County Commissioners v. Fout

Boyd, C. J., delivered the opinion of the Court. This is a sequel to the case of Fout v. Frederick County, reported in 105 Md. 545 , in which a petition for a mandamus was filed to compel the County Commissioners to give the notice to the Chief Engineer of the Geological and Economic Commission, and to make the request .of the Commission provided for in sec. 2 of Ch. 225 of the Acts of 1904 — being sec. 34 of Art. 91 of the Code of Public General Laws. That application for a mandamus was resisted on two grounds: first, that the compulsory feature of that section was unconstitutional and second, that the provisions of that section were nullified by later and repugnant provisions of the Act. We sustained the constitutionality of the provisions in controversy, and also held that there was no conflict between sec. 2 and sec. 15, the latter being relied on to show the alleged repugnancy, reversing the order of the lower Court which had dismissed the petition and remanded the cause for further proceedings.

The appellees who were the appellants in the former case then filed another petition, in which they embodied the previous one and the proceedings thereunder, and alleged that a mandamus had been issued, to which the County Commissioners had made a return of their complete compliance with it. It is alleged in it that the County Commissioners refused to advertise for bids for the construction of the road as petitioned for, and a mandamus was prayed for to compel them to do so under the provisions of the Act. The County Commissioners answered, alleging amongst other things that,they had received from the Maryland Geological and Economic Commission, through its Chief Engineer, plans and specifications for the said proposed work, and an estimate of the cost thereof, exclusive of the cost of surveys and advertising, which estimate was alleged to be $10,445.44. Iiu paragraph 6 of the answer they alleged substantially as follows: "That the estimate for the proposed work of building ¹⁶⁸ and improving the road, exclusive of the cost of surveys and advertising, is greater than 25 per cent, of the road levy of Frederick County, the amount of which levy was $20,000; that it is provided in sec. 6, Ch. 225 of the Acts of 1904, being sec. 38 of Art. 91 of the Code, that nothing in said section shall require the respondents to advertise for work to be done, under the provisions of said Act, to an amount greater than 25 per cent, of the road levy of said county, that they are advised and aver that owing to that fact it is discretionary with them whether or not they shall proceed to advertise for bids for building or improving said road and that it would be unwise, improper and extravagant for them to involve the county in so lafge an expenditure as would be required from the county treasury.

The answer concludes by denying the right to issue the mandamus for reasons assigned, among which are that the allegations of the petition were not sufficient in law to entitle the petitioners to said writ. The petitioners filed a replication in which they denied, in the sixth paragraph, that the cost of the road, as estimated, in so far' as the sum the County Commissioners will have to pay is in excess of 25 per cent, of the road levy for Frederick County, and also denied the allegation that’ $20,000.00 is the amount of the road levy. It also alleges that those questions and that as to whether there was any discretion vested in the respondents as to advertising, cannot now be raised because such defenses were available in the previous case. It concludes by saying: “These petitioners further replying make general demurrer to the sixth paragraph of the answer, setting up the defense’ that the estimated cost of the road he’rein -exceeds twenty-five per cent, of the road levy for Frederick County, and that the advertising for bids is in the discretion of the respondents.” A rejoinder was filed by the respondents in which, among other matters, it is stated: “The defendants demur to the portion of the sixth paragraph of said replication which denies that the cost of the road therein mentioned, in so far as ¹⁶⁹ the sum the defendants will have to pay, is in excess of twenty-five per cent, of the road levy for Frederick County; and the defendants join issue upon the portion of said paragraph which denies that twenty thousand dollars is the road levy of'Frederick County.

The defendants join issue in the law upon'denial contained in said sixth paragraph that it is discretionary with the defendant to proceed or not to advertise for bids for the said proposed road improvement, in view of the amount of the cost of said work being greater than twenty-five per cent, of the road levy of said county.” It also denies the allegations in said sixth paragraph of the replication, to the effect that the same subject-matters of the petition in this case were tried in' the former case. The Court below ordered that the demurrer of the defendants to the petition for mandamus be overruled, and that the demurrer to the sixth paragraph of the answer he sustained, but granted leave to the defendants to amend the answer within fifteen days. The answer not having been amended, an order was passed reciting the rulings of the Court on the demurrers and directing the writ of mandamus to issue. From that order this appeal was taken.

When a petition for a mandamus is filed, Art. 60 of the Code directs the Court to lay a rule requiring the defendant to show cause why the writ shall not issue within such time as the Court may fix, then requires the defendant 1o answer, and by sec. 5 provides that; “The petitioner may plead to.or traverse-all and any of the material averments set forth in said answer and the defendant shall take issue or demur to said plea or traverse five days thereafter,” etc. Although the statute does not in terms authorize a demurrer to the answer, that practice has been sanctioned in Hooper v. New, 85 Md. 565 , and Co. Commrs. v. Banks, 80 Md. 321 . It might be questioned whether the practice adopted in these proceedings was technically correct, as some of the allegations in the respective pleadings were both traversed and demurred to; but as both sides committed that error, if it be error, we will, ¹⁷⁰ without passing on that, proceed, to determine the important points in the case. 1. We see no valid objection to the respondent (appellants) relying upon the defenses set up in paragraph six of the answer. It is true that sec. 4 of Art. 60 provides that: “Ro defendant shall be allowed on a second application for a mandamus to rely upon any matter by way of defense thereto which he might have relied on- in his answer to a previous application for a mandamus by the same petitioner,” but these defenses could not have been relied on in the previous case.

That was an application for a wholly different purpose, and the estimate of cost was not furnished by the Chief Engineer until after the mandamus was issued in the former case. It would have been impossible for the County Commissioners to then state what the estimate was, for the simple reason that it had never been made, and none could be made until after the notice and request provided for in the Act, the right to require which was the subject-matter of the controversy in that proceeding. 2. The most important question of law involved is the proper construction of see. 6 of Ch. 225 of the Acts of 1904. That is now sec. 38 of Art. 91 of the Code, and for convenience we will hereafter refer to the sections of that Article as the Act of 1904 is therein codified.

Sec. 33 provides for a notification to the commission by a written notice to the Chief Engineer of the intention of the County Commissioners to cause a particular road, or section .thereof, to' be built, under the provisions of the Act, and for a request of the commission for plans and specifications and an estimate of the cost. Sec. 34 is the one under which these petitioners are proceeding, and it provides for the owners of two-thirds of the lands binding upon any public road or section thereof not less than one mile long, calling upon the County Commissioners to make the request of the commission as set forth in ■sec. 33, upon payment by the petitioners of a sum equal to ten per centum of the cost, or giving an approved bond for the payment thereof at any time it may be demanded by the ¹⁷¹ County Commissioners. Sec. 35 requires the commission, after due examination and being of the opinion that the proposed construction or repair of the road mentioned in the notice is proper, to “make or cause to be made necessary surveys, and draw up, or cause to be drawn up, plans and specifications for the proposed work, and shall furnish an estimate in detail of the cost of performing such work according to such plans and specifications;” provided, of course, the amount appropriated by the State and apportioned to the county by section 44 is sufficient for the necessary outlay. Sec. 36 refers to the character of construction, and sec. 37 requires the County Commissioners, on the order of the commission, to pay out of the funds of the county the cost of surveying, mapping, calculating, printing, etc.; in the preparation of said plans and specifications