Godwin v. County Commissioners

Barnes, J., delivered the opinion of the Court. The sole question presented by this appeal is whether or not by virtue of Code (1964 Replacement Volume), Art. 89B, §§ 220, 221, and 222 added to the Code by the Acts of 1947, Ch. 560 providing, inter alia, that the State Roads Commission should undertake, carry out and perform the 'construction, reconstruction and maintenance of county roads in eleven Maryland counties, including St. Mary’s County, relieved the County Commissioners of St. Mary’s County, appellee and defendant below, from tort liability for an alleged defect in a county road in St. Mary’s County alleged to have been a proximate cause of injuries to Penelope Adora Godwin, the appellant and plaintiff below. The appellant, on November 8, 1968, filed an action in the Circuit Court for St. Mary’s County (Dorsey, J.) to recover damages for personal injuries she sustained in an automobile accident occurring on August 26, 1967. She was a passenger in the front seat of a 1965 Ford ³²⁹ Mustang automobile owned and operated by John H. Browning which left the paved portion of St. Andrew’s Church Road, a public road in St. Mary’s County, and struck a tree.

Both Mr. Browning and the County Commissioners of St. Mary’s County were joined as parties defendant. It was alleged in the declaration that the County Commissioners negligently caused her injuries by (1) failing “to keep and maintain St. Andrew’s Church Road in good construction and repair”, (2) “failing to have St. Andrew’s Church Road properly marked and designated and reasonably safe for the passage of persons using” it, (3) “permitting St. Andrew’s Church Road to become and remain in an unsafe and dangerous condition”, (4) “not properly and adequately laying out and constructing St. Andrew’s Church Road”, (5) “failing to keep St. Andrew’s Church Road properly and adequately marked and posted by warning signs * * *, slow speed warnings or other devices to designate the contour, curve, grade and permissible speed for the conditions prevailing”, and (6) “failing to make timely and seasonable recommendations to the State Roads Commission for the State of Maryland, for reconstruction of such road and the correction of such unsafe, defective and dangerous conditions”, and this negligent conduct was alleged to be a proximate cause of the injuries sustained by the plaintiff. The damages claimed were $500,-000.00. On November 29, 1968, the defendant County Commissioners of St. Mary’s County, pursuant to Maryland Rule 323 b filed a motion to dismiss the action on the ground of governmental immunity and for reasons for the motion, stated: “By the terms of Article 89B, Sections 220 and 221, Maryland Code Annotated, the responsibility to keep or maintain St. Andrews Church Road in good construction or repair and to have the said St. Andrews Church Road properly marked, posted and designated and reasonably ³³⁰ safe for vehicular traffic is imposed upon the Maryland State Roads Commission and not upon this defendant, and thus defendant therefore is not subject to suit in this action.” After argument and the filing of trial memoranda on behalf of the respective parties, Judge Dorsey filed a carefully considered written opinion and sustained the motion to dismiss.

An appeal was timely taken by the plaintiff to this Court. To afford the proper setting for the decision in the present case, it is necessary to review briefly the theory and application of the doctrine of sovereign immunity in Maryland. Sir William Blackstone gives the basis of the doctrine of sovereign immunity from suit in his Commentaries, as follows: “Royal Dignity. In every monarchy, it is necessary to distinguish the prince from his subjects, not only by outward decoration, but by ascribing to him certain qualities, as inherent in his royal capacity, distinct from any other individual in the nation.

He is presumed to possess certain attributes of a great and transcendent nature, by which the people are led to look upon him as a superior being. “I. His Sovereignty. He is said to have imperial dignity, and is styled basileus or imperator. His realm is termed an empire, and his crown imperial. He owes no subjection to any other earthly potentate.

No suit or action, even in civil matters can be brought against the king, because no court can have jurisdiction over him. Authority to try would be in vain, without authority to redress; the sentence of a court would be contemptible, where it could not enforce execution, and who shall command the ³³¹ king? His person is sacred, even though his measures be tyrannical and arbitrary, for no jurisdiction can try him in a criminal manner, much less condemn him to punishment.” {Browne’s Blackstone’s Commentaries, p. 77) “II. His Absolute Perfection.

The king can do nothing wrong. This means, that whatever is exceptionable in the conduct of public affairs, is not to be imputed to the king, nor is he answerable for it personally to the people. It also means, that the prerogative of the crown extends not to any injury; it is created for the good of the people, and therefore cannot be exerted to their prejudice.” {Id. at 78) Professor Borchard in his article in 34 Yale L. J. 1, 129 entitled “Government Liability in Tort,” stated: “The reason for this long continued and growing injustice in Anglo-American law rests, of course, upon a medieval English theory that ‘the King can do no wrong’, which without sufficient understanding was introduced with the common law into this country and has survived mainly by reason of its antiquity. ...” {Id. at 2) Professor Prosser in his “Law of Torts,” (third edition) Chapter 27, “Immunities” pages 996, 997, and 1001 states: “While these [immunities of governments] may or may not have had their roots in Roman law, the origin of the idea underlying them in the common law seems to have been the theory, allied with the divine right of kings, that ‘the King can do no wrong,’ together with the feeling that it was necessarily a contradiction of ³³² his sovereignty. to allow him to be sued as of right in his own courts.” (Id. p. 996) Hi * ❖ “Just how this feudal and monarchistic doctrine ever got itself translated into the law of the new and belligerently democratic republic in America is today a bit hard to understand. In 1821 Chief Justice Marshall gave no reasons when he declared that, without its consent, no suit could be commenced or prosecuted against the United States.

