County Commissioners v. Wilson

²⁰⁸ Schmucker, J., delivered the opinion of the Court. This appeal presents the question of the liability of the County Commissioners of Baltimore County in the present state of the law, for personal injuries caused to travellers by obstructions improperly permitted to remain upon the county roads. There is evidence in the record tending to show the follow-lowing facts: Mrs. Hattie E. Wilson, the appellee, when travelling at night with due care on one of the county roads of Baltimore. County was injured through being thrown from her carriage, which was overturned by running upon a rick of stone about three feet high placed upon the side of the road and extending into its bed.

The stone had been put there by Frank Hurline, a neighboring farmer, with the permission or assent of Christopher Hall, one of the County Road Commissioners, but without the knowledge of the appellant. The appellee sued the appellant in tort for damages for her injury, and recovered a judgment in her favor, from which the present appeal was taken. The record contains two exceptions, one of which is to a ruling of the lower Court upon admissibility of certain evidence, and the other is to its action on the prayers. The first exception was not insisted upon by the appellant and the real issue arises under the second one.

At the trial below the appellee, as plaintiff, offered two prayers, both of which were granted, and the defendant offered seven prayers, all of which were rejected. The proposition of the plaintiff’s first prayer is that it was the duty of the County Commissioners to- keep the road so free from obstructions that persons using reasonable care could travel on it in safety; and that if the rick of stone in question had, with the consent of the Road Commissioner Hall, been put and permitted tó remain for several weeks, in such position on the road as to make it unsafe for one using ordinary care to travel the road at night; and the plaintiff while so travelling upon the road was injured by her carriage coming in contact with the stones, she was entitled to recover. Her second prayer is upon the measure of damages, in the event of a verdict in her favor, and is in the usual form and free from objection. ²⁰⁹ The defendant’s first prayer asks the Court to take the case from the jury for want of legally sufficient evidence of negligence on the part of the defendant to entitle the plaintiff to recover. It is conceded that if all of the provisions of the Public General Law regulating the powers and duties of County Commissioners throughout the State remain in force in Baltimore County the commissioners of that county are liable for personal injuries to travellers on the public roads resulting from a failure to keep those roads in proper repair.

The question is whether the local road law, now in force in that county, enacted by the Act of 1900, chap. 685, is so inconsistent with the Public General Law in respect to the powers and duties of the County Commissioners that the local law has superseded the general one, and taken away from these commissioners that charge and control over county roads and the means and agencies with which to enforce the control which have always been held to constitute the foundation of their liability. In order to reach a solution of the question thus presented for our consideration it becomes necessary to compare the provisions of the general and local laws pertinent to the issue that we may ascertain whether there is a material conflict between them. Sections 1 and 2 of Article 25 of the Code of Public General Laws contain the following provisions : Sec. 1. “The County Commissioners of each county in this State are declared to be a corporation and shall have full power to appoint * * * road supervisors * * * and all other officers, agents and servants required for county purposes not otherwise provided for by law or by the Constitution, and they shall have charge of and control over the property owned by the county, and over county roads and bridges, and whenever in their opinion the public interests require or will be thereby advanced they may commit the whole matter of grading and constructing public roads, and the repairs thereof, and the construction and repairs of public bridges, to the charge of competent and scientifically educated ²¹⁰ civil engineers, who shall direct and manage all such public works under the immediate control of said County Commissioners, and who shall hold office for such time, with such salary, under such bond, and subject to such regulations as may be directed by the said County Commissioners from time to time.” * * * Sec. 2. “That they shall also in their respective. counties have control over all public roads, streets and alleys, except in incorporated towns, and make such rules and regulations for repairing, cleaning, mending and perfecting the same, and providing for the costs of the same, as they may deem necessary.” * * * It has been repeatedly held by this Court that these sections of the general law not only conferred the power, but also imposed the duty upon the County Commissioners to keep the public roads in a safe condition; and that, as the law provided them with proper agents for the discharge of these duties and the power to levy the requisite taxes for the repair of the roads, it made them liable for injuries resulting from the non-repair of such roads or the existence of dangerous obstructions upon them. Duckett's case, 20 Md. 468; Gibson's case, 36 Md. 229 ; Baker's case, 44 Md. 9 ; Eyler's case, 49 Md. 269 ; Duvall’s case, 54 Md. 354 .

