Fowler v. Board of County Commissioners

Hammond, J., delivered the opinion of the Court. The appellants, Mr. and Mrs. Kenneth Fowler and their eleven children, sued the individuals comprising the Board of County Commissioners of Prince George’s County, as individuals and as a Board, alleging failure to do their duty and exercise their powers to abate nuisances and prevent the creation of additional nuisances in the matter of “faulty septic tank installations in the subdivision of Seabrook Acres during the years from and about 1951 to 1959.” The declaration further alleged that the defendants, as individuals, did not physically bring about the abatement of the alleged nuisances. The damages suffered were said to be the illness of Mr. Fowler, with resulting pain, expense, change of personality and character and consequent disruption and destruction of a previously “harmonious family relationship.” This, it was alleged, caused great mental anguish to each child and their mother and deprived them of the “peaceful and happy enjoyment of their home and family,” to which they were entitled. Mrs. Fowler alleges that because no “bona fide attorney” would take the case, she has been compelled “in the pursuit of justice to undertake and carry through the legal work necessary in this case,” a task said to have been “time-consuming and expensive” and that as a result, her “efforts have caused the eleven Plaintiffs within age to suffer the lack of the devoted attention of their maternal parent * * *." The defendants below demurred to the declaration on the grounds (a) that the Board was acting in the performance of a governmental function and it and its members are immune from tort liability for negligence or nonfeasance as governmental agents, and (b) that no act which could support an action against them for negligence had been alleged.

Judge Bowie ⁵⁰⁷ sustained the demurrer, without leave to amend, and this appeal followed. We think there was no error in the sustaining of the demurrer. It is clear that when the Legislature delegates the police power with respect to the public health to a political subdivision, its governing body to the extent of the grant is invested with the sovereign power of the State; and when it acts, or fails to act, under that power, it does so in a governmental capacity. Cox v. County Commissioners of Anne Arundel County, 181 Md. 428, 434 ; 18 McQuillan on Municipal Corporations, 3rd Ed., Sec. 53:85.

It is equally clear that in Maryland, as in almost all common law jurisdictions, there can be no recovery