Richardson v. Kent County Com'rs

• Decision Date: 08 April 1913
• Citation: 87 A. 747,120 Md. 153
• Parties: RICHARDSON v. KENT COUNTY COM'RS et al.
• Court: Maryland Court of Appeals

87 A. 747

120 Md. 153

RICHARDSON v. KENT COUNTY COM'RS et al.

Court of Appeals of Maryland

April 8, 1913

Appeal from Circuit Court, Talbot County; Wm. H. Adkins and Philemon B. Hopper, Judges.

Action by Harry T. Richardson against the County Commissioners of Kent County and Isaac Gibbs, Jr., County Engineer for Kent County. From a judgment sustaining the demurrer of defendants, plaintiff appeals. Reversed, and a new trial awarded.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

S Scott Beck, of Chestertown, for appellant. Hope H. Barroll of Chestertown, for appellees.

THOMAS J.

This suit was brought by the appellant against the county commissioners and Isaac Gibbs, Jr., county road engineer, of Kent county, to recover for an injury to his horse while being driven over one of the public roads of said county.

The amended declaration charges that the defendants are bound to keep the public roads of the county in repair and in such condition as to "afford free and safe passage over the same"; that "one of said roads, namely, the public road leading from Langford to St. Paul Church," on the 29th day of May, 1911, "was negligently suffered by the defendants to be out of repair and in an unsafe condition for travel over the same by suffering a large hole to be and remain in the bed of said road for a long time, whereby the plaintiff's horse, while traveling over said road and being properly driven along" the same with due care "was seriously injured," etc. The defendants filed separate demurrers to the declaration; the demurrers were sustained by the circuit court for Talbot county, to which the case was removed for trial; and, from a judgment in favor of the defendants, the plaintiff has appealed.

The county commissioners base their demurrer upon the ground that by the Acts of 1910, c. 403, which was approved April 7, 1910, and became effective from that date, they were completely divested of all control of the public roads of the county and thereby relieved of responsibility for their condition, while the position of the county road engineer is that the statute does not provide a fund out of which he can satisfy a judgment for damages resulting from an unsafe condition of the public roads of the county, and that he is not therefore liable.

By sections 1, 2, and 7 of article 25 of the Code of 1912 the county commissioners of each county in the state are declared to be a corporation and are given "charge of and control over the property owned by the county, and over county roads and bridges." They are authorized to make rules and regulations for repairing the public roads, to provide for the payment of the cost of the same, to levy all "needful taxes," and to pay all claims against the county, and section 4 provides that they may sue and be sued. Section 80 of article 15 of the Code of Public Local Laws also provides that "the county commissioners shall have the general supervision of the public roads in Kent county, and the work done thereon," etc. Under these and like provisions it has been uniformly held in this state that, as the county commissioners are given control of the public roads, are charged with the duty of keeping them in good repair, and are supplied with the means of discharging that duty and to meet their liability, they are liable for injuries caused by any defect in a public road due to their negligence. Co. Com'rs v. Duckett, 20 Md. 468, 83 Am. Dec. 557; County Com'rs v. Gibson, 36 Md. 229; Flynn v. Canton Co., 40 Md. 312, 17 Am. Rep. 603; Country Com'rs v. Duvall, 54 Md. 350, 39 Am. Rep. 393; Baltimore County v. Wilson, 97 Md. 207, 54 A. 71, 56 A. 596; Adams v. Somerset Co., 106 Md. 197, 66 A. 695; Anne Arundel County v. Carr, 111 Md. 141, 73 A. 668.

The Acts of 1910, c. 403, which adds a number of new sections to the Code of Public Local Laws, entitled "Kent County," subtitle "Roads," declares in section 167a that "the county commissioners of Kent county are authorized and empowered to control, and regulate the public roads and bridges in said county, subject to the provisions of this act." Section 167b provides that the county commissioners shall levy a tax of not less than 20 cents on the $100, to be used for the repair and reconstruction of the public roads and bridges in the county; that they may appropriate or levy such other sums as they may deem requisite for building new bridges and opening new roads, and for repairing and reconstructing the public roads and bridges, and that the taxes so levied and collected shall be "disbursed" by them "upon the roads and bridges" in the manner provided by the act. Section 167c requires the Governor to appoint some competent person "who shall have a sufficient knowledge of civil engineering to enable him to accurately make surveys, plats, profiles and specifications of, or the grading, draining, maintenance, repairs and reconstruction of the public roads of said county, and also to do the necessary engineering work for the building or rebuilding of bridges," county road engineer for Kent county for the term of six years at a salary of $1,600 a year; and section 167d provides for his removal by the Governor, upon the sworn complaint of ten or more resident taxpayers, and after notice and a hearing, for incompetency, neglect of duty, or misconduct in office. Section 167e requires the engineer to reside in Kent county "during the term of his office," and then declares that he "shall have entire charge, control, and supervision of the working, repairing, and reconstructing of the public roads and bridges of Kent county and the purchase of the material therefor, and shall make all specifications for the building of new roads and bridges, and shall see that no obstruction, hindrance, or injury is or shall be permitted upon any road or bridge under his supervision as aforesaid. He shall employ such help, terms, and implements and contract for and purchase such material as he may deem necessary for the working, repairing, and reconstructing said roads and bridges, to be paid for by the county commissioners, provided that he shall not employ any laborer to be paid a greater amount than $1.50 per day, without first obtaining the written consent of the county commissioners for each person so employed. He shall have charge and control of all teams, carts, wagons, and other machinery and implements which may be purchased by the county commissioners for the use of said roads. He shall not work out or expend on the roads and bridges of said county a greater amount in any one fiscal year than the amount levied by the county commissioners for the purpose, without obtaining the permission in writing of said commissioners. He shall appear before the commissioners at their first meeting in each and every month and make a statement to them of the work done, material furnished, and money expended. He shall examine and certify to the correctness of all bills and accounts of any work done or materials furnished on any one of the public roads or bridges in Kent county before the same shall be paid by the county commissioners," and by this section he is further required "to make out annually in writing a detail report to the commissioners of all work done on the county roads and bridges for the year, together with the names of all persons working on said roads and bridges, or furnishing material," etc. Section 167h provides that, when any person desires to improve any public road "to an extent beyond that contemplated by the" engineer, he may apply to the county commissioners who shall thereupon order the engineer to examine the location, etc., "and if he shall be of the opinion that the public interest will be promoted thereby he shall report his determination to the county...