County Commissioners v. Gibson

Brent, J., delivered the opinion of the Court. Tills suit was instituted in the Circuit Court for Calvert county, and afterwards removed, upon the affidavit of the plaintiff, to the Circuit Court for Prince George’s county. After its removal the plaintiff by leave of the Court filed au amended declaration. To this declaration the defendants demurred; and they contend that the demurrer ought to have been sustained by tlie Court below, first, because the venue is laid as of Calvert county, while the case was pending in Prince George’s county, and second, because under the laws of the State they are not liable in this action.

The statement of the venue in a declaration is intended to indicate the place or county in which the facts constituting the cause of action are alleged to have occurred, and in which the case is to be tried. The damages in this caso are claimed to have resulted from the bad condition of a public road in Calvert county, and the defendants, who are the county commissioners, could only have been sued in that comity. The venue was therefore properly stated as of Calvert county. Had it been laid in Prince George’s county, it would have been manifestly error.

The removal of the case did not affect or change this rule of pleading. 1 Chit. Plead., 268. The liability of the defendants in this action, it is conceded, is settled by the case of The County Commissioners of A. A. Co. vs. Duckett, 20 Md., 468 , unless by the terms of the law of 1868, ch. 299, their duties and powers in regard to the public roads have been so materially changed and abridged as to render that decision inapplicable. In tiiat case the county commissioners were held liable for damages resulting from the condition of a public road, upon the ground that the public roads of the county were under their charge; they being clothed in their corporate capacity with “ charge of and control over the property owned by the ²³⁶ county, and over the county roads and bridges,” with power to levy the needful taxes to keep them in repair, and with such power and control over the road supervisors, who were then elective, as was sufficient to constitute them, the supervisors, in the eye of the law their agents.

None of these powers are abridged or changed by the Act of 1868, unless it be the power of removing the supervisors, about which it is silent. But the supervisors are not therefore the less their agents, for the law'of 1868 has specially confided to the commissioners their selection anil appointment. In looking at the entire'law it will be seen, that the general control and care of the public roads, the levying of needful taxes to keep them in repair, the commutation of labor for teams and carts or wagons, the number of hands to be employed by the supervisors, the amount of their pay and that of the supervisors, are all left to the direction of the commissioners. These embrace the very powers and duties, which were held in the case in 20 Md., to be sufficient to charge the commissioners of Anne Arundel county in an action of damages, and we see nothing in this respect to distinguish the present case from that.

But it is said, as the 8th section of the Act of 1868 directs the commissioners to require the road supervisors to give bond to the State, with security to be approved by them, “ which bond may be put in suit for the benefit of any person suffering by the neglect of the said supervisors, &c,” the right of action against the commissioners is thereby taken away, and a