County Commissioners v. Baker

Act of 1874, ch. 274, relating to the appointment of Road Supervisors for Baltimore County, &c. — Article 28 of the Code as amended by the Act of 1865, ch. 85 — Liability of the County Commissioners of Baltimore County for Injuries occasioned by the want of repair of a Bridge on a public road in the County. Assuming that the Act of 1874, ch. 274, relating to the appointment of road supervisors for Baltimore County, and to their powers and duties, upon its passage repealed the antecedent public local law of the county in regard to tlie repair of roads and bridges therein; and by its second section postponed the appointment of road supervisors thereunder until January, 1876, it does not follow that during the interval beiween the approval of the Act, and the time when the supervisors were to be appointed, the powers and duties of the County Commissioners over the roads and bridges and their necessary repairs, were suspended in all respects, and that they are to be treated as absolved from responsibility on that account. The provisions of Article 28 of the Code, amended by the Act of 1865, ch. 85, are operative as the public general law, when not in conflict with the public local law; and there is no conflict between the provisions of said Article of the Code, and the Act of 1874, ch. 274, to prevent the application of the former to Baltimore County, so tar as the power of the Commissioners over the repair of bridges and roads is concerned, until they can carry into effect the said law of 1874, by the appointment of road supervisors according to its requirement. “ A person while crossing a bridge on a publie road in Baltimore County, on the 29th of April, 1874, after the Act of 1874, ch. 274, went into effect, was injured. In an action against the County Commissioners to recover damages for the injuries thus sustained, it was Held : That under the first section of Article 28 of the Code of Public General Laws, as amended by the Act of 1865, ch. 85, the County Commissioners of Baltimore County had ample authority to appoint such officers and agents as were necessary to keep the bridges on the public roads in proper repair; and it was the duty of the Commissioners to see that such appointees discharged their trust; and if through failure to have the bridge in question properly repaired, the plaintiff while crossing it was injured, the Commissioners were liable.

Appeal from the Circuit Court for Howard County. This was an action brought on the 18th of November, 1874, in the Circuit Court for Baltimore County, by the appellees against the appellants, to recover damages for injuries sustained by the appellee, Mary E. Baker, on the 29th of April, 1874, while crossing a bridge on a public road in Baltimore County. The case was removed to the Baltimore City Court, and thence to the Circuit Court for Howard County, where it was tried. The defendants demurred to the declaration ; the demurrer was overruled ; the defendants then pleaded “not guilty,” and issue was joined on the plea. The verdict was for the plaintiffs, and judgment was entered accordingly. The defendants appealed. No exceptions were taken. The Act of 1853, ch. 239, incorporated in Article 28 of the Code of Public General Laws, constitutes the general law of the State, at the present time, prescribing the duties of the County Commissioners of the various counties, and in so far as it is not repealed by any Public Local Law, is to be held applicable to Baltimore County. The agents necessary to carry out the duty imposed on the Commissioners are provided for under the Act of 1853, ch. 300, incorporated in the Code of Public General Laws Art. 90. They are road supervisors, “whose duty it shall be to superintend and direct the repairs of the public county roads and bridges within his election district in such manner, and under such regulations and restrictions, as may bo directed by the County Commissioners.” By the 16th section of the same Act, “the County Commissioners shall have the power to revoke the commission of any road supervisor at any time during his term of office for neglect of duty or malfeasance in office, and shall have power to till any vacancy that may occur from any cause in the office of road supervisor, for the remainder of the term that shall become vacant.” Under this Act, the road supervisors were elected by the people of the respective counties, but the Act of 1865, ch. 85, gives the Commissioners the power of appointing them, and takes their election from the people. Here we have, under the general law of the State, ample authority given to the County Commissioners to repair roads and bridges. It was under this state of the law, that the case of the County Commissioners of Anne Arundel Co. vs Duckett, 20 Md., 468, was decided. Following the case of the Mayor and City Council vs. Marriott, 9 Md., 178, the Court declare that the defendants “were not liable at common law,” but that “the statutes of the State fixed their liability,” and they held the Commissioners in that case liable, because, under the Acts of 1853, ch. 239 and 300, under which they were acting, there was a concurrence of all the conditions necessary to constitute legal liability ; a duty imposed by law, means and agents placed at their command to execute it, and capacity to sue and be'sued, imposed by the Act of their creation. In the case of Flynn vs. The Canton Company, 40 Md., 322, the Court says, “ after a careful review of the Maryland decisions, which are above referred to, it is manifest the liability of the corporate authorities in actions like the present, rests not simply upon the ground that a statute has imposed upon them a duty, but upon the further fact also that it has provided them with the means, and clothed them with the power to enforce or discharge that duty.” If then the appellants are clothed with the same or equal powers, which were held sufficient to create liability in Duckett’s Case they have no case for this Court. But they have no such powers. There is no such concurrence. They have, perhaps, the power to collect means to provide ■ for the opening of new roads, and the building of new bridges, and for the repair of old roads and bridges, but no duty is imposed upon them ; the power and control over roads and bridges is absolutely taken from them, and they have no agents given them, even if they had the necessary power, through whom the means could properly be disbursed. Instead of having that clear statutory .power which is necessary to take them from the rule of the common law, their power is absolutely struck down or at best is impossible of intelligent construction. The present road law of Baltimore County is contained in ch. 274, of the Acts of 1874. The county has had a local road law for many years. Prior to the adoption .of the Code of Public Local Laws, and after its adoption up to the year 1868 this law was to be found in Article 3, Code Local Laws, sections 149 to 157 inclusive. The Act of 1868, ch. 411, repealed these sections, and was in its turn repealed by the Act of 1870, ch. 309, and the Act of 1870 in its turn repealed by the Act of 1874, ch. 274. This Act of 1874, has been fully recognized by this Court as the present road law of Baltimore County, in the recent case of Wade, et als. vs. St. Mary’s Industrial School, &c., 43 Md., 178. In that case the Court stopped the construction of Wilkens’ Avenue, upon which many thousands of dollars had been expended, and which was being constructed under the Act of 1870, on the ground that the Act of 1870 was repealed without any saving clause as to proceedings in fieri under it, by the Act of 1874: — That by the Act of 1874, new officers with new duties to perform, were created, differing in character, &c., from the officers, &c., contained in the Act of which it was the substitute. The Act of 1874 took effect from the date of its passage and was approved by the Governor on the 11th of April, 1874, just eighteen days before the accident happened to the appellee. The second section of the Act provides “that the County Commissioners of Baltimore County shall, at their first meeting in 1876, and at their first meeting in January of every second year thereafter, appoint for each election district of Baltimore County, three competent, sober, discreet and trustworthy persons, residents of said county, and of the election districts for which they may be severally appoined, to act as road supervisors of that district for the term of two years, or until their successors are appointed and qualified.” No provision is made for the appointment of the supervisors from the 11th of April 1874, the date of the approval of the Act, to the 1st January, 1876. The duty “to take charge of, and control over, the county roads and bridges ” which was given the Commissioners under the General Act of 1853, ch. 239, and which was so strongly relied upon by the Court in Duckett’s Case as fixing their liability, is taken from them by the Local Act of 1874, and tranf'erred to the road supervisors. And these road supervisors, instead of “superintending and directing the repairs of county roads and bridges, in such manner and under such regulations and restrictions as may be directed by the County Commissioners,” as provided by the General Act of 1853, ch. 300, which was also much relied upon by the Court in Duclcett’s Case, are given this charge and control over the roads and bridges, “subject to the approval of the Commissioners.” The authority of the Commissioners is merely judicial, to approve of acts when done, and, upon charges preferred, and notice, given, and a hearing had, to decide upon removal. They are no longer, in the language of Duclcett’s Case, expressly required to direct the manner of the application of the money raised to repair roads and bridges. This, duty is expressly taken from them and given to the supervisors. They have the power to do nothing but to approve or disapprove of the acts of the supervisors. But not only is the duty not imposed and the power not given, but if there was as perfect a concurrence of the two as is pointed out by the Court in Duckett’s Case, there would still be lacking the agents through whom to perform this duty and to exercise this power. The supervisors are not to be appointed until January, 1876. In addition to the absence of the duty and power to take charge and control of the roads and bridges, and of the agents to carry out the provisions of the law, the Act of 1874, is equally imperfect in respect to the means to be expended for this purpose. There can be no question that sections one, five and eleven of Article 28 of the Code of Public General Laws, render the appellants liable, unless they are exempted from such liability by some other legislation. County Comm’rs of Anne Arundel Co. vs. Duckett, 20 Md., 468; County Comm’rs of Calvert Co. vs. Gibson, 36 Md., 229; Act of 1865, ch. 85. The appellants claim to find such exemption in the provisions of the local law of 1874, ch. 274. The Code of Public Local Laws, Article 3, entitled “Baltimore County,” sub-title Roads, secs. 149 to 157, contained certain provisions of a special character, which were all repealed, and others substituted for them by the Act of 1868, ch. 411. — And these, in turn, were repealed, by the Act of 1870, ch. 309. Finally, the Act of 1870, ch. 309, was repealed by the Act of 1874, ch. 274, and the provisions of the latter substituted therefor. Consequently all the law on the subject is to be found in the Code of General Laws, Article 28, and in the Act of 1874, ch. 274; the provisions of the general law being in force in Baltimore County, except in so far as operative provisions of the last mentioned local Act may bo found inconsistent with them. Even under the crude and cumbrous scheme of the Act of 1874, ch. 274, or of the repealed Act of 1870, ch. 309, if supposed to be in operation, the County Commissioners would possess such powers, and consequent duties, as would fix them with liability for the negligent omission to repair county bridges, upon the principles of Duckett’s Case and Gibson’s Case. One-third of the whole road and bridge fund is kept directly under the control of the County Commissioners — Act 1874, ch. 274, sec. 12; and when the money from this source in the county treasury is not sufficient, they are authorized to borrow an additional sum upon the credit of the county, to be paid back after-wards out of the general fund — Ib. sec. 13. Besides this, all supervisors are to be appointed by the County Commissioners ; all they do is to be subject to the approval of the County Commissoners, (sec. 10,) in whom also a power of removal is vested, (section 6.) And the supervisors are responsible only to the County Commissioners. The bond their chairman gives is to the County Commissioners, and contains no provision for the benefit of individuals suffering by neglect of the supervisors. See County Commissioners of Calvert Co. vs. Gibson, 36 Md., 229.