State v. American Bonding Co. of Baltimore

• Decision Date: 05 April 1916
• Docket Number: 30.
• Citation: 97 A. 529,128 Md. 268
• Parties: STATE, to Use of COUNTY COM'S OF PRINCE GEORGE'S COUNTY, v. AMERICAN BONDING CO. OF BALTIMORE et al.
• Court: Maryland Court of Appeals

97 A. 529

128 Md. 268

STATE, to Use of COUNTY COM'S OF PRINCE GEORGE'S COUNTY, v. AMERICAN BONDING CO. OF BALTIMORE et al.

No. 30.

Court of Appeals of Maryland

April 5, 1916

Appeals from Circuit Court, Prince George's County; Fillmore Beall and B. Harris Camalier, Judges.

Five actions each by the State, to the use of the County Commissioners of Prince George's County, against one Dent and the American Bonding Company, Thomas T. Shea and another William E. Mudd and another, Arthur H. Simpson and another and Arthur B. Duley and another, respectively. From judgments non pros. entered in each suit after demurrer sustained to the complaint, the State appeals. Affirmed.

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

Ogle Marbury, of Baltimore (Gerald F. Kopp, on the brief), for appellant. T. Howard Duckett, of Washington, D. C., and M. Hampton Magruder, of Upper Marlboro (Duckett & Son, of Washington, D. C., and S. Marvin Peach, of Upper Marlboro, on the brief), for appellees.

STOCKBRIDGE J.

The appeal presented in this record is in reality an appeal in five separate and distinct cases. In each case the plaintiff is the state of Maryland, to the use of the county commissioners of Prince George's county, and the action is upon a bond which had been given by the defendants for the performance of certain duties. The suit against Dent and the United States Fidelity & Guaranty Company was upon a bond of $5,000 for the faithful performance by Dent of the duties of road engineer of Prince George's county, given in accordance with the provisions of an act of the General Assembly of 1910 (chapter 90). The suit against Thomas T. Shea and the same surety was on a bond for $2,000 for the proper performance of the duties of road director; that against William E. Mudd and the American Surety Company of New York was on a like bond for Mudd, as road director; that against Simpson and the American Bonding Company was a similar suit growing out of Simpson's position as road director; and that against Arthur B. Duley, W. H. Gibbons, and W. C. Duley was a like suit, Arthur B. Duley having been also one of the road directors of that county.

The declaration does not set forth a specific breach of the bond, but the alleged breach is disclosed by the bill of particulars, and consists in this: That by the act of 1910 the road directors and engineer were to divide a certain sum, to be raised by an issue of bonds of the county, among the four road districts of the county in proportion to the respective road mileage in each of the four road districts into which the county was divided, and this it is alleged has not been done.

The total amount of diversions claimed in the suit against Dent amounts to $7,047.13; as against Shea, $2,753.01; as against Mudd, $747.60; as against Simpson, $2,214.45, and as against Duley, $1,431.90.

There is no claim or pretense that either the engineer or road directors appropriated any of this money to their personal use, and the diversion alleged consists solely in this: That the sums expended in the road districts did not bear the proportion to the road mileage of the district which was called for by the act of 1910. To the declaration in each case a demurrer was filed, which demurrer was sustained, and a judgment of non pros. entered, and it is from that judgment that the appeals have been taken.

Quite a large number of grounds have been presented in support of the demurrer, but it is not necessary for the determination of this case to consider more than one or two of them. A short recital of certain of the legislative provisions is, however, necessary.

In 1910 the Legislature by chapter 90 created a board of road directors for Prince George's county, and constituted that board a body corporate with powers, duties, and obligations coextensive with those theretofore resting on the county commissioners or the board of highway commissioners of the county. The county was divided by section 281 into four road districts, and the board of road directors was given supervision over all public highways and bridges, except state roads and state aid roads. Succeeding sections made provision for the bonding of the road directors and road engineer, and prescribed the powers of each. By section 286 it was provided that the total sum received for the use of roads and bridges from any source after payment into the redemption fund should be divided into four parts, one of which was to be used for the purpose of paying all overhead charges, including salaries, and then--

"the remaining three parts shall be equally divided among the four road districts herein created for use upon the roads and bridges of the respective districts, and the sum so allotted to each road district shall be divided, among the election districts of the respective road districts, according to their road mileage; and the engineer shall keep a separate itemized account of all expenditures, seeing to it that no road district exceeds its allotment." The subsequent sections of the act give authority to raise by loan and the issuance of the bonds of the county a sum not exceeding $16,000 to be used upon the roads. The defendants in the several suits already referred to were the four road directors and the road engineer, and the theory upon which these suits were instituted grows out of the language quoted from section 286 for the several diversions already mentioned.

By chapter 801 of the Acts of 1914...