It was admitted in these cases that there was no such liability at common law or by the express terms of the statute, but it was held to have arisen by necessary implication from the powers and duties of the commissioners under the several provisions of the general law. The local road law in force in Baltimore County when the appellee was injured, was enacted, as we have already said, by chap. 685' of the Acts of 1900. Its salient features are as follows : Sec. 188 directs the County Commissioners to appoint a Board of Road Commissioners for each district, from the voters resident of therein who have in the previous year paid taxes on property assessed at at least $500, and requires the appointees to give bond for the faithful discharge of their duties. ²¹¹ Sections 188 and 190 require the road commissioners to promptly organize as a board and, with the advice of the roads engineer, adopt the system for the repairs and improvement of the roads in their respective districts. Sec. 191 requires the road commissioners to keep books, showing in detail the cost of the labor and material used in the repair or improvement of each road in their respective districts.

These books are to be open to the inspection of the roads engineer, to whom the roads commissioners are required to make annual reports of the condition of the roads, and the nature and extent of the work done on them during the year. Sec. 192 requires the road commissioners of each district to make monthly itemized statements of the labor and material used by them to the road engineer, who must approve all bills for labor and materials if correct, and deliver them to the County Commissioners who, after the bills have been properly audited, are required to direct their payment to an amount not exceeding the special road tax collected from the district for that year. Sec. 194 authorizes the County Commissioners, upon charges made, and after such notice and a hearing, to remove any road commissioner for neglect or refusal to perform his official duty, and also to fill vacancies caused by resignation or removal of road commissioners. Sec. 195 provides, among other things, that the road commissioners “shall take charge of all roads and bridges in their respective districts, and shall see that no obstructions, hindrances' or injury is permitted upon anj road or bridge under their supervision, and if any road or bridge under their supervision shall form the boundary between districts, the County Commissioners shall assign to each district its portion of said road or bridge.” Sec. 196 provides that “the Governor shall appoint a Baltimore County Roads Engineer, who shall hold office until removed by the Governor, or his successor, for such good cause as he shall deem sufficient.” Sec. 197 prescribes the duties of the roads engineer.

These ²¹² are mainly advisory in their nature, and to be rendered to the road commissioners to aid them in the management and repair of the roads, but he is required to pass upon the propriety of the expenditures of the road commissioners, and to make an annual report to the County Commissioners, and to the .Maryland Geological Survey of the condition of the roads and the nature and cost of the improvements made on them during ■the year. Sec. 199 directs the County Commissioners to levy annually on the assessable property in the county not less than 15 nor more than 25 cents on the $100, for the use of the roads and bridges, of which only 5 per cent shall be applied to the general use of the county roads and bridge's; and the balance shall be set apart as a special road and bridge fund for the use only of that district from which it has been collected. • It is apparent from this synopsis of the Act of 1900, that it not only introduces into .the management of the public roads of Baltimore County, many details of administration not found in the general law, but it deprives the County Commissioners of almost the entire charge and control of the roads and imposes that duty upon a new set of officials, for whose appointment it makes provision. It creates a Board of Road Commissioners for each district, and requires them to “take charge of .all the roads and bridges in their respective districts” and Jkeep them free from hindrances and obstructions, to adopt a ■system for repairing and improving them, and to cause the repairs and improvements to be made and to purchase the materials requisite for that purpose. The Road Commissioners receive a fixed salary and .are not made subject to the control of the County Commissioners in connection with the repair or improvement of the roads or the purchase of materials.

On the contrary, the Act directs them to report the condition of the roads and improvements made thereon to the Roads Engineer, an independent official appointed by the Governor, and to make monthly statements of their expenditure for labor and material to the same official, to be by him approved, if correct, and handed to the County ²¹³ Commissioners, who are then required to order their payment after they have been properly audited. The Roads Engineer, and not the County Commissioners, is made the adviser of the Roads Commissioners in the exercise of the charge conferred upon them by the Act over all the county roads and bridges. The Road Commissioners are, it is true, appointed by the County Commissioners from a certain class of taxpayers, and they may be removed for neglect of duty by the County Commissioners after charges made and hearing thereon, but they do not act under the direction or supervision of the County Commissioners in keeping the roads in safe condition, as the charge and management of the roads is conferred by the local law upon the Road Commissioners themselves. Not only are the pei'sons directly chai-ged with the care of the roads thus made practically independent of the County Commissioners; but the power of the latter to levy taxes for the use of the roads is now so limited and restricted as in effect to deprive them of their-former discretion as to the application of the funds raised by those taxes.

