State ex rel. Seiders v. City of Bangor , 98 Me. 114 ( 1903 )

Strout, J.

This is a petition for mandamus. For more than fifty years prior to 1901, the Bangor Bridge Company, under charter from the Legislature, had maintained a toll-bridge over the Penobscot Pi ver, between the cities of Bangor and Brewer. By chapter 208 of the Private aud Special Laws of 1895, as amended by chapter 360 of the Special Laws of 1901, the two cities, with the assistance of the County of Penobscot, as therein provided, were authorized to “take and purchase the bridge, property and appurtenances” of the. Bridge Company at a price to be agreed upon, or if not agreed upon, at the appraisal of a committee of three, to be appointed by the Chief Justice, and to be thereafter maintained by the two cities as a highway. The award of such committee to be conclusive of the value. The proportion of the value to be paid, and the expense of maintenance to be borne by Bangor aud Brewer, if not agreed upon, to be determined by the County Commissioners of Penobscot County; March 10, 1902, both cities voted to buy the bridge and make it free. Bangor and Brewer did not agree with the Bridge Company upon the price, and thereupon both cities applied to the Chief Justice for the -appointment of a committee, to determine the value of the bridge, property and appurtenances of the Bridge Company. On this petition a committee was appointed, who appraised the value of the Bridge Company’s property, at the sum of $62,348.00. . The report and appraisal of this committee was accepted and confirmed by the Chief Justice, by consent of the Bridge Co. and Bangor and Brewer on the twenty-first day of November, 1902. All these proceedings appear to be in conformity with the statute.

Bangor and Brewer having failed to agree upon the proportion to be paid by each for the property, or the proportion to be borne by each in its future maintenance, the City of Brewer by petition to the County Commissioners requested them to determine their respective proportions in accordance with section 4, chapter 360 of the Special Laws of 1901. On this petition the County Commissioners determined that Bangor should pay for the purchase four-fifths of $50,348, that being the amount of the value determined by the committee previously appointed, less $12,000 which the statute required the County of Penobscot to pay, and the City of Brewer should pay the remaining one-fifth, and that the expense of the future maintenance of the bridge should be borne by the two cities, in the same proportion. All these proceedings appear to be in due form.

Upon this petition for mandamus to compel Bangor and Brewer to pay the Bridge Company the amounts thus awarded, and to assume the future maintenance of the bridge and its approaches, in the proportions thus determined by the commissioners, Brewer, by its answer, admits its willingness to perform, but Bangor objects upon several grounds.

It is claimed that the act of 1895 as amended by the act-of 1901, “delegated public rights and prerogatives to private individuals and corporations” without consideration, and thereby improperly imposed burdens upon the public.

This contention is without merit. To change a toll-bridge to a free public highway is certainly a matter of public interest, broader than the local advantage to Bangor and Brewer. No prerogative was illegally delegated. The act authorized Bangor and Brewer to purchase the bridge, to make it public and free, or if a purchase was not made, to take it by right of eminent domain and thereafter maintain it for the public use. It was competent for the Legislature to do this, as under the law, if the bridge became a highway, Bangor and Brewer would be bound to maintain it, and there was no impropriety in allowing these cities to declare their desire as a condition precedent to the taking or purchase of the bridge.

It is also claimed that at the expiration of the time limited in the charter of the Bridge Company for the taking of tolls, the bridge became public property as a highway, and that the Legislature could not extend the period for taking tolls, as the acts of 1895 and 1901 provided, — that such extension was equivalent to the granting a new charter, which is prohibited by the constitutional amendment of 1875, since when such corporations can only be created under the general law. This constitutional provision has been held not to apply to charters previously granted, though amended subsequently, nor is such extension equivalent to a new charter. Farnsworth v. Lime Rook Railroad Co., 83 Maine, 440; Foster v. Essex Bank, 16 Mass. 245, 8 Am. Dec. 135; Vose v. Handy, 2 Maine, 329. This Bridge Company was chartered in 1828, and granted the right to take tolls for fifty years. In 1846 it was granted the right to rebuild its bridge, and its right to take tolls extended to fifty years from the time the bridge should be reopened for passengers. Nothing in either act provided for forfeiture of the bridge to the public, after the right to take tolls had expired. But if such Avould have been the result, if no action of the Legislature had occurred, it was certainly competent for the State to Avaive the forfeiture, that being the only poAver authorized to claim it. That body, by the act of 1895, extended the time for taking tolls by the Bridge Company. Such extension was within its legitimate authority. Lincoln & Kennebec Bank v. Richardson, 1 Maine, 80.

