Board of County Commissioners v. Jay

Constable, J., delivered the opinion of the Court. This case was, in part, before this Court once before, in the case of Jay v. County Commissioners of Harford County and P., B. & W. R. R. Co., 120 Md. 49 , in which the appellee in the present case was the appellant in that case, endeavoring to have the appellees restrained from closing a public road. The remedy was denied because by Article 25, section 12, of the Code (1912) the power is expressly given to the County Commissioners to open and close public roads, with the right to appeal from their action to the Circuit Court, conferred by Article 5, section 84, Code (1912), and because the bill of complaint could not be sustained upon the ground ³²⁶ of the lack of good faith, or fraud or conspiracy upon the part of the County Commissioners, there being presented no question of a way of necessity. The facts upon which the present appeal and writ of error are based arose in the following manner: The Board of County Commissioners of Harford County, acting under the authority conferred upon them by Article 25, section 12 of the Code (1912), passed an order closing a portion of a public road in Harford County, known as the “Old Mill Road”.

Before the passage of -the order, the course of procedure as prescribed by the Code (1912), Article 25, sections 88 to 104, inclusive, was followed. That is, a petition of fifteen taxpayers of the county was filed with the commissioners, asking to have the road closed. Hewspaper notice was given of such intention to- petition for the closing of the road. Later, thirteen of the original signers of the petition filed another petition, withdrawing their request, thus leaving two signers on the original petition.

There was a counter petition filed, among the signers of which, however, the appellee was not one. From the order passed, the appellee, a taxpayer of the county and the owner of property abutting upon the road ordered closed, entered an appeal from the order to the Circuit Court for Harford County. A copy of the proceedings before the commissioners was filed with the clerk of the Circuit Court, who thereupon docketed the proceeding upon the Appeal Docket in the name of the appellee, ISTannie D. Jay, as appellant, against the Board of County Commissioners of Harford County, as appellee. Summons was issued and served upon the appellee for its appearance at the then next term of the Circuit Court.

Thomas H, Robinson and Stevenson A. Williams, Esqs., entered their appearance for the defendant or appellee. Trial'was had before a jury. At the close of the testimony offered by the Mrs. Jay, the defendant offered three prayers, to withdraw the case from the jury for want of sufficient testimony. They were ³²⁷ refused by the Court.

At the close of all the testimony, the plaintiff and defendant offered prayers. Following this, the defendant filed a motion h> dismiss the appeal on the ground that it was not docketed against the party or petitioner in whose favor the decision helow was made, but against the Foard of County Commissioners, and that, therefore, the Court had no jurisdiction. The Court refused this motion, whereupon the verdict was in favor of the plaintiff. The defendant then filed motions for a new trial and in arrest of judgment.

These were overruled, and judgment accordingly entered. Whereupon, the case was brought here on appeal and upon petition for writ of error, allowed by the Court below. It may be well to note that the writ of error has m> more extensive range, or greater effect, than the appeal, both being different modes of obtaining review of judgments of courts of inferior jurisdiction in an appellate tribunal. Coston v. Coston, 25 Md. 500 ; Greenland v. County Commissioners, 68 Md. 59 .

Since section 85 of said Article 5 provides that the judgment of the Circuit Court shall be final on all such appeals, it is conceded by the appellant that this Court has no jurisdiction to review the action of the lower Court, except as to jurisdictional questions. That this Court cannot review the judgments of the Circuit Court rendered by it sitting as an appellate tribunal, under statutory authority, with no