As by this local laxv, which prevails over the genei-al law wherever the two conflict, the County Commissioners of BaL timore County have been shorn of the very powei's and duties which constituted the only ground of their liability for damages for injuries caused by the condition of the public roads; it follows, as a matter of course, that their liability for such damages no longer exists. If it be objected that the concliL sion which we have reached as to the effect of this local road law deprives the users of roads in Baltimore County of that redress for injuries resulting from defects therein which is afforded to those using roads in other pox-tions of the State, we are compelled to reply that the remedy for that situation must be sought at the hands of the Legislature and not of the Courts. The leaxmed Judge below should have rejected the plaintiff’s prayers and granted the defendant’s first prayer, and for his error in not doing so the judgment must be reversed. As it is apparent that there is no liability on the part of the appel ²¹⁴ lants for the injuries sustained by the appellee, no new trial of the case will be awarded, and for that reason we find it unnecessary to review the remaining prayers of the defendant below.

(Decided January 22nd, 1903.) Judgment reversed with costs, without a new trial. Jones, J,, dissented and delivered the following opinion in which Briscoe, J., concurred. I have not been able to concur in the conclusions reached by the Court in this case. The case was instituted in the Court below by the appellee against the County Commissioners ofBaltimore County, as a corporation, to recover damages for injuries sustained by her as the result of an accident occurring upon one of the public roads of that county which she was, at the time, using.

The narr. alleged that the accident was due to the negligence of the defendant corporation in permitting the road “to be and remain in an unsafe and dangerous condition for a long space of time.” At the trial there was evidence to show that the accident complained of was caused by obstructions, consisting of a pile of stones, which had been placed and allowed to remain for a considerable time upon the road at the place of the accident. There was also evidence going to show that these stones were placed and allowed to remain upon the road in question with the knowledge and assent of one of the Road Commissioners of Baltimore County to whom, under the local law of the county, was assigned the duty to take and exercise “special supervision” over the said road. That, is to say the evidence tended to show that the accident causing the injury, which was the subject of suit, was directly attributable to the negligence of an official or servant of the county upon whom was imposed the duty of providing for the safety of the travelling public in their use of its roads. The view that controlled the decision of this Court, and as to which the diversity of opinion here arose, was that which ²¹⁵ was urged in the contention upon the part of the defendant corporation, the appellant here, that by the Act of 1900, chap. 685, a Public Local Law of Baltimore County, the control of the County Commissioners over, and their powers and duties in respect to, the supervision and care of the public roads of that county are so far abridged that they are not liable to actions for injuries resulting from the unsafe condition of the roads.

The force of this contention is not perceived. The County Commissioners as respects any duty they are charged with as to supervision and control over county roads are but agents of the corporation they represent. The corporation is the county and the inhabitants thereof are the corporators, and not those who may for the time be exercising the function of County Commissioners. During their incumbency in office the County Commissioners wear the corporate name and can. sue and be sued.

They bring suits for the county and respond to suits against the county. The suits they bring enure in all beneficial results to the people of the county. When suits result in establishing a liability against the corporation this is enforced, not against the County Commissioners, but through them against all the people of the county. The capacity in which these officials sue or are sued is altogether representative ; and so it is with them in all the functions they exercise.

In all of these they are but agents. They are not the corporation. They represent the corporation. The County Commissioners are a body of officials subject to frequent change.

The corporation they represent, with powers and duties as a municipal organization, always remains. As to what constitutes the corporation against which the liability in this case, or in a case of this nature, is sought to be enforced, or as to the merely representative character o the County Commissioners, no authority would seem to be needed; but authority is not wanting in the decisions of this Court. The earliest case in this State that adjudged the liability of a county, as a municipal corporation, for injuries resulting to individuals of the community from a defective condition of the public roads due to the negligence of the officials ²¹⁶ or agents of the county is that of Co. Commrs. of A. A. Co. v. Duckett, 20 Md. 468 . In that case it was said: “The appellants (the County Commissioners) being sued in their official corporate character, are in fact but the representatives and agents of the county, all the resources of which are placed at their disposal to enable them to perform their legal obligations express or implied” (p. 481-2).

