Smith v. Goldsborough

30 A. 574, 80 Md. 49, 1894 Md. LEXIS 101

Opinion

Boyd, J.,

delivered the opinion of the Court.

This case was commenced by an application by Charles W. Goldsborough and George W. Hoffman, the appellees, to the County Commissioners of Frederick County, for the opening of a public road in that county, and the question presented for our consideration is whether the Circuit Court had jurisdiction to enter the judgment complained of on an appeal taken to that Court from the decision of the County Commissioners. It must be, and is conceded that this Court has no authority to review the action of the lower Court if the latter had jurisdiction in the premises and that question is presented by a motion to dismiss the writ of error and appeal.

In the Circuit Court the appellants filed a motion to quash the proceedings before the County Commissioners, and afterwards made a motion in arrest of the judgment. The petition for the writ of error assigns eighteen reasons why the appellants feel aggrieved at the decision below. Many of the points raised manifestly do not affect the question of jurisdiction and were not presented in this Court, but it was earnestly contended by the learned attorneys for the appellants that there were certain defects in the proceedings which are jurisdictional questions, and which we will therefore consider.

Sec. 83 of Art. 25 of the Code of Public General Laws provides that “ All applications for opening, altering or closing roads shall be by petition to the County Commissioners.” Sec. 84 provides that when any citizen of any county intends to petition the County Commissioners for opening, altering or closing any road, he shall give thirty days notice thereof in one or more of the newspapers published in the county. Sec. 85 authorizes counter petitions to be presented. The Act of 1892, chap. 426, substitutes five sections for sects. 86, 87, 88, 89 and 90 of Art. 25, so far as they apply to Frederick County.

On Oct. 17, 1892, a petition was filed with the County Commissioners, but was not signed at the end by the appellees, or any one for them, and it is contended by the appellants that this was necessary to give the County Commissioners jurisdiction. It was addressed to the County Commissioners of Frederick County, and begins:'

“Your petitioners, Charles W. Goldsborough and George W. Hoffman, respectfully represent unto your Honorable Board.” It alleges that they are citizens of Frederick County, and that on Sept. 6th, 1892, they gave notice in the “ Examiner,” a newspaper published in said county, of their intention to petition to the Commissioners on the 17th Oct., 1892, for the opening of a certain public road described in the notice, a copy of which they filed, &c. It concluded with, “Your petitioners therefore pray your Honorable Board for the opening of said road according to law.” An -affidavit was annexed in which Charles W. Goldsborough made oath that the matters and things set forth in the petition are true, etc.

The copy of the notice published in the “ Examiner ” has the names of Charles W. Goldsborough and George W. Hoffman attached to it.

A counter petition signed by a large number of citizens and taxpayers of Frederick County, including all the appellants, was filed protesting “ against the petition filed by Charles W. Goldsborough and George Hoffman for the opening of a public road mentioned in said petition,” etc. A few days afterwards Mr. and Mrs. Albaugh filed a more formal counter petition, and on Nov. 18, 1892, Michael F. Secrist, Elias V. Albaugh, Mary E. Albaugh and James W. Smith, by their attorneys, asked the Commissioners to-fix a day for the hearing of testimony for the counter petitions filed and also as to the road petitioned for.

The record shows that the appellants were represented by attorneys in these preceedings before the County Commissioners, although it fails to show that any objection was made to the petition on the ground now being considered until Sept, nth, 1893, when it was assigned as one of the reasons why the Circuit Court should quash the proceedings. It is perfectly apparent that the appellees adopted the petition as their own from the time it was presented to the Commissioners to the end of the case.

They could not avoid any liability which attached to the petitioners for public roads under the statute by reason of the fact that they had not signed the petition at the foot. It may be possible that they did actually sign it, and that the Clerk of the Commissioners omitted their signatures when making up the record. We do not want to be understood as basing our opinion on that possibility, however, and we only refer to it for the purpose of showing what injustice might be done by parties to such controversies waiting until the case is appealed to the Circuit Court and there, for the first time, raising the question. We must not overlook the fact that County Commissioners are ordinarily not lawyers or accustomed to or acquainted with technical pleadings. They are selected from the people at large and much of their business is transacted without the assistance of those learned in the law.

