Cassidy v. City of Bangor , 61 Me. 434 ( 1871 )

Dickerson, J.

The petition calls in question the validity of the doings of the city council of Bangor, of Feb. 2d and 4th, 1871, in widening Pickering square and independent street. The presiding justice, on a hearing of the case, denied the writ, as matter of law, and the plaintiff' excepted. Several errors are assigned.

I. The petition alleges that “ the laying out and widening ” were not in accordance with any petition therefor. The proceedings of the city council were had upon two petitions, one praying for “ an enlargement of area to accommodate market teams . . „ by widening Union and Fore streets and Pickering square,” and the other that “ Pickering square be enlarged in the direction of Union street.” The city council widened Pickering square and Independent street.

Whilq the statute requires the county commissioners, in the location of highways, “ to conform substantially to the description [in the petition] without adhering strictly to its limits,” it contains no such limitation of the powers of municipal officers in locating town and private ways. R. S., c. 18, §§ 1, 18.

By examining the petitions and the plan of the street engineers, it is obvious that the chief object of the petitioners was the enlargement of Pickering square in the direction of Union street. The petitioners having called the attention of the city council to the necessity for better accommodations for the public travel in that locality, it belonged to the latter to devise the best mode of securing this object. The petitioners might suggest a plan for doing this, but that would by no means be conclusive upon the city council; the petitioners cannot supersede the discretion of the city council by interposing their own. The petition gives the city council jurisdiction over the whole subject-matter, and it is their province to determine what changes, if any, are needed, and the manner of making them. The city council widened • Pickering square by including therein all the land lying between Hodsdon, Short, and Independent streets and Pickering square as then existing. While this change did not, in terms, widen Union and Fore streets, as prayed for in one of the petitions, it had that effect practically, by throwing the whole space between Fore and Hodsdon streets open to the public accommodation. So, also, the widening of Independent street largely increased the space available for public use on a considerable portion of Union street. When the main object of the petitioners, the widening of Pickering square, was accomplished by these changes, it would establish a dangerous precedent to hold that the doings of the city council are invalid because Union and Fore streets were not widened, which was' prayed for, or because Independent street was widened, which was not prayed for. In such cases much must be left to the discretion of the municipal authority, and in the- case at bar there is nothing to show that there was an abuse of. such discretion.

2. It is contended that the doings of the city council of Feb. 2d and 4th, 1871, cannot be sustained because the proceedings under the petitions were finally closed on Nov. 8, 1870. The record shows that oil that day the city council accepted the report of the street engineers, laying out and widening Pickering square and Fore and Independent streets; and it also shows that that meeting was adjourned to Nov. 17, 1870, when the vote accepting that report was reconsidered, and new instructions were issued to the street engineers touching the same subject. It was upon the report of the street engineers, made in accordance with these instructions, that the proceedings of Feb. 2d and 4th, 1871, were had.

The adjournment was carried for the declared purpose of the further consideration of the subject under consideration, to wit, the report of the street engineers. The adjournment, under these circumstances, carried with it the whole subject under consideration when it took place, and gave to the meeting of Nov. 18,1870, the same power to do what it might have done on Nov. 8, 1870; the latter meeting was simply a continuation of the former one. When the declared purpose of the adjournment is considered, in. connection with the subsequent doings, the adjournment itself may be regarded as interpreting the action of the city council in accepting the engineers’ report on Nov. 3, 1870, and showing that the city council, by such acceptance, intended to bring the subject before them, and not to adopt and establish the laying out and widening as set forth in the report. It was competent, moreover, for the city council, at their meeting on Nov. 3, 1870, as a necessary incident of their authority over the subject, to reconsider any vote passed at that meeting, and as the meeting of Nov. 18, 1870, was a continuation of the meeting of Nov. 3d, it was also competent for them, on that day, to reconsider the vote they passed touching this matter at the previous session of Nov. 3d.

