Inhabitants of Veazie v. Mayo , 45 Me. 560 ( 1858 )

The opinion of the Court was drawn up by

Rice, J.

This action Í3 brought to recover of the defendants, as directors of the Penobscot Railroad Company, the amount of a judgment recovered against said town of Veazie by one Phillips, for an injury occasioned by a defect in one of the public ways in that town, which defect, the plaintiffs allege, was caused by the operations of the railroad company in the construction of their road. The action is based upon a provision in the 3d section of c. 41, of the Acts of 1853, which is as follows : — “No railroad shall cross any street of a city, not a county road, without the written consent of the mayor and aldermen of the city, which written assent shall determine and state the manner and conditions upon which such crossing may be made; and shall be recorded in the County Commissioners’ office. And every such crossing, made contrary to the foregoing provisions, shall be considered a nuisance and liable to all the provisions of law relating to nuisances, and the directors of the company making the same shall be personally liable therefor.”

This statute is remedial, and applies to railroad corporations which had been chartered before its enactment, as well as to those of a subsequent date, unless they had actually entered upon the construction of their road, under prior existing laws. The Act was designed to afford greater security to the public, having occasion to use our public highways while railroads are in process of construction, and to protect such ways from injury, as far as practicable, by the construction of such railroads. It does not conflict with any of the provisions in the charter of the Penobscot Railroad Company, nor impose upon that corporation any additional duties, liabilities or obligations, but was simply designed more effectually to compel a compliance with the provisions of the charter, and, particularly, those contained in the eighth section thereof.

But, independent of and aside fróm all charter provisions, it is only the exercise of that police power which is always necessarily retained by the people in their sovereign capacity, for the security of the public safety, and of which they cannot be divested by legislative enactment or chartered immunities.

It appears that the city council of the city of Bangor, on the 30th of May, 1853, accepted the report of a committee, prescribing the terms on which this company should be permitted to cross certain streets in that city. This report or order of the city council was not recorded, as required by the Act of 1853, before the company commenced the construction of their road. The provision for recording is directory, and .does not constitute a condition precedent, to be performed before the company would be authorized to proceed with the construction of their road. Pond v. Negus, 3 Mass. 232: The People v. Peck, 11 Wend. 604: Hooker v. Young, 5 Cow. 269.

But it is contended by the plaintiffs that the acts of the city council were only preliminary, and not final; that no written permission was given by that body, in the action which was had therein; and, further, that the city council had no authority, under the statute, to act in the premises, and consequently that their action, whatever it may have been, was entirely nugatory.

Section 4th, of the charter of the city of Bangor, provides that the executive power of said city, and the administration of police, with all the powers of selectmen of Bangor, except as is provided in the eighteenth section of said charter, shall be vested in the mayor and aldermen, as fully as if the same had been particularly enumerated therein. And all other powers now vested in the inhabitants of said town, and all powers granted by the Act, shall bo vested in the mayor, aldermen and common council of said city, to be exercised when acting separately, by a concurrent vote, each board to have a negative upon the other. The city council includes the common council, as well as the board of Aldermen. This is a distinct body from the mayor and aldermen. Its action may be entirely different from that of the board of aldermen; the common council being much larger, numerically, than the board of aldermen, would have the absolute control when acting with that body in the capacity of city council. Hence, it by no means follows that the action of the city council and that of the mayor and aldermen, would be the same upon the same subject. The statute required the company, before proceeding to construct their road, to obtain the written assent of the mayor and aldermen. This they did not do. The action of the city council, whether preliminary or final, was unauthorized, and consequently unavailing.

According to the provisions of the report, the action is to stand for trial.

Tenney, C. J., Appleton, Hathaway, Cutting, and Goodenow, J. J., concurred.