Following this, it soon became established that the government could not be sued without its consent.” (Id. p. 997) * * “The sovereign .immunity likewise carried over from the English crown to the several American states. There was an abortive attempt on the part of Chief Justice Marshall to change the rule; but it led only to the Eleventh Amendment to the federal Constitution, protecting any state from suit by a private citizen in the federal courts. Thereafter the doctrine became firmly established, that there is no state liability in tort unless consent is given. The immunity is said to rest upon public policy; the absurdity of a wrong committed by an entire people; the idea that whatever the state does must be lawful, which has replaced the king who can do no wrong; the very dubious theory that an agent of the state is always outside of the scope of his authority and employment when he commits any wrongful act; reluctance' to divert public funds to compensate for private injuries; and the inconvenience and embarrassment which would descend upon the government if it should be subject to such liability.” (Id. p.1001) ³³³ See also an interesting, comprehensive and helpful review of the Maryland law in regard to “Municipal Responsibilty in Tort in Maryland,” 3 Md. L. Rev. 159 (1938) by George L. Clarke.

As we have seen, there are legal scholars who are of the opinion that when the separation from the mother country and its monarchy occurred at the time of the War for American Independence, so that the new States had no personal sovereign, the reasons underlying the doctrine of sovereign immunity — based principally on monarchical concepts — were no longer applicable and the doctrine of sovereign immunity should never have been applied in the new States or to the United States under the Federal Constitution where, of course, no personal sovereign existed. It is well established, however, that the doctrine was applied in the new States and was held to be applicable to the United States as one of the dual “sovereigns” in the federal system. The application of the doctrine in this country was most likely based more upon reasons of public policy than upon the concept of the new States or the United States being successors, as it were, of the former king. Indeed, it is clear in Maryland that public policy was a consideration for the application of this doctrine.

In State v. B. & O. R.R. Co., 34 Md. 844 , 874 (1871), Bartol, C.J. stated for the Court: “This [sovereign] immunity belongs to the State by reason of her prerogative as a sovereign, and on grounds of public policy. Parties having claims or demands against her, must present them through another department of the Government—-the Legislature—and cannot assert them by suit in the courts.” (Emphasis supplied.) When one considers the financial and other problems which might arise if the doctrine of sovereign immunity were not applicable, it was probably wise that our predecessors did apply it in Maryland, with the possi ³³⁴ bility of legislative relief as suggested in State v. B. & O. R.R. Co., supra. As applied in Maryland, the doctrine of sovereign immunity is not only applicable to the State, itself, as a governmental agency, but is also applicable to its agencies and instrumentalities, including its municipal political sub-divisions, if engaged in a governmental function as an agent of the State, unless the General Assembly either directly or by necessary implication has waived the immunity. In State v. Rich, 126 Md. 643, 645 , 95 A. 956, 957 (1915), our predecessors held that the sovereign immunity of the State from liability for tort extended to the State Roads Commission, the Court pointing out, however, that the Commission could be made liable to be sued for negligence by legislative enactment.

The immunity also generally applies to a county of the State when exercising a governmental function as an agent of the State, but not when it is acting in its corporate capacity in maintaining public highways in the county under the management and control of the county. Cox v. Anne Arundel County, 181 Md. 428 , 31 A. 2d 179 (1943). In the Cox case, Judge (later Chief Judge) Marbury, for the Court, stated: “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 of 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.’ ³³⁵ 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 , 185 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.’ ” ( 181 Md. at 431 , 31 A. 2d at 181 .) It is of importance in the present case to observe that the liability of a county for its negligence arising out of its maintenance and control of the county roads is an exception to the general rule that counties share in the immunity of the sovereign.

In County Commissioners of Baltimore County v. Wilson, 97 Md. 207 , 54 A. 71 (1903) Judge Schmucker, for the Court, after reviewing the statutory provisions giving Baltimore County charge and control over the county roads with the power to appoint road supervisors and other officers and agents to construct roads and to manage and control the county roads, stated: “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 up ³³⁶ on 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 ; Diivall’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.” ( 97 Md. at 210 , 54 A. at 72 .) The basis for the exception in regard to the county’s liability for its negligence in connection with its construction or maintenance of the county roads proximately causing injuries to those using the roads, is the power and control of the county over the roads and their maintenance and the power to levy and expend the necessary taxes for county road repair. It is clear, therefore, that if such power and control over the repair and maintenance of the roads are removed from the county by statute, the normal application of the doctrine of sovereign immunity applies and the county is no longer liable for negligence in connection with the repair and maintenance of the county roads proximately causing injuries or property damage to a potential plaintiff.

