharves without an act of the Legislature.
The Code of Public General Laws, art. 25, contains the general grant of powers to county commissioners, as bodies corporate, and contains an enumeration of the powers conferred and the method of their exercise with regard to many matters. The effect of this grant is to vest in the county commissioners but a limited authority (Tasker v. Garrett County, 82 Md. 153, 33 A. 407); and hence they can only perform acts expressly or impliedly permitted by their charter or conferred on them by the General Assembly. Peter v. Prettyman, 62 Md. 571. But, in the performance of their duties and in the execution of the powers expressly or impliedly given them, they are ordinarily vested with the exercise of a discretion. Blundon v. Crosier, 93 Md. 358, 49 A. 1.
The question which presents itself in this case is, Have or not the county commissioners of a county the power to erect wharves as one of the powers expressly or impliedly conferred on them? Sections 105 and 106 of the Code of Public General Laws 1912, art. 25, subtitle "Public Landings," are as follows:
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