State v. Rich

• Decision Date: 10 November 1915
• Docket Number: 1.
• Citation: 95 A. 956,126 Md. 643
• Parties: STATE, to Use of WATKINS. et ux., v. RICH et al., State Roads Commission.
• Court: Maryland Court of Appeals

95 A. 956

126 Md. 643

STATE, to Use of WATKINS. et ux., v. RICH et al., State Roads Commission.

No. 1.

Court of Appeals of Maryland

November 10, 1915

Appeal from Superior Court of Baltimore City.

Action by the State, to the use of George A. Watkins and another against Upshur D. Rich and others, constituting the State Roads Commission. Judgment for the Commission, and plaintiffs appeal. Affirmed.

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

John Philip Hill, of Baltimore (Floyd Johnson Kintner, of Baltimore, on the brief), for appellants. Leon E. Greenbaum of Baltimore, for appellees.

URNER J.

The state roads commission was sued in this case, jointly with an individual defendant, upon a declaration which alleged that in the course of the construction or repair of a public highway, the defendants negligently permitted a dangerous embankment or culvert, where the road crosses a stream, to be without a guard rail or other protection, and without a warning light at night, and negligently allowed the road to be open for use while the embankment or culvert was thus unprotected, and left in the bed of the road near the embankment a pile of stone, gravel, and sand, constituting a dangerous nuisance, and that, in consequence of the negligence thus charged, the son of the equitable plaintiffs, while traveling on the highway and exercising due care, fell over the embankment or culvert in the darkness, and received injuries which resulted in his death. A demurrer to the declaration was filed in behalf of the state roads commission, and was sustained by the trial court, without leave to amend, and judgment was entered for the defendant commission.

The only question presented by the appeal is whether a suit is maintainable against the state roads commission for personal injuries occasioned by negligence occurring in the execution of the roadwork committed to its control. The powers and duties of the commission are prescribed by Acts of 1908, c. 141, and certain supplemental statutes, all of which are embodied in article 91 of the Code of Public General Laws under the subtitle, "Public Roads." It was the object of this legislation to establish for the state a general system of improved highways. The state roads commission was created as the agency through which that purpose was to be accomplished. It was provided that the commission should "select, construct, improve and maintain such a general system of improved state roads and highways," through all the counties of the state, as could "reasonably be expected to be completed with the funds" to be derived from the loan authorized by the original statute. The available proceeds of the loan were directed to be used, in the respective counties, in proportion to their existing road mileage, for the construction, improvement, and maintenance of the highway system upon which the commission should determine. Additional funds were provided by subsequent acts, and were required to be applied to the objects just described.

The reference we have made to the purpose for which the state roads commission was created is sufficient to show that it is distinctively a governmental agency, charged with the exercise of an important public function. The establishment and maintenance of highways for the use of the people is essentially a duty and prerogative of government. Bonsal v. Yellott, 100 Md. 507, 60 A. 593, 69 L. R. A. 914. The state could act only through its agents in the prosecution of its policy of road improvement, and it organized the roads commission as the particular agency for utilizing a portion of its power and resources to that end. In view of the relation which the commission thus bears to the state, it is entitled, in a case like the present, to the benefit of the state's immunity from suit, unless it has been made liable to be sued for negligence by legislative enactment. The theory upon which the state is held to be exempt from such a liability is that the prosecution of suits against it, without its consent, would be incompatible with its sovereignty, and that any claim as to which it ought justly to assume responsibility would be satisfied voluntarily through the action of the Legislature. State v. Baltimore & Ohio R. R. Co., 34 Md. 374; Poe's Pleading (4th Ed.) § 512.

In Weddle v. School Commissioners, 94 Md. 334, 51 A. 289, it was determined that a board of county school commissioners is not amenable to an action of tort, in the absence of statutory authority for such a suit. The Code provision that the board should be capable to sue and be sued was held not to have the effect of subjecting it to liability for negligence in the performance of its duties, inasmuch as it had no power to raise money for the purpose of paying damages, and the funds placed in its custody were appropriated by law to other objects from which they could not be diverted. The same considerations are present and must control in the case now before us for decision.

By section 78 of article 91 of the Code, under the subtitle to which we have referred, the state roads commission is made liable to be sued "for a violation or contemplated violation of any of the provisions of this subtitle or contract thereunder with respect to any road or roads within" any county in which the powers of the commission are being exercised. This provision has been held to authorize a suit for an injunction to restrain the commission from an application of funds alleged to be contrary to the intention of the Legislature. Weller v. Mueller, 120 Md. 633, 87 A. 1045; Magruder v. State Roads Commission, 125 Md. 525, 94 A. 153. In the case of the State Roads Commission v. Postal Tel. Co., 123 Md 73, 91 A. 147, where the right of the commission to sue for certain bridge rentals on behalf of the state was sustained, it was said that the commission could sue, and was liable to be sued, with respect to all matters within the scope of its duties and obligations. A similar expression was used in the Weddle Case in reference to the capability of school commissioners to sue and be sued. But the omission of the Legislature to provide such an agency with the means of satisfying...