Besides, the report of the street engineers made Nov. 8, 1870, is lost, was never recorded as required by tb e city ordinance, and there is no plan or survey by which to determine wdth certainty what was embraced therein, as is also required by an ordinance of the city. The only record evidence of any alteration in the lines of the streets under the petitions is the following: “ Report of street engineers of their laying out and widening Pickering square and Fore and Independent streets accepted.” At what particular points the alterations in the lines of those streets and that square began and ended, and in what directions they extended, cannot now be determined by any monuments, courses, or distances. It is obvious that the record is insufficient to establish any valid laying out or widening of any streets or square by the proceedings of the city council of Nov. 3,1870.

3. The next objection is that the records do not show that the city council adjudged the widening to be of “ common convenience and necessity ” before they proceeded to make the alteration. The city ordinance referred to, § 1, provides that “ whenever any citizen or citizens shall apply in writing to the city council to lay out, widen, or otherwise alter any public street, square, or highway, and the same shall be of common convenience and necessity, the said city council may commit the same to the board of street engineers,” who are required to make a report of their doings therein, “ subject to the revision and determination of the city council.” This ordinance does not, in terms, require that the city council shall first adjudicate upon the question of “ common convenience and necessity ” before they commit the subject to the street engineers, and that such adjudication shall be recorded. It is, therefore, open to construction upon this point. Unlike county commissioners, the city council, ordinarily, do not make a careful personal examination of the locality, but intrust that duty to the street engineers; and, if they do, they may not be prepared to adjudicate finally upon the question of “ common convenience and necessity ” until they have received the report of the engineers. Indeed, they cannot, ordinarily, form an intelligent judgment until they have seen that report. It is, then, only that the city council are in the situation required of the county commissioners when they are authorized to adjudicate upon this question. R. S., c. 18, § 4. Their preliminary decision upon this point must necessarily be made upon an imperfect knowledge of the facts, and need not appear formally of record. The commitment of the subject to the street engineers is sufficient evidence of such preliminary adjudication when, as in this case, the record shows that the city council, upon receipt and acceptance of the report of the engineers, adjudged “ the widening so laid out by them of common convenience and necessity.”

4. It is further contended that the engineers did not give the requisite notice prior to making their survey and report of Feb. 2, 1871. While the counsel for the defendants admits that the notice given was insufficient, he argues that this does not vitiate the doings of the city council in adopting and establishing the laving out and widening reported by the engineers, as such notice relates only to the subject of damages.

This raises the question whether the laying out, etc., and the estimation and apportionment of the damages are an entirety or distinct and independent acts ; whether the former may be upheld and the latter declared void, or whether both must stand or fall together. It is obvious that the two acts are not necessarily interdependent, there being nothing in their nature requiring them to be done at the same time or by the same tribunal. If they are an entirety they must be made so by statute. The notice required by the Act of 1835, § 1, amendatory of the city charter, relates exclusively to the subject of damages. While the city council may make the required location without giving that notice, it has no authority to make the assessments without giving it. The act of laying out, etc., and the estimation and apportionment of damages are distinct and independent acts, so far as the notice is concerned ; the former may be sustained and the latter held void.

This seems to have been the view of the city council, at they time, as they directed the proper notice to be given on tbe day. they adopted and established “ the laying out and widening ” complained of, in accordance with which order a new estimate and apportionment of damages -were made in substantial compliance with the requirements of law.

We see no objection to these proceedings. Tbe first assessment being void, it was not necessary for tbe city council to reconsider their vote in relation to it. Though the second assessment may have been made by different persons from those who made the location, it was made by members of the city council, who had the same authority to act upon that question that their predecessors would have had if they had finished the business during their term of office. For this purpose the city council must be regarded as a continuing board.

The fifth objection to the validity of the doings of the city council has been considered .in connection with the first.

Exceptions overruled.

Writ denied.

Appleton, C. J.; Cutting, KeNT, Walton, and DanfoRTH, JJ., concurred.