The Court there also refers to with approval, and adopts as applicable to a county as a municipal organization, the language in the case of Erie City v. Schwingle, 22 Penn. St. 388, in which it is said: “The people of the city are the corporators. It is they who are sued under the corporate name. It is they who must pay this judgment, if paid at all.

It will not do for them to allege that they are unwilling to perform a duty, and hold that up as an excuse for its non-performance.” In the case of Co. Commrs. of Talbot Co. v. Co. Commrs. of Queen Anne's Co., 50 Md. 245 , Judge Alvey, speaking for the Court said (p. 259) “A county is one. of the public territorial divisions of the State, created and organized for public political purposes, connected with the administration of the State government, and especially charged with the superintendence and administration of the local; affairs of the community; and being in its nature and object a municipal organisation, the Legislature may, unless restrained by the Constitution, or some one or more of those fundamental maxims of right and justice with respect to which all governments and society are supposed to be organized exerc'se control over the county agencies, and require such public duties and functions to be performed by them, as fall within.the general scope and objects of the municipal organisation.” In the same case it is also said “within the county limits the making and maintaining the public highways-and .bridges, at the cost of the county, are among the most ordinary functions with which the county organization, as a municipality, is charged.” * * It is evident that in the contemplation of the Constitution the. county is the municipality. Section 34 of Article 3 of the Constitution, provides that “no county of this State shall contract any debt, or obli ²¹⁷ gation in the construction of any railroad, canal, &c. * * * * or loan its credit to, or in aid of any association, corporation,” &c. If it be the county as a municipality that is the corporation defendant in this suit and not the County Commissioners, except as they represent the county, it seems to me that the inevitable logical sequence under the decisions of this Court in this class of cases, is that the appellant corporation is liable in the action brought by the appellee provided the facts alleged in the pleadings are established by the necessary proof. In the case of Mayor and C. C. of Balto. v. Marriott, 9 Md. 160 , a provision in the charter of the city of Baltimore, Act 1796, ch. 68, sec. 9, conferred upon the municipality full power and authority to enact laws necessary “to prevent and remove nuisances” and it was held that this imposed upon the municipality a duty and obligation to use means at its command to make this power effective a neglect to do which rendered the corporation liable to damages resulting to individuals from such neglect.

It was also held that the obligation and duty from which the liability of the corporation arose were devolved upon the corporation by statutory provisions which were there adverted to, not that the corporation was liable at common law. In the case of Co. Commrs. of A. A. Co. v. Duckett, supra, this Court after referring to the case in 9 Md. 160 , against the city of Baltimore and stating the ground upon which the liability of the municipality was there fixed; and then referring to the Act of Assembly which constituted the County Commissioners a corporation and gave the corporation “charge and control over the public roads” with power “to levy all needful taxes” and “to pay and discharge all claims on or against the county;” and stating that the supervisors of roads were placed under the control of the County Commissioners and were, subject to removal by them, said : “Here is a concurrence of all the conditions necessary to constitute legal liability ; a duty imposed by law, means and agents placed at their command to execute it and a capacity to sue and be sued, imposed by the act of their creation. It is difficult to ²¹⁸ distinguish this case from that in 9th Md. Rep. ‘Charge and control over the public roads and bridges,’ conveys a power as broad as that ‘to prevent and remove nuisances’ and necessarily imposes as high an obligation. The due exercise of the former involves the accomplishment of the latter.

If the lesser power subjects the possessor to damages for neglect and omissions, the greater must produce a like responsibility.” Thus the-Court put the liability of the county, as municipal corporation, for such neglect of duty as is charged in this case upon the same footing as that of other municipal corporations or municipal corporations proper. This last named case has been followed in a number of cases in this Court, several of which are referred to in the opinion of the Court in this case, and the doctrine there enunciated has become the settled law of this State. It may be said, before examining the legislation supposed to-affect this doctrine as applicable to the present case, that it is not to be presumed that the Legislature has designed to reverse and annul the law as it has been settled and applied by the Courts for nearly half a century; and before imputing such an effect to any Act of legislation there should be found either an explicit declaration of such an intention, or it should appear by a very clear implication. As has been seen such liability as is here sought to be enforced against a county as a municipal organization arises from a duty and obligation imposed by the statute law.

Now as affecting the liability of the appellant to be sued in the present case how stands the