It is admitted that the Bridge Company had title by deed to the land approaches to the bridge at both ends, from the bridge to the higliAvays. It admits of great doubt Avhether such title to real estate could in any event be regarded as forfeited to the public, Avlien the right for taking toll had expired, there being no provision in the charter to that effect.

It is also claimed that the voters in Bangor, at the meeting in March, 1902, when it Avas determined to “buy and make free the toll bridge,” acted under a misapprehension of the facts and of the value of the bridge. But after the vote the cities of Bangor and BreAvei’, by their petition to the Chief Justice as provided by the act of 1895 as amended by the act of 1901, asked the appointment of a committee to find the value of the bridge, property and appurtenances as provided by the acts. On this petition a committee Avas appointed, an appraisal made and returned to the Chief Justice and Avas duly accepted and confirmed by him on November 21, 1902, the Bridge Company and the cities of Bangor and BreAver “consenting thereto.” It is now too late for Bangor to raise this objection, in the absence of a fraudulent valuation, which is not claimed.

When Bangor and BreAver had each, at a legal meeting of their voters, consented to take or purchase the bridge, to make it free, as proA’ided in the acts of 1895 and 1901, and the value of the bridge property had been determined, the rights of all parties became vested and the statutes then became imperative upon both cities to pay the price awarded by the committee, and to take the bridge under eminent domain as authorized by section 1, of the statute of 1901. The Bridge Company had no option, and neither Bangor nor Brewer, could by any action at any meeting called subsequently to that in. which tiie vote had been had, rescind their former vote, or escape the duty imposed by the act of 1901. Furbish v. Co. Com., 93 Maine, 129. Nor can they complain that the assessment of value by the committee was erroneous or excessive, since that assessment has been confirmed by the Chief Justice, with their consent.

It appears that on March 22, 1902, one span of the bridge was carried away by a freshet. The petition for appraisal of value was filed on April 14, i 902, and the appraisal was of its value, with that span out. It was in evidence that during the spring, summer and fall of 1902, the Bridge Company replaced this span with one of steel at a cost of about $26,000, and that that span was not included in the appraisal. It is also in evidence and üncontradicted, that at the time of the appraisal, the cities of Bangor and Brewer agreed that the appraisal should be had as the bridge was at the date of the petition, with the span -out, and if Bangor and Brewer were finally compelled to pay the award of the committee they should pay the Bridge Company, in addition, the cost of the steel span, and this agreement was then stated by counsel of both cities to the committee. These facts afford a complete answer to the argument that a bridge was to be appraised, and in fact the appraisal was of a part of a bridge only.

A more difficult question is presented. The act of 1895 and that of 1901, both provided that the county commissioners of Penobscot County should determine the proportional amount to be paid by Bangor and. Brewer for the bridge property and for its future maintenance. This has been done by the commissioners, but it is strenuously urged that it is not binding, because one of the commissioners was a citizen and tax payer in Brewer, and thereby was interested and incompetent to act. This objection was made by Bangor at the hearing.

The theory of the common law is that any person having a direct pecuniary interest in the result of any controversy, ought not to testify, nor adjudicate in such case, from the fear that his interest may influence his testimony or judgment. He was required therefore to be indifferent as to both parties to the litigation, having no pecuniary interest either way. But there are exceptions to that rule, sometimes from the necessities of the case, and more generally, as said in Fletcher v. Somerset Railroad Company, 74 Maine, 436, where the interest either way is “too remote, uncertain, contingent, speculative, theoretic and unsubstantial to be legally estimated.”

