Maryland independent. [volume] (Port Tobacco, Md.) 1874-current, 1911-05-12
Judge Bean's opinion In msudamus
Case.

We publish below the opinion OF
Judge Beall on the petition Of Francis
T. Mattinely for the writ Of mandanus
compelling the County Commissioners
to remove gate off the public road
leading through the Government prov
ing grounds At Indian Head.
This is an application for a writ Of
mandsmus to compel the County Com
missioners Of Charles County and the
road Supervisors Of Public roads to re-
move gate from the public road.
The petition AYERS that under the act
Of the Legislature LAWS Of 1910. CT ap5o)
The County Commissioners were given
the control Of the public roads Of Charles
County with power to name the Super
visors Of roads and to have control over
them in their work Of protecting re-
pairing & etc and in doing every act and
thing necessary to keep the said road
in repair, passable and convenient for
the use Of the petitioner and the general
public; that in pursuance of the power
and authority so vested on April 18th
they appointed road Supervisors. That
under Article Code Of Public Local
Laws title Charles County, sub title
roads aud Bridges as enacted BY Chapter
1913 Of Laws of 1878 all gates are ordered
removed from the County Roads Of said
County and it was the duty q TIE
Supervisors 10 remove them. That
upon the road in the 18th Election
District leading to and from Glymont
through portion Of land and premises
occupied by the q. 5. Government. but
nevertheless a public road to Matta-
woman Greek gate has been placed
and is being kept thereon in violation Of
law the to great damage annoyance and
inconveniei ce Of petitioner aud others
having the right to said road that
the Commission.r and Supervisors have
been notified Of said gate and requested
to remove the sa ne but have refused or
not done so, the supervisors assuming
not to at without direction from the
Commissioner and they refusing to
instruct or to have the said gates other
wise removed tie petition prsys for the
writ Of mandamus directed to the Com
missioners and the Supervisors Of public
Roads dire citing them to remove said
gate from the public read as required
by law.
Upon tho petition rule was laid on
the Commissioners and Supervisors to
show cause why the writ of Mandamus
should not issue. The defendants
answered admitting the formal aver
ments but denying that any duty was
imposed upon them to remove and
keep all gates of the public roads by Ar
ticle of the Code Of Public Local La VS.
as enacted by Chapter 123 of the laws
of 1878, insisting that by virtue Of said
act of 1878 OF Of Chapter 344 of the Acts
Of 1880 the road in question was ex-
pressly exempted form the operation Of
Article Q any say that and duty in
cumbent upon them to prohibit the
erection of any gate or to remove the
same was imposed by the act of 1910,
Chapter 2S1 which removed the exemp-
ton. They neither admit nor deny that
the road is a public road and say that
since the passage of Chapter 2S1 of the
acts Of 1910, to wit: About July 10, 1910,
the Board OF Commissioners recognizing
that the said road passed through a
portion Of the lands and premises own
ed by the U. s. Government known as
the Indian Head Proving Grounds duly
passed an order directing and requesting
the Commandant in charge of said lands
to remove any and all gates upon the
said road within 80 days and directed to
the said commandment to be notified,
he was notified and ignored the order
and failed to remove the gate and
on September o, the said Com
missioners ordered their engineer
to tear down and remove the gate which
he did OH SAID date. That the Board of
County Commissioners upon learning
that the said Commandant had caused
said gate to be regretted referred the
matter TO their counsel who has since
negotiated with the U. S. District Attor-
ney for Md, and is now in communicate
on with him to the end that the said gate
or any other gate may be removed,
wherefore they deny all Of the petition
alleging refusal on the part of defend
ants to remove the gate or that they are
unwilling to remove the same or to
cause the sans TO be removed as speedi-
ly and permanently as may be and to
the contrary say that Ihey are ready and
have at all ii mes been ready to act in
the premises as soon as their authority
can be legally determined.
The petitioner trayersed the answer
and upon issue being taken by defend
ants on said traverse, the case was
heard by the Court BY agreement Of the
parties.
The evidence in the case shows that
the road in question has been used as q
public road for a great many. years.
Mr. Mitchell who gave his age as 10
years stating that so long as he could
remember it had been used as public
highway and Mr.. Garner that it had
been public road ever since he could
remember. That the U. S. Government
I L. = 49,
both sides of the road at the point
where the gate is alleged to be main
tanned and that the property of the
Government is used as Naval Proving
Ground-that there was gate on the
said road which Garner says be re-
members being closed once or twice
other witnesses testify that the gate was
there and that sometimes ii was closed.
I T1l.. l.. A