Walter v. Board of Com'rs of Montgomery County

• Decision Date: 06 November 1941
• Docket Number: 23.
• Parties: WALTER v. BOARD OF COUNTY COM'RS OF MONTGOMERY COUNTY.
• Court: Maryland Court of Appeals

22 A.2d 472

179 Md. 665

WALTER v. BOARD OF COUNTY COM'RS OF MONTGOMERY COUNTY.

No. 23.

Court of Appeals of Maryland

November 6, 1941

Appeal from Circuit Court, Montgomery County; Stedman Prescott and Charles W. Woodward, Judges.

Action by Roscoe F. Walter against the Board of County Commissioners of Montgomery County for a writ of mandamus to compel and require the Board to make proper repairs to certain designated highways so as to render such highways safe and usable. From an order sustaining a demurrer to his petition petitioner appeals and the Board of County Commissioners move to dismiss the appeal.

Appeal dismissed.

Roscoe F. Walter, of Derwood, pro se.

Joseph A. Cantrel, of Washington, D. C., for appellees.

Argued before BOND, C.J., and SLOAN, JOHNSON, DELAPLAINE, COLLINS FORSYTHE, and MARBURY, JJ.

JOHNSON Judge.

This is an appeal from an order of the Circuit Court for Montgomery County sustaining a demurrer filed by appellees to appellant's petition for the writ of mandamus to compel and require the Board of County Commissioners of Montgomery County, specifically named therein, 'instanter to make proper repairs to highways Nos. 1 and 2 and render the same safe and usable to the petitioner and the public at the earliest possible date'. The petition was filed by appellant as a citizen, taxpayer and resident of the county, whose home was upon a farm one mile from the post office of Derwood, the farm being located upon two highways and designated as Nos. 1 and 2, No. 1 extending from Derwood to Redlands, and No. 2 extending from its junction with the main public paved highway between Redlands and Norbeck to a point where highway No. 2 adjoins No. 1 within one and one-half miles from Derwood. It was alleged that the two highways mentioned were the only ones available to the petitioner for egress from his home by the ordinary mode of travel to all points beyond its termini; that in the vicinity of the petitioner's home eleven other families resided whose situation was similar to petitioner's respecting availability and use of the public roads; that the two roads were mail routes, over which the United States Mail Carrier operated daily when the roads were in condition to permit the same; that they were regularly used by school buses in transporting school children of such families living thereon and that situated along highway No. 1 was a public cemetery served only by that route, and that the petitioner had a right to demand that said highways be kept safe and passable for all ordinary modes of transportation, but that for some weeks previously and at the time of filing the petition both of said highways were in an unsafe and impassable condition and at numerous times within recent weeks the petitioner and other users thereof had found the same impassable and dangerous and had experienced the situation that their vehicles of travel had been stalled thereon, due to soft and muddy condition of the road beds, with the result that the safety of the petitioner and other travellers using the highways had been imperiled and their vehicles had been permanently damaged at a great financial cost to them, requiring operators with towing apparatus to remove their vehicles thus stalled on the roads, which had not for this reason been available to them and the Commissioners had exclusive jurisdiction over the roads imposed upon them by law, and it was their duty and obligation to maintain the same in usable and safe condition at all times. The demurrer to that petition challenged the jurisdiction of the Court over the subject matter of the suit, and further alleged that the petition on its face showed that the acts sought to be remedied were governmental and not ministerial in character.

A hearing was held on the demurrer and subsequently on April 10th, 1941, the Court filed a memorandum and an order sustaining the same and without any further proceedings, the appeal was noted on May 2nd. A motion has been made to dismiss the appeal, because it was not taken from a final judgment, and this we will first consider.

By Article 5, Section 3, Code of Public General Laws of Maryland, it is provided that 'any party to a writ of mandamus may appeal; and petitions assigning errors may be filed in civil or criminal cases, in lieu of the formal writs of error heretofore issued in this State, in cases where writs of error were formerly allowed.' So that while it is undisputed that an appeal is provided a party to a mandamus proceeding, may he prosecute it before a final judgment is entered granting the same or dismissing the petition? The question was specifically answered by this Court in Watts v. President, etc., of Village of Port Deposit, 46 Md. 500. In that case it was distinctly held that to warrant an appeal there must be a final judgment in favor of the petitioner granting the writ, or a final judgment in favor of the defendant dismissing the petition, and upon the sole ground that there had been no final judgment entered by the Court below, the appeal which was taken from the order of the trial Court overruling a demurrer to the answer was dismissed. The reason for such holding is obvious and founded in the fact that mandamus is legal rather than an...