County Commissioners v. Gibson

| Md. | Jun 18, 1872

Brent, J.,

delivered the opinion of the Court.

Tills suit was instituted in the Circuit Court for Calvert county, and afterwards removed, upon the affidavit of the plaintiff, to the Circuit Court for Prince George’s county. After its removal the plaintiff by leave of the Court filed au amended declaration. To this declaration the defendants demurred; and they contend that the demurrer ought to have been sustained by tlie Court below, first, because the venue is laid as of Calvert county, while the case was pending in Prince George’s county, and second, because under the laws of the State they are not liable in this action.

The statement of the venue in a declaration is intended to indicate the place or county in which the facts constituting the cause of action are alleged to have occurred, and in which the case is to be tried. The damages in this caso are claimed to have resulted from the bad condition of a public road in Calvert county, and the defendants, who are the county commissioners, could only have been sued in that comity. The venue was therefore properly stated as of Calvert county. Had it been laid in Prince George’s county, it would have been manifestly error. The removal of the case did not affect or change this rule of pleading. 1 Chit. Plead., 268.

The liability of the defendants in this action, it is conceded, is settled by the case of The County Commissioners of A. A. Co. vs. Duckett, 20 Md., 468, unless by the terms of the law of 1868, ch. 299, their duties and powers in regard to the public roads have been so materially changed and abridged as to render that decision inapplicable.

In tiiat case the county commissioners were held liable for damages resulting from the condition of a public road, upon the ground that the public roads of the county were under their charge; they being clothed in their corporate capacity with “ charge of and control over the property owned by the county, and over the county roads and bridges,” with power to levy the needful taxes to keep them in repair, and with such power and control over the road supervisors, who were then elective, as was sufficient to constitute them, the supervisors, in the eye of the law their agents. None of these powers are abridged or changed by the Act of 1868, unless it be the power of removing the supervisors, about which it is silent. But the supervisors are not therefore the less their agents, for the law'of 1868 has specially confided to the commissioners their selection anil appointment. In looking at the entire'law it will be seen, that the general control and care of the public roads, the levying of needful taxes to keep them in repair, the commutation of labor for teams and carts or wagons, the number of hands to be employed by the supervisors, the amount of their pay and that of the supervisors, are all left to the direction of the commissioners. These embrace the very powers and duties, which were held in the case in 20 Md., to be sufficient to charge the commissioners of Anne Arundel county in an action of damages, and we see nothing in this respect to distinguish the present case from that. But it is said, as the 8th section of the Act of 1868 directs the commissioners to require the road supervisors to give bond to the State, with security to be approved by them, “ which bond may be put in suit for the benefit of any person suffering by the neglect of the said supervisors, &c,” the right of action against the commissioners is thereby taken away, and a party injured must seek his remedy upon the bond of the supervisor. The argument on the part of the appellants is, that the word may as used in this section is to be construed to mean must. We do not so construe it. There is nothing in the object or purpose of the law, which indicates that the word was used in any other than its ordinary meaning. The remedy given is as effectual as a cumulative remedy, as it would be if by a forced construction of the language it was held to be an exclusive one. The word may, when used in statutes, is often construed to mean must, but it is in cases where it is manifestly the intention of the Legislature to impose a positive and absolute duty, and to give a discretionary power. Minor vs. Mechanics’ Bank of Alexandria, 1 Peters, 64. We can see no such manifest intention of the Legislature in the law before us, and do not think there is any reason for giving to the section referred to the construction asked for by the appellants. Its plain language confers a discretionary power, and to give to it any other meaning would be to violate the established rules of construction.

The prayer, which was offered by the plaintiff below and granted by the Court, correctly states the law of this case. All the facts which are necessary to fix the liability of the defendants, and the true amount of damages to be recovered, are fairly and plainly submitted to the finding of the jury. It directs them, if they find from the evidence that the public roads in Calvert county, mentioned in the declaration, were in bad condition, and that in consequence of such condition of said roads the wagon and carriage of the plaintiff'were broken whilst travelling on said public roads, then the plaintiff is entitled to recover the amount of damage (if any) which he sustained by such breaking of his carriage and wagon • provided they shall further find from the evidence that the plaintiff used due care and caution whilst so travelling over the said roads.

The first, second and third prayers of the defendants submit only the question of the due care and caution of the plaintiff to the jury. As this had already been submitted to them by the prayer of the plaintiff which was granted, these prayers, according to thd repeated decisions of this Court, although they may correctly state the law, were properly rejected. The fourth prayer of the defendants asks the Court to instruct the jury if they find “that the alleged bad road, on which the plaintiff’s wagon was broken, could have been avoided by using another road leading to said wharf, which was in good condition and but a short distance further, and had been used by the public for upwards of twenty -years, then the plaintiff did not use due care and diligence and is not entitled to recover.” This prayer was very properly refused. It is defective in not submitting to the jury to find, that there was any knowledge on the part of the plaintiff that the one road was dangerous, while the other was safe. Without some such knowledge he certainly could not, upon the facts stated in the prayer, be charged with a want of proper care and diligence. Apart from, this the prayer is radically wrong. It is no excuse for the defendants, if damage was sustained in the manner set out in the prayer of the plaintiff, to say that another road could have been travelled without accident.

(Decided 18th June, 1872.)

Finding the rulings of the Court below without error, the judgment will be affirmed.

Judgment affirmed.