Chaney v. County Commissioners

Stockbridge, J., delivered the opinion of the Court. The appellants, who are citizens and residents of Anne Arundel county, filed the hill in this case to enjoin the Board of County Commissioners of thar. county “from building a wharf on Rockhold Creek or at Cedar Point, or at any other point adjacent thereto, or elsewhere in the waters of Anne Arundel county without the authority of an Act of Assembly”. The bill was demurred to, demurrer sustained, and from the order sustaining it this appeal was taken. It is to be observed in limine, that the order sustaining the demurrer neither granted leave to amend nor dismissed the bill, and the order was therefore not strictly such final order as to permit an appeal to be taken from it.

The opinion of the circuit judge appearing in the record makes it plain, however, that in his view the allegations of the hill did not present a case, under which any such relief as that prayed for could be granted, and that the bill would ultimately have to be dismissed. No good end would, therefore, be accomplished by dismissing this appeal on what is merely a technical defect. The allegations of the hill are, that the County Commissioners have advertised for proposals for the construction of a wharf in Rockhold Creek, that they further intend to advertise and give out a contract for a wharf to be placed at the mouth of Cedar Point in West River, and also a pier or wharf attached to South River Bridge. It is further alleged that Rockhold Creek is but a narrow tributary of Herring Bay, and that the produce raised and shipped from there is of infinitesimal value, that the said creek is so narrow and the water so shallow that a vessel drawing over four feet will be unable to get to or from the wharf there, except on very high tide, that no public demand exists for the establishment of such a wharf, that a commission appointed in 1911 reported unfavorably upon the establishment of a wharf on Rockhold Creek, which report was adopted by the Board of County Commissioners, and that subsequently another commission was appointed at the ³⁸⁷ instigation of interested parties, which made a favorable report; that the establishment and building of such wharf or wharves would operate as a. distinct injury to the taxpayers of the county, and that the County Commissioners have no authority in law to build wharves without an Act of the Legislature.

The Code of Public General Laws, Article 25, contains the general grant of powers to County Commissioners, as bodies corporate, and contains an enumeration of the powers conferred and the method of their exercise with regard to many matters. The effect of this grant is to vest in the County Commissioners but a limited authority; Tasker v. Garrett County, 82 Md. 153 ; and hence they can only perform acts expressly or impliedly permitted by their charter or conferred on them by the General Assembly. Peter v. Prettyman, 62 Md. 571 . But in the performance of their duties and in the execution of the powers expressly or impliedly given them, they are ordinarily vested with the exercise of a discretion.

Blundon v. Crosier, 93 Md. 358 . The question which presents itself in this case is, Have • or not the County Commissioners of a county, the power to erect wharves as one of the powers expressly or impliedly conferred on them? Sections 105 and 106 of the Code of Public General Laws (1912), Article 25, sub-title “Public Landings,” are as follows: “105. In all cases where the public convenience requires it the County Commissioners shall have power to establish a public landing upon any navigable river, canal, bay, sound or other navigable wraters. “106.

Upon all applications to establish a public landing, the same proceedings shall be had as on application to open a public road.” On behalf of the appellant, it is insisted that the power contained in these two sections neither expressly nor impliedly vests in the County Commissioners the power to establish or build wharves. Section 91 of