Whether or not the petition was in the handwriting of the petitioners does not appear from the record, but whether it was written by them or by some one for them, it was adopted by them, and although the proper place for their signatures is at the end of the petition, it would be valid if signed in some other part.

If some one else had signed the names of the petitioners at the end of this petition at their request, or if such signatures had been afterwards ratified by them by filing the petition with the Commissioners, one of them swearing to it, and both endeavoring to sustain it before the Commissioners and in the Circuit Court, could it be successfully contended that it was not their petition? This Court in Higdon v. Thomas, 1 H. & G. 139, and in Drury v. Young, 58 Md. 546, decided that it is immaterial in what part of an instrument the name appears in order to comply with the requirements of the Statute of Frauds. The sections of that statute under consideration in these cases require the memorandum, etc., to be signed by the party or his agent, whilst the statute under which this proceeding was commenced does not so require in terms, although it was doubtless intended that the petition should be signed or adopted in some way so as to avoid any question as to who the petitioners were. Under the circumstances of this case there can be no doubt about the fact that the appellees were the petitioners, and that they would be responsible for costs and such other liabilities as might attach to parties petitioning for public roads. The omission to sign their names at the end of the petition was a mere irregularity, and did not render the petition or the subsequent proceedings void, or prevent the Commissioners from taking jurisdiction of the case. To hold proceedings before County Commissioners to such technical accuracy might render nugatory and void many transactions in reference to public roads and other matters.

No technical pleading is required or contemplated by the the law in matters before them. Whilst it is true that their jurisdiction is limited, Courts should not be eager or inclined to interfere with their control over matters intended for them, because the proceedings have not been conducted in the regular and orderly way that is to be expected in Courts of record, where the business is transacted by those especially trained for the purpose..

This is particularly so when the parties raising the technical objections have not been in any way injured thereby and recognized the validity of the instrument, so far as the alleged defects are concerned, by their conduct throughout whilst the case was still before the Commissioners.

Following the order of questions presented by appellant’s brief, the next point is that the Commissioners had no jurisdiction to proceed to take private property or appropriate public funds for a public road until they had determined “ upon such location or route as in their judgment will best promote the public convenience,” as required by the Act of 1892, Chap. 426, Sec. 95A; and that the record of the action of the Board does not show this to have been done.

On March 22nd, 1893, the Commissioners, upon consideration of the petition of the appellees and of the counter-petitions, passed an order that the board visit, as a body, the locality in which it was proposed to open the public road petitioned for, to ascertain the required convenience of the community, &c., which order was authorized by and followed very closely the exact language of Section 95 A. On the 30th of March, 1893, the Commissioners appointed a surveyor to survey and make a plat of the proposed new road upon the location determined upon by them. The survey and plat were made and returned to the Commissioners by the surveyor on April 4th, 1893. On April 18th, 1893, the board-filed an order in which they recited the transactions in considerable detail, and after referring to their visit to the locality, stated that they “did ascertain and determine that the public convenience of said community does require the opening of a new public road in said locality, but did also ascertain and determine that the public convenience of said community will be better served by the adoption of a location somewhat different from that mentioned in the said petition of said Goldsborough and Hoffman.”

Almost the exact language of the statute is used in the above quotation — the statute adding, however, that if they determine the facts stated above “ they shall cause a survey and plat of the proposed new road or alteration to be made by a competent surveyor upon such location or route as in their judgment will best promote the public convenience.”. The latter is the language relied on by the, appellants. In the above mentioned paper the board, after further reciting the appointment of the surveyor, his return and plat, their approval of it, &c., then concludes as follows : “ And upon consideration of all the premises the Board * * * * do now adjudge and determine that the public co7ivenience of the community through which said new public road is prayed and proposed to be opened does require that the said new public road, as laid down tipon said survey and plat of said Rufus A. Rager, surveyor appointed to make the same, shall be opened, and it is thereupon, on this 18th day of April, 1893, accordingly so ordered and determined.”