But it is competent for the legislature to remove the disqualification for interest, as has been done in this State, in case of parties to suits, and other interested witnesses, and jurors, where the town or county in which they pay taxes may be benefited by the recovery. B. S. (1883), c. 82, § 87, and a Justice of this court where his county is interested, B. S. (1883), c. 77, § 1; Commonwealth v. Brown, 147 Mass. 585, 591, 9 Am. St. Rep. 736, 1 L. R. A. 620. It may do this by express language, or its intention to do so may be inferred. So it may be inferred from the necessities of the case. As was said in Com. v. Ryan, 5 Mass. 90, that while great care should be taken to provide judges and jurors as free from interest as possible, “it is sometimes not possible perfectly to adhere to it. Every fine to the use of the Commonwealth may affect the interest of every citizen, as it may lessen the public taxes; but if citizens cannot be judges and jurors, no offenses can be punished by fine. Where penalties are given to counties, the'inhabitants may have an interest somewhat greater; and where penalties accrue to towns, the interest of the inhabitants may be a little more affected. This is all true in theory, but in practice it cannot be believed to have any affect. As some degree of interest in all cases of public prosecution for fines will necessarily be attached to jurors, it is for the legislature to decide when this theoretic interest shall be no good objection to a juror.”

The legislative intention that a slight financial interest shall not disqualify a juror is readily inferred, where otherwise there would be a failure of justice. Com. v. Ryan, 5 Mass. 90; Com. v. Worcester, 3 Pick. 462; Com. v. Burding, 12 Cush. 506. In the latter case it was held that a Justice of the Police Court of Salem could try the case, although he was a tax payer in Salem and the fine went to that town.

If the State condemns land for a public use, the damages must be assessed by a jury of citizens of Maine, unless the parties agree upon a committee, or none can be assessed and the condemnation would fail for non-payment of damages.

Jurors constantly sit in the trial of criminal causes whiph result in a fine paid to the state, and on appeals by land owners from the damages awarded by county commissioners on the location of a highway, where the damages are to be paid by the county in which the jurors are tax payers; but we are not aware that an objection on account of interest has ever been seriously entertained in such cases, though the statutes applicable are silent as to the question of interest, the inference being plain that from the necessities of the case the minute interest of the jurors in such cases is not a disqualification.

Our statutes contain many cases in which this same implication arises. In certain cases the county commissioners are authorized to appoint assessors of state and county taxes, ft. S. (1883), c. 6, § 108. So in case of damages for public parks by appeal to county commissioners, R. S. (1883), c. 3, § 57 — the establishment of ferries, R. S. (1883), c. 20, § 2 — purchase of lot for school house by municipal officers, in certain cases, R. S. (1883), c. 11, §§ 56, 57, 58. In case of repairs to a way ordered by the commissioners, they may appoint an agent, in certain cases, to make them, audit the expense, and the town becomes liable therefor. R. S. (1883), c. 18, §§ 53, 54, 55; town ways laid out by municipal officers, damages awarded by them, R. S. (1883), c. 18, §§ 14, 16; assessors of taxes in towns. In all these cases, and others that could be cited, the legislature evidently intended that the officers charged with the duty should act, notwithstanding their minute pecuniary interest.

In many of the instances the officers charged with the duty are necessarily interested as tax payers.

In this case, when the act of 1895 was passed, the Honorable John A. Peters was Chief Justice, and remained so for nearly five years thereafter. He was a citizen of Bangor and a large tax payer in that city. Yet the legislature provided that the Chief Justice should appoint a committee to appraise the value of the bridge property, who were to act under his instructions. The authority to appoint the committee was limited to the Chief Justice, no other person could make the appointment. If the cities had acted within four and a half years after the passage of the act, as they might have done, and were expected to do, the authority and duty of appointing the committee would have rested with him. Can it be doubted that the legislature intended to confer authority and impose a duty upon him as the Chief Justice, notwithstanding any interest he might have in the result as a tax payer in Bangor? It must have been expected that this duty would be discharged by him. If he could not act, all proceedings under the statute would fail, a result the legislature certainly did not intend. This consideration forces the conclusion that the legislature intended that his remote interest should not disqualify him.

