County Commissioners v. Duckett

Bowie, C. J., delivered the opinion of this Court: The appellants were sued by the appellee on the 10th of August 1859, for negligently suffering a certain public road in said county to be out of repair and unmended, so as to be impassable with safety, whereby the appellee in traveling on said road with wagon and horses and using due care, had one of.his horses killed. The appellants demurred to the declaration, which demurrer being overruled, they pleaded several pleas, among others: “That they are not bound to keep the public roads of said couirty in repair, and they aver that the duty of keeping the same in repair is by the Constitution and Laws devolved upon the Boad ⁴⁷⁵ Supervisors.” They filed also, another plea, making the same defence more in detail. The. appellee demurred to these pleas, the Court sustained the demurrers, and the verdict and judgment being in favor of the appellee, the defendants appealed. The question presented is, whether under the Constitution and Laws of this State, the appellants are liable in this action.

The appellants contend, that the duty and responsibility of keeping the public roads in repair, is not devolved upon them by any such certain and precise provision of law, as. to make them responsible to individuals, for injuries resulting from the bad state or condition of the roads, and that therefore, the demurrer to the declaration should have been sustained and the demurrers to the pleas overruled. The appellees maintain the converse of this proposition. The Act of 1853, ch. 239, sec. 1, constitutes and declares the County Commissioners, “a corporation and body politic,” and enacts, “they shall have charge of and control over the property owned by the county, and over county roads and bridges.” They may sue and be sued, levy all need-0ful taxes on the assessable property within the county liable to taxation, and pay and discharge all claims on or against the county, which have been expressly or impliedly authorized by law; 1853, ch. 239. The Supervisors of roads being made elective by the people by Art. 7, sec 9, of the Constitution, in such manner as should be prescribed by the Legislature, the Act of 1853, ch. 300, entitled, “An Act to provide for the election of Supervisors” was passed, prescribing the mode of their election, qualification and duties.

By that Act, after the election of the Supervisors has been duly certified to by tbe commissioners of the county, the latter are required to issue to each elected Supervisor, a commission setting forth the time for which, and the election district of which he has been elected Road Supervisor, the amount of compensation he shall he entitled to receive, the amount of ⁴⁷⁶ money, if any appropriated for the repair of the roads and. bridges which may be under his supervision, &c., each Road Supervisor is required to report annually to the County Commissioners, the general condition of the roads. The County Commissioners have power to revoke the commission of any Road Supervisor, at any time, for neglect of duty or malfeasance in office, and to fill any vacancy that may occur for any cause; 1853, ch. 300. This synopsis of the laws, is sufficient to show the relative powers and duties of the commissioners of the counties and supervisors of roads, and the legal obligations which may result from their relation to each other. This is the first instance, as far as the records of this Court disclose, in which a suit has been instituted against the commissioners of the county as such, or their predecessors the Levy Court, for damages, resulting to an individual, from the neglect or omission to repair the public roads.

The novelty of the action, as well as the important consequences which may follow, if it is maintainable, give it unusual interest. That no such claim has been heretofore set up, it will be seen, has been much dwelt upon by a distinguished jurist as an argument against its validity. We arc not called upon .to establish a new principle, but to apply one already well established, to a new combination of circumstances. Principles arc of universal obligation, unless restrained by positive law.

Could considerations of public policy be allowed to influence the Courts in matters of strict law, much might be said on either side of this question, it is our duty, however, to adhere to the decisions in similar cases in this and other States. “With regard to the liability of a public municipal corporation for the acts of its officers, the distinction is, between an exercise of those legislative powers which it holds for public purposes, and as part of the government of the country, and those private franchises which belong to it, as a creature of the law; within the sphere of the former, it enjoys the exemption of the government, from responsi ⁴⁷⁷ bility for its own acts, and for the acts of those who are independent corporate officers, deriving their rights and duties from the sovereign power. White vs. City Council, 2 Will. So. Car. 571.

Martin vs. Mayor of Brooklyn, 6 Hill’s N. Y., 545, 550. The Mayor of the City of N. Y. vs. Furze, 3 Hill, 612 , 618. But in regard to the latter, it is responsible for the acts of those who are in law its agents, though they may not he appointed by itself. Bailey vs. The Mayor of the City of New York, 3 Hill, N. Y., 532.

Same case on Error, 2 Denio, 434 , 450. Thayer vs. Boston, 18 Pick., 511 . “But the application of these principles is confessedly nice.” 1 Am. Lead. Ca., 622, and cases there cited.

The liability of public municipal corporations for damages arising from neglect to prevent and remove nuisances, was placed by this Court in the case of The Mayor c6 City Council vs. Marriott, on the ground that the statutes of this State fixed the liability of the defendants, not that the defendants were liable at common law. 9 Md. Rep., 178 . The Act of 1796, ch. 68, providing, “that the corporation of the City of Baltimore shall have full power and authority, oto enact and pass all laws and ordinances necessary to preserve the health of the city, and to prevent and remove nuisances,” was relied on as conferring the authority on the defendants in that case, and it was declared, that “it is a well settled principle, that when a statute confers a power upon a corporation, to be exercised for tbe public good, the exercise of the power is not merely discretionary, but imperative, and the words, power and authority, in such case, may be construed duty and obligation.” Vide also 15 Md. Rep., 173 , The Mayor vs. Pendleton & Harlan. Id., 174. In the former case, as in ibis, it was contended that tbe defendants were invested with a legislative discretion, which they had the liberty of exercising as their sense of duty to their constituents dictated, without coercion or liability for its non-user.

This Court did not sustain that pretension, but held the power in question to ⁴⁷⁸ be a ministeral one, which the corporation was obliged to exercise for the public good, and in default of its proper exercise, as a common law consequence, it was liable to an action for damages. In other words, that where a duty was imposed by statute, and no remedy prescribed, the right of action accrued at common law, otherwise there would be a right without a remedy. The appellants in this case are, by the words of the Act of 1853, ch. 239, constituted a corporation, with “charge and control over the public roads.” They are authorized “to levy all needful (axes” and “to pay and discharge all claims on or against the county which have been expressly or impliedly authorized by law.” Hence they are authorized to levy the amount