Cox v. Board of County Commissioners

Marbury, J., delivered the opinion of the Court. This is a suit against the County Commissioners of Anne Arundel County for damages resulting to the infant plaintiff from being attacked and bitten by a ferocious pack of dogs running at large in the third election district of the county. The dogs were owned by a resident of the county. The owner had a kennel license under the local law, by the terms of which the dogs were permitted to be at large only under close supervision at certain times.

The attack is alleged to have occurred while the plaintiff was lawfully upon a highway in the neighborhood of the residence of the owner. A general demurrer was sustained below. The plaintiff declined to amend, and judgment was extended in favor of the defendant for costs. From this judgment, the appeal comes here.

The first count of the declaration is based upon the breach of special duties alleged to have been placed upon the appellee by the local dog law enacted by Chapter 255 of the Acts of 1937 and amended in some particulars by Chapter 283 of the Acts of 1941. The second count is based upon the negligence of the appellee in its failure to abate the nuisance caused by this pack of dogs running at large. It is claimed in this count that such duty is placed upon the appellee under the provisions of the general and local laws. If there is such duty, it must be found in the statutes.

The liability of the appellee ⁴³¹ under both counts, therefore, is narrowed to what was intended by the Anne Arundel County dog law. Governments are immune from suit by individual citizens, unless the right is expressly given. The reason for this immunity is stated by Mr. Justice Holmes in the case of Kawananakoa v. Polyblank, 205 U. S. 349 , 51 L. Ed. 834 : “Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. Leviathan, Chap. 26, 2.

A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” When the State gives a city or county part of its police power to exercise, the city or county to that extent is the State. It is difficult to find a good reason for holding that a municipality (using the word in its broad sense) is not exercising the police power for the safety of the public when it is maintaining public highways. However, the rule in this State and in other jurisdictions is that, in such case, the municipality is acting in its corporate capacity, and is liable to suit for its negligence. In discussing this question this court in the case of Mayor and City Council of Baltimore v. State, 173 Md. 267, 273 , 195 A. 571, 574 , said: “But the two principles, one that a municipal corporation is not liable in a civil action for any default or neglect in the performance of a purely governmental function, and the exception, that it is liable for failure to keep the public highways under its management and control in a reasonably safe condition, are too firmly embedded in our law to be disturbed now.” It is equally well settled that the highway for which the municipality becomes liable on account of its failure to keep it in repair must be one that has been created or accepted by the public authorities, and that the liability does not extend to a highway not accepted, but which ⁴³² has merely been dedicated to public use by a private owner, or one which such owner has permitted the public to use.

It must actually have been accepted by the public authorities either expressedly or impliedly. This court in the case of Kennedy v. Cumberland, 65 Md. 514 , 9 A. 234 , 57 Am. Rep. 346 , adopted the statement of the law on that subject in 2 Dillon, Municipal Corporations, Sec. 642, which is as follows: “As against the proprietor, a dedication of land for streets and highway may be complete without any act or acceptance on the part of the public; but, in order to charge the muninipality or local district with the duty to repair, or to make it liable for injuries for suffering the street or highway to be or remain defectivé, there must be an acceptance of the dedication, and this acceptance must be by the proper or authorized local public authorities. It may be express, and appear of record, or it may be implied from repairs made and ordered, or knowingly paid for, by the authority which has the legal power to adopt the street or highway, or from long user by the public.” This question becomes important in view of the allegation in both counts of the declaration 'that the attack on the appellant occurred on a highway and the absence of the accompanying adjective “public.” It may be presumed that the appellant has- stated his case as strongly as he can.

In view of the absence of the word “public,” it must be assumed that the highway where the attack occurred was not one which had been created or accepted either expressedly or impliedly by the appellee. Statements to that effect were made at the argument of the case by counsel of' the appellee. While these were not admitted by counsel for the appellant, the latter did state that he was unable to say that he could prove the attack occurred on a public highway. In the absence of a definite admission we must look to the record.

We do not find in it any statement that this attack took place on a public highway of Anne Arundel County. We, therefore, consider it as if it did not so take place, but ⁴³³ occurred on a road which it is not alleged the appellee has any duty to keep free of obstruction. A number of cases cited to us by the appellant furnish no precedent for this case, because they refer to negligence with respect to a public highway. Such cases are Mayor, Etc., of Baltimore v. Marriott, 9 Md. 160 , 66 Am.

Dec. 326 ; Anne Arundel County Com’rs v. Ducett, 20 Md. 468 , Am. Dec. 557; Cochrane v. Frostburg, 81 Md. 54 , 31 A. 703 ; Hagerstown v. Crowl, 128 Md. 556 , 97 A. 544 ; Taylor v. Cumberland, 64 Md. 68 , 20 A. 1027 ; Hagerstown v. Klotz, 93 Md. 437 , 49 A. 836 ; Havre de Grace v. Fletcher, 112 Md. 562 , 77 A. 114 ; and Mayor and City Council of Baltimore v. Eagers, 167 Md. 128 , 173 A. 56 . The case then turns upon the question whether the statute imposed upon the appellee duties which are governmental by nature or whether its duties are those known as corporate or proprietary. If the appellee is exercising a governmental function, it is not liable.

If it is acting under corporate or proprietary powers, it may under some conditions be held responsible. The distinction is, at times, illusory in practice, and not altogether logical in all cases. McQuillen on Municipal Corporations, 2nd Ed., Vol. 6, pars. 2795-2798. There is a modern tendency to broaden the liability.

In this State, however, the distinction has been adhered to too long for it now to be judicially altered. That can be done only by statute by which it may be abolished altogether, or by which some method of compensation may be provided. The rule has already been relaxed as to employees. Code, 1939, Art. 101, Sec. 46.

County commissioners are outgrowths of the old levy courts originally established by the Act of 1794, Chap. 53. These courts were composed of the justices of the peace of the several counties. Their duties were to meet and to adjust the ordinary and necessary expenses of their counties, and to impose an assessment or rate on property to defray county charges. During the course ⁴³⁴ of the succeeding fifty years the name “County Commissioners” came into existence.

It was first recognized in the underlying law of the State in the Constitution of 1851, Art. 7, Sec. 8. In that Constitution it was provided that the commissioners should exercise only such powers and duties as the Legislature should from time to time prescribe. When the present Constitution of 1867 was adopted, Article YII, Section I, provided that the power and duties of county commissioners should be such “as now or may be hereafter prescribed by law.” Until the Constitution of 1867, county commissioners were simply administrative officers in charge of county finances, and taking care of the public roads. Board of Commissioners of Public Schools v. Allegany County Commissioners, 20 Md. 449 .

After the Constitution of 1867 these powers could be broadened by legislative authority. Talbot County Com’rs v. Queen Anne’s County Com’rs, 50 Md. 245 ; Prince George’s County Com’rs v. Mitchell, 97 Md. 330 , 55 A. 673 . In the case of Gordon v. Montgomery County, 164 Md. 210 , 164 A. 676 , an Act was held valid authorizing county commissioners to pass rules, regulations and ordinances, licensing and regulating