So in both the act of 1895 and that of 1901, it was provided that the county commissioners of P.euobscot county should determine the proportion to be paid by Bangor- and.Brewer, an authority .arid duty not more important than the appointinent of a committee of appraisal, and instructions to it. . The legislature understood, the probability that one or more of the commissioners were likely to be citizens or. tax payers in one of the cities.- Yet it said nothing in the act. about disinterestedness. It provided no other tribunal to make, the apportionment. If for. any reason the commissioners .could not act, the purpose of the statute and of the two cities to obtain a free bridge must fail. The legislature reposed confidence in the character of the men who then were or should be commissioners, and imposed an important public duty upon them. All of them might be tax payers in one or both of the cities. No provision for disqualification on that account was contained in the. act. No reason is perceived why a different rule should apply to the commissioners than that applied .to the Chief Justice.

As in the case of the Chief Justice, the inference is overwhelming that the legislature intended to ignore the trifling and contingent interest of a tax payer in either city, too small “to be legally estimated,” and that it should not disqualify. As evidence of such intention great stress is laid on the fact that otherwise no result could be attained in Com. v. Ryan, supra, and Com. v. Burding, 12 Cush. 506.

The difficulty is not met by the suggestion that the commissioner residing in Brewer need not have acted, allowing the other members of the board to perform the duty. The statute conferred the power on the county commissioners as persons, not on the board of commissioners as a board. Machias River Co. v. Pope, 35 Maine, 19. It contemplated having the judgment of the three. They were not to act officially. Besides two or even all might have been tax payers in the city. State v. Intoxicating Liquors, 54 Maine, 568; Com. v. Emery, 11 Cush. 411.

It is further insisted that mandamus is not the proper form of remedy. It is true that it will not lie, unless the right is clear, and there is no adequate remedy by suit at law. It may be that after the appraisal by the committee and its acceptance and confirmation, the Bridge Company could maintain action against Bangor and Brewer to obtain payment of the award, but non constat that the Bridge Company desires to part with its property. It may prefer to retain it as a toll bridge, in which case no action would be brought. The corporation cannot be compelled to bring suit, and no execution or other process for collection of the award can issue from the court. The object of the statute was to obtain a free bridge for public use with the consent of Bangor and Brewer. That consent having been obtained, the public are interested that the end sought shall be reached. It should not be suffered to fail by the inaction of the Bridge Company or of the cities of Bangor and Brewer. The duty of the cities to pay, and of the Bridge Company, upon payment, to surrender the bridge, are duties in the performance of which the public have an interest. That interest is and can only be represented by the Attorney General, acting for the State. Mandamus is the appropriate and only process by which the State can compel the performance of the duties owed to the public by Bangor and Brewer, and secure a free bridge for the use of the public. Sanger v. Co. Com., 25 Maine, 291; Weeks v. Smith, 81 Maine, 538; Knight v. Thomas, 93 Maine, 500; Mitchell v. Boardman, 79 Maine, 471.

The determinination of the county commissioners of the proportion to be paid by Bangor and Brewer for the bridge property, and for its subsequent maintenance, is final and conclusive, and cannot be attacked, except for fraud or mistake of material facts, neither of which is proved nor claimed. It cannot be attacked upon the ground of erroneous judgment. It may be said, however, that according to the population and valuation of the two cities, Bangor does not appear to have any cause for complaint of the proportion assigned to it.

The prayer of the petition is that Bangor and Brewer may be commanded forthwith to pay to the Bridge Company the several amounts awarded against them by the committee, and. upon the payment of $12,000 by the county to assume the maintenance of the bridge thereafter in the proportions determined by the county commissioners. This is the proper prayer. The cities can make payment from funds in their treasuries, or borrow the money, or assess a tax for the amount, at the option of each. It is not for this court to direct the method. That is left to the determination of each city.

The parties agreed at the argument that the pleadings should be regarded as the alternative writ and return.

Peremptory writ of mandamus to issue as prayed for.