Preble v. City of Portland , 45 Me. 241 ( 1858 )

The opinion of the Court was drawn up by

Tenney, C. J.

The records of the city council are ■ represented by the petitioners, as showing that the petition of Eliphalet Greeley ■ and others, praying that Temple' street might be widened, was referred to “ the committee on laying out new streets.” • On July 8, 1856, after this reference, the committee made a report recommending that the street be altered, according to an order which they submitted with the report. After several unsuccessful attempts of the two boards of the city council to agree upon the particular alterations'to be made- in that street, the réport of conferees, who. had-been appointed by a concurrent vote of the boards, was accepted by bótlr on July 9,' 1856;' Thereupon, on the same day, the city council authorized and directed the committee to alter Temple street, by widening the same, and in their order for this purpose prescribed the lines and bounds specifically, as the limits of the street after the alteration. Oh July 10,1856, the committee duly posted notices of the intention of the city council to widen Temple street, by the lines and bounds prescribed in the order last passed, stating therein the termini of the street, and also the particular alterations contemplated, on the 18th day of said July, at the corner of Temple and Middle streets, and that all persons interested would take notice and govern' themselves accordingly.

On July 24, 1856, the committee made their report to the city council, therein stating that, having examined the route proposed, they were of the opinion, and did adjudge, that there-was 'occasion and necessity for an alteration' of said public way, for the use and' convenience of the city, and they álteted said street in the manner therein described, conforming to the order of the city council, and' that they filed the alteration with the city clerk with the boundaries and ad-measurements mentioned in the report. - By the clerk's ‘certificate, the report of the committee was filed in his office on July 24, 1856.

Several errors are alleged in the petition to be exhibited by the records. We are to see whether legal error has been shown to be in the record.

The first errors assigned and relied upon are, that the city council, without giving notice, directed the. committee “ on laying out new. streets,” to alter Temple street in the particular manner followed afterwards by the committee, thereby subjecting their land, to a servitude, without giving the owner thereof an opportunity to be heard upon that question before the judgment of the city council was fully.formed.

By the charter of the city of Portland, section 4, the executive power of said city generally, and the - administration of police, with all .the powers of the selectmen of the town of Portland, except as provided in the thirteenth section of the Act, shall be vested in the mayor and aldermen, &c. All other powers now vested in the inhabitants of said town, and all powers granted by the Act, shall be vested in the mayor and aldermen and common council of said city, to be exercised by concurrent vote, each board to have a negative upon the other. These boards constitute and are called the city council. § 2.

By section 6, the city council shall have exclusive authority and power to lay out any new street or public way, or widen or otherwise alter any street or public way in said city of Portland; and to estimate the damages any individual may sustain thereby; and shall in all other respects be governed by, and subject to the same rules and • restrictions as are provided in the laws of this State regulating the laying out and repairing streets and public highways.

Section 3 of the city ordinances provides, that the committee “on laying out new. streets,” when thereto directed by a vote of the city council, shall lay out, widen or otherwise alter any street or public way, and estimate the damage any individual may sustain thereby, and they shall report to the city council the laying out or alteration of such street or way, with the boundaries and admeasurements thereof, together with the names of the persons to whom damages have been assessed therefor.

No question is made, that the alteration attémpted to be made in Temple street would have fallen under Art. II, of R. S. of 1841, if Portland had remained a town; which article treats “ of location, alteration and discontinuance of town and private ways.” By these R. S. c. 25, § 27, the selectmen of the several towns, either personally or by such person or persons as they may appoint, may lay out, alter or widen town ways, for the use of their respective towns, &c.

Section 28 provides, that no such town way shall be laid out or altered, unless seven days previous thereto a written notice of the intention of the selectmen of the town to lay out and alter the same, and stating the termini of such road, shall be posted up, &c.

By section 29, no such town or private way shall be established, as laid out or altered, &c., until the same, &c., shall have been reported to the town and accepted and allowed at some meeting of the inhabitants, regularly warned and notified therefor; nor unless such laying out or alteration, &c., shall have been filed with the town clerk seven days at least before such meeting.

From the terms used in section 28, the notices required to be posted up are so to be posted after the selectmen have so' far deliberated upon the subject that they have intended to lay out or alter the road which may have been in contempla-* tion. In coming to this stage of their proceedings, no notices to be given are referred to in the statute; and -none can be presumed to-have been designed, as' express provision is made that the notices shall be posted up before the laying-out, &c. This intention of the selectmen must be entertained upon some consideration and consultation among the' members of the board. The statute does not forbid any informal examination by them of the route, between the termini of the way, which it is supposed may be laid out or, altered. And if they should proceed so far as to trace out the lines of the road to be laid out or altered, and commit these doings to writing, without the design of making such memorandum the report of the laying out or alteration of the way, required by the statute to be made and filed with the town clerk, we see nothing in the statute which treats this as so improper, that the subsequent action, according to the provisions of law, are to be held as destitute of authority. The examination of the subject of the way, and the consultation thereon, and the memorandum made as supposed, may together satisfy them what may be proper, in relation to the laying out or altering the road, but still they are not supposed to be thereby disqualified to hear impartially those who may appear before them to be heard upon the subject.