Our predecessors so held in the Wilson case, supra, closely analogous to the present case. The 1965 Code of Public Local Laws of St. Mary’s County (the St. Mary’s County Code), Section 150, under the sub-title “Roads” provides: “The County Commissioners of St. Mary’s ³³⁷ County are authorized and empowered to control and regulate the public roads and bridges in said county, subject to the provisions of this sub-title.” This provision is substantially the same as a similar provision in the Acts of 1876, Ch. 238, the Acts of 1878, Ch. 499 and the Acts of 1908, Ch. 381, Section 100. In 1933, the General Assembly, in order to aid the counties of the State financially in their respective road construction and maintenance programs amended the provisions of Article 56 (titled “Licenses”) and Article 89B (titled “State Roads”) of the then Maryland Code by the Act of 1933, Ch. 425. This Act provided for the allocation of a fixed percentage of the State gasoline tax to be credited to the State Roads Commission and allocated to the various counties in the proportion which the public road mileage of the several counties bore to the entire public road mileage in all the counties of the State.

The provisions of the new sections 7A to 7F added to Article 89B became effective June 1, 1933, and remained in effect until September 30, 1985, after which time they became void. The relevant provisions of the 1938 legislation are set forth in County Commissioners of Howard County v. Leaf, 177 Md. 82, 87-88 , 8 A. 2d 756, 758 (1939), and need not be summarized here. In the Leaf case, it was contended that this 1933 legislation had so removed the power and control of the counties over the public roads and the necessity to levy taxes for road construction and maintenance as to remove liability for the consequences of negligent actions on the part of the County Commissioners in connection with the repair and maintenance of the county roads. In holding that this 1933 legislation did not have that effect, Judge Johnson, for the Court, stated : “These and other provisions make it clear that the sections relied upon by the appellants are of a temporary nature, and for their continuance further legislation is necessary.

In addi ³³⁸ tion, the expenditures by the State Roads Commission are of a special fund, and the application of the funds is ultimately for the decision of the Commission; and there is no requirement that such expenditure of such special fund shall be exclusively to one or more of the highway purposes of a county, nor cover the whole field of repair and maintenance, so as to relieve the County Commissioners of all duty and responsibility. The statute negatives such an argument when it simply relieves the County Commissioners, while they are temporarily receiving the tax, of the obligation to levy, under local laws, a minimum amount or rate for road maintenance purposes. Section 7F. So, the powers, and, consequently, the duty, of the County Commissioners to levy for all necessary road purposes subsists.

The agency of the State Roads Commission under the special statute is for the benefit of the county as the principal, and is not to the exclusion of the principal’s duty and power to keep the county highway safe for public travel. The suspension of the obligation to levy a minimum amount or rate is simply to relieve the Board of County Commissioners from the necessity of levying more than is required. The amount of the tax apportioned to a county may be inadequate for any one of the permitted purposes for which it may be applied, and could it be successfully contended that this inadequacy would, by force of the statute, exonerate the municipal corporation from the discharge of its primary and permanent duty in that regard?” ( 177 Md. at 89-90 , 8 A. 2d at 759 ) By the Act of 1935, Ch. 465, Sec. 4 the new sections 7A to 7F of Art. 89B were continued in effect until September 30, 1937, and by the Act of 1939, Ch. 766 old ³³⁹ Section 7F of Art. 89B in the 1935 Supplement to the Code then Sec. 19 of Art. 89B of the 1939 Code was continued in force until repealed. This section provided that the County Commissioners or other duly constituted local authorities were released from the requirements of existing law with respect to levying a minimum amount or a minimum rate for road maintenance purposes.

The Act of 1941, Ch. 888 modified the allocation and expenditure of the lateral road gasoline tax and eliminated Carroll and Garrett Counties from the list of counties where roads were maintained by the State Roads Commission. The Act of 1945, Ch. 841 authorized, between July 1, 1945, and June 30, 1947, the County Commissioners in each county with the approval of the State Roads Commission to apply or authorize the application of their allocated share of the lateral road gasoline tax fund for either maintenance, construction or reconstruction of roads and bridges in the several counties, in whatever proportion the County Commissioners and the State Roads Commission might mutually agree upon, notwithstanding any other provisions of law. It is in this statutory setting that the Act of 1347, Ch. 560 was passed making comprehensive changes in the prior law in regard to the financing, planning, constructing and maintaining of the public roads in the State. The important provisions of the Act of 1947, Ch. 560, with subsequent amendments, which are of importance in the present case are now Art. 89B, §§ 34, 36, 220, 221 and 222, of the Maryland Code (1969 Replacement Volume) .

It should be observed that in the legislation prior to the Act of 1947, Ch. 560 gradually and for limited periods (later extended) increased the power and control of the State Roads Commission over the county roads of the State on