Bembe v. County Commissioners

McSherry, C. J., delivered the opinion of the Court. This is an application for a writ of mandamus. The purpose for which the relators seek the writ is to compel the ³³¹ County Commissioners of Anne Arundel County to repair a county bridge over Back creek. The bridge was constructed some years ago.

It is a draw-bridge over a navigable river. Its erection was authorized by the General Assembly under the Act of 1886, ch. 483. The draw in the bridge has become defective and cannot be operated. It stands open and the bridge is consequently useless.

The defect is conceded and the single question is : Will a writ of mandamus lie to require the County Commissioners to make the needed and proper repairs ? As has been repeatedly said by this and other Courts, the writ of mandamus is a prerogative writ and does not issue ex debito justitice. There must be a clear, legal right in the relators and there must be an absence of an adequate legal remedy for the vindication of that right before redress by mandamus can be accorded. If, then, there be an adequate legal remedy to which the relators may appeal, there would be no authority for ordering the writ to be issued.

In this view the controversy is materially simplified, as it hinges on the single question as to whether there is an adequate legal remedy for the redress of the wrong complained of and practically conceded. The Code furnishes an answer in the affirmative to that question ; and we are consequently relieved from the necessity of commenting on the reasons assigned for the non-repair of the bridge, and we are likewise relieved from discussing many questions which would otherwise demand consideration. By sec. 13, Art. 25 of the Code it is provided that the County Commissioners of the several counties “ may build and repair bridges and levy upon the property of the county therefor.” By sec. ip to and including sec. 34 of the same Article the method of proceeding relating to the building and repairing of bridges is particularly prescribed. In brief outline this method is as follows: Whenever it is deemed necessary that a bridge should be built or that a bridge already built should be repaired, application must be made by petition to the County Commissioners, after the publication, for thirty days, of a notice that the petitioners intend to make applica ³³² tion for the construction or repair of the bridge.

After the County Commissioners have heard the reasons and evidence for and against the application they are required to determine the case, as in their judgment, will best promote the public convenience; and they are also directed, when they have determined to build or repair a bridge, to levy on the assessable property of the county a sum sufficient to defray the expense of the work. All bridges are required to be built or repaired by contract, except where the cost of building or repairing does not exceed two hundred dollars. In the'latter instance the manner of letting the work is placed in the discretion of the County Commissioners. In all cases where the County Commissioners have determined to build or to repair a bridge any citizen or citizens of the county, before a contract to build or to repair has been made, may in writing file a representation that the determination to so build or repair is inexpedient, and may request an appeal from such determination to the Circuit Court for the county.

Upon such appeal being taken all the records, papers and proceedings in the case must be transmitted to the Circuit Court, “ and thereupon the Circuit Court shall proceed to try and determine the matter according to justice and right, with or without the aid of a jury, as the parties may agree or the Court may order.” By sec. 31 it is enacted that ‘ ‘ nothing contained in this Article shall authorize any County Commissioners to build or order to be built any draw-bridge, or any bridge across a navigable