Walter v. Board of County Commissioners

Marbury, J., delivered the opinion of the Court. This is,the second appeal in this case from the Circuit Court for Montgomery County. The first appeal was No. 23 in the October term, 1941, and the opinion will be found in 179 Md. 665 , 22 A. 2d 472, 473 . That appeal was dismissed because there had been no final judgment below.

After the mandate was returned from this court to the Circuit Court for Montgomery County that court passed a final order dismissing the appellant’s petition and from that order this appeal is properly here. The case is one in which the appellant filed a petition for a mandamus against the County Commissioners of Montgomery County, the commissioners demurred, the demurrer was sustained with leave to amend, no amendment was made, and finally the petition was dismissed. The allegations of the petition are set forth in the opinion in the first appeal. While we dismissed the appeal, we also discussed the right of a citizen and taxpayer to compel his county commissioners “instanter to make proper repairs” to certain highways, and we said, in part: “* * * the commissioners, who, through taxation, raise the money, are permitted to apportion it according to their judgment and discretion upon such projects as in their opinion are most deserving and urgent.

This consideration alone would in the present case, if it were properly before us, be a sufficient answer to the petition for the writ.” The appellant now challenges that conclusion and cites a number of cases from this court and from courts and authorities elsewhere, that there is a duty upon the county commissioners to keep the public roads in a safe condition, and that they may be compelled by mandamus ⁵⁰⁰ to carry out that duty. There might be appropriate cases in which mandamus would lie, but there have been numerous decisions of this court to the effect that the duties imposed upon county commissioners, with respect to roads, are discretionary. Mandamus will not lie to control such discretion in ordinary cases. There is nothing in the petition of the appellant herein, which shows that the conditions existing with respect to his roads, indicate anything other than the usual delays incident to road repair and construction.

While he and his neighbors may be seriously inconvenienced, all citizens must at times be subjected to inconveniences where a public board is distributing public money over a large network of roads, many of which need repair. It is not possible to keep all roads in good repair at all times. The duty imposed upon county commissioners to keep the roads under their jurisdiction safe for public travel cannot necessarily be construed as requiring them to repair immediately any particular road, when the