It is difficult to see how the determination of the Commissioners that the road as laid down on the plat of the surveyor would “ best promote the public convenience,” could be more clearly or more forcibly expressed than to say that the public convenience reqidred this particular road to be opened. The use of the word “better” instead of “ best,” in the connection in which it was used, simply followed the exact language of the statute, and when it was said that the public convenience required the-adoption of the road laid out by the surveyor that embraced the fact that it would best promote the public convenience. But if there were any room for contention on that question the order of the Commissioners appointing Examiners recites that the “Commissioners have determined upon the location of said road, which in their judgment will best promote the convenience of the community.” ' One order is as much a part of the record as the other. There is nothing in the statute which would prevent the Commissioners from stating their determination as to the public convenience, etc., in the order appointing the Examiners.

The objection urged that the Examiners, in proceeding to execute the commission, ignored the rights of one F. T. Musser, who is alleged to be a tenant in possession of the farm of James W. Smith, cannot be considered by this Court. There is no evidence in the record that he was such tenant or, if he was, that his holding was such as to entitle him to be considered. His tenancy, for example, might have expired before the road could be commenced.

If there was any error in ratifying on June 20th, 1893, the report of the Examiners, which was filed June 3d, 1893, it is clearly not a jurisdictional question. If it be admitted that the confirmation was premature, which we do not de•cide was the case, it was a mere irregularity to be corrected on appeal to the Circuit Court. Gaither v. Watkins, 66 Md. 582.

So far as the form of the verdict and the judgment of the Court thereon are concerned, this Court is powerless to give the appellants any relief, if we assume there was error, as the law has not given it authority to review the decision of the Court below. The latter had jurisdiction to enter up the judgment and whether properly done or not its action cannot be reviewed by us.

. We have thus referred to the principal points raised by the appellants, and have also carefully examined the other reasons assigned as errors\ and we are of the opinion that the County Commissioners and the Circuit Court had jurisdiction in the case, and the a.ction of the latter is final. Sections 81 and 82 of Art. 5 (which are still in force in Frederick County, as they were not repealed by the Act of 1892) authorize an appeal from the County Commissioners to the .Circuit Court, where either party has a right to a trial by jury.

That Court is, by Section 82, “ authorized to ratify, reject, alter or amend the proceedings before the County Commissioners and in said Court, so as to bring the merits of the case fairly to trial, and the said Court is hereby further authorized to pass such judgment in the case as the County Commissioners ought to have passed, including costs ; and such judgment shall be jinal and may be enforced by due process of law.”

(Decided November 14th, 1894.)

The powers thus given are very broad. The County Commissioners have original jurisdiction conferred on them, the Circuit Court is the Appellate Court and no right of appeal is given to this Court.

The record in this case discloses the fact that the proceedings before the Commissioners were conducted with great care and unusual particularity. The omission of the signatures of the petitioners at the usual place is the only evidence of any want of care, which was doubtless a mere oversight, and we have determined that there is nothing in that omission to render the proceedings void. The orders passed, the notices given and other acts done meet the requirements of the statute — certainly so far as they affect any jurisdictional questions. Such being the case and the Circuit Court -having jurisdiction as the Appellate Court and its judgment being made final by the language of the statute, it follows that this Court is without authority to review the action of the Court below as has been determined by numerous cases in this State.

We will only refer, in addition to 66 Md. 582, supra, to Greenland v. County Commissioners, 68 Md. 62; Rayner v. State, 52 Md. 374; Judefind v. State, 78 Md.,and Moores v. Bel Air Water Company, decided at the last term of this Court.

It follows from what we have said that the writ of error must be quashed and the appeal dismissed.

Writ of error quashed and the appeal dismissed.