City of Bangor v. County Commissioners , 30 Me. 270 ( 1849 )

Shepeey, C. J.

— This is an application for a writ of certiorari to bring up a record of the proceedings of the county commissioners, on the petition of Henry Warren, praying that the damages occasioned by the location of a way over his land may be assessed by a jury. Upon that petition, jurors were summoned and such proceedings were had, that the petitioner obtained a judgment for an increase of damages, with costs.

By the sixth section of the act passed on February 12, 1834, incorporating the city of Bangor, the city council had the exclusive right to lay out streets or ways within the city, and to estimate in the first instance, the damages thereby occasioned.

The same section also provided, that “ any person aggrieved by the decision of the city council, may, so far as relates to damages, appeal therefrom to any Court of Common Pleas, within the county of Penobscot, which may be held within six months from and after such decision, which court is hereby empowered to hear and determine the same by a committee, if the parties agree thereto, or by a jury.”

For the respondents it is contended, that this jurisdiction is concurrent with that conferred upon the county commissioners, that the party, “ may so far as relates to damages, appeal therefrom,” or omitting to do so may by a petition, apply to the county commissioners, by virtue of the statute, chap. 25, <§>31. The provisions of that section would by the statute, chap. 1, § 17, be so enlarged as to embrace the action of city authorities in the location of ways, “ unless such construction would be repugnant to the provision of any act, specially relating to them.” But the provisions of the thirty-first section, cannot thereby be made applicable to the assessment of damages occasioned by the location of ways not laid out by virtue of the provisions of that chapter. The provisions of that section are applicable only to ways laid out by virtue of the provisions of that chapter. Ways in the city of Bangor are not laid out by virtue of the provisions of that chapter, but by virtue of the provisions contained in the city charter. The modes of proceeding for the location of ways, and for the first assessment and subsequent increase of damages, are in the two cases, essentially different.

The Revised Statutes have been enacted since the city charter was granted, but the right of the city to have ways located and the damages occasioned thereby assessed, according to the provisions of its charter, is not thereby impaired. It is provided by the fifth section of the general repealing act, that no private act not repealed, shall be affected by the provisions of the Revised Statutes, unless the provisions be different from the former general law on the same subject.

The presence and participation of the parties in the proceedings before the county commissioners could not confer it; and the commissioners had therefore no jurisdiction o/ power to entertain a petition and cause a jury to be summoned, and damages to be assessed occasioned by the location of a way in the city of Bangor.

If such be the conclusion, it is insisted, that the Court in the exercise of a legal discretion will not direct the writ to be issued, because no injustice appears to have been done. That rule is applicable to cases, in which the tribunal had jurisdiction of the subject matter, upon which it acted informally or illegally ; but not to cases over the subject matter of which the tribunal assuming to act had no jurisdiction. The wrong and injury in such cases, consist in the assumption by the tribunal of an authority and in the exercise of it, not by law conferred upon it. Writ granted.