The city council having the power, under the charter, which the selectmen and inhabitants of the town possessed before, it certainly is proper, and believed to be in harmony with the general practice, to refer an application for the laying out or the alteration of a street to the committee “ on laying out new streets,” (a committee provided for in section 2, of city ordinances,) in order that they may examine the subject matter of the application and collect all the facts appertaining thereto. The reference is made that, through their report and otherwise, the expediency of granting the prayer of the petition may be understood by the city council. And if, from the knowledge thus acquired, the committee report in favor of further action, it is not improper that they should recommend the particular manner in which the laying out or alteration should be made. This certainly the city council might reasonably expect, that they might know fully what it was proposed by the committee should be done, and the attendant expense to be incurred, as the statute interposes no prohibition of such a course. This course is not unlike the examination and consultation referred to, of the selectmen of a town, previous to their giving the notices of their intention to act in the premises; but obviously more proper, as the committee are supposed to have acquired knowledge which the city council have not.

In this case, neither the city council nor their committee had altered Temple street previous to the order to the latter of July 9, 1856; and, before any proceedings took place under this order,, all parties had been legally notified of the time and place where they could be heard before the committee. The notice to appear before the committee is. to be regarded as a notice to be heard before the city council, to whom every thing material may be expected to be reported. Harlow v. Pike, 3 Greenl. 438.

Although the committee were instructed, after they had first reported, to make certain specific alterations, all the opportunity for a full hearing Was afforded, which any one could claim as a right. And the alterations made by the committee, under direction • of the city council, were by no means conclusive. When the committee made their report, after the opportunity for persons ■ interested to be heard, the way had not been altered in the sense of the statute, and the copies of the record presented show that it was not so regarded. Votes of one board were not concurred in by the other. Some of these votes were in favor of a recommitment to the committee, with instructions to make specific alterations in lines and boundaries. And, when the matter was thus pending before the city council, the lines of the street, as increased in width by the committee, as directed by the boards, were not supposed by them, nor were they, in fact, determined in any respect, but they served as a basis for propositions of amendment. But the right of all persons had then been respected, and provided for; and if any one had presented himself and objected to the alteration made by the committee, he could have been heard, and the grounds of the objection, the committee would have, in some manner, made known to -the city-council.

The report of this committee was, of necessity, unlike that-of the selectmen of the town. That of the latter is the report of the board authorized and required to lay out or alter the way, and when made and filed their power ceased. The former was merely the report of a committee of the city council, who alone had the authority to finally lay out or alter the way.

This case, in this particular, is unlike that where the selectmen lay out a public way in a town, under the direction of the town, as in the case of Keen v. Stetson, 5 Pick. 492. In that case, the selectmen, who were an independent board and bound to act in the first instance, in order that a town way might be legally established, and lay out the way, in the exercise of their own judgment and sound discretion, if they laid it out at all, acted as the servants of the town, ministerially, in furthering the designs of the town, without exercising their own authority, and their doings in no respect differed from the acts of any other three men whom the town might have employed for the same purpose.

We are not satisfied that the proceedings of the city council, as represented upon the records, in reference to the alteration of Temple street, were erroneous.

Another error assigned is, that a time should be fixed when the city council should act upon the report, which was not done in this instance. This objection to the record does not seem to be relied upon in argument; but it may not be improper' to remark that the city council take the place of the inhabitants of the towns, as well as of the selectmen; and that a meeting of the city council took place on July 31, 1856, when the matter of the alteration of Temple street was brought up and discussed, which, we cannot doubt, was a compliance with the statute.

The record discloses no error in relation to the remonstrance of Judge Preble. It was received, read and referred to the committee “ on laying out new streets,” who, we are to suppose, considered the same and made known their views to the city council, which were not required to be made matter of record, and the original report was finally accepted.

It does not appear that any law, ordinance, or bill, for the appropriation of money, had passed both branches of the city council, having connection with the alteration of Temple street, and, consequently, none could have been presented to the mayor for his approval. No foundation, in fact, is perceived for this objection.

The report of the committee “ on laying out new streets,” having been accepted on July 31, 1856, is to be regarded as “ accepted and allowed,” within the meaning of R. S., c. 25, § 29. Mann v. Marston, 3 Fair. 32.

Other errors in the record were assigned, which the petitioner’s counsel have not urged as having a sufficient basis to require the writ prayed for, and we do not perceive that they constitute any legal defect. Writ denied.

Hathaway, May, Goodenow, and Davis, J. J., concurred.