62 Me. 504 | Me. | 1871
Dissenting Opinion
The following dissenting opinion was delivered by
The plaintiff corporation in their writ allege that the defendants, contriving and intending to injure it and deprive it of the use and benefit of its canal and the navigation thereof, by their servants and agents, on the twenty-first day of August, 1867, filled up the bed of said canal and covered the towpath, &c., with earth and stones, thereby rendering the same useless to the plaintiffs and destroying the same, and have kept the bed of said canal and tow-path filled with earth and stones to the date of the writ, to the damage of the plaintiffs.
To this declaration the defendants have demurred.
The defendants are a municipal corporation. The common council is their agent. Their powers are limited and defined by law, and they can no more transcend them than any agent can bind his principal by acts beyond his authority; more especially when the extent of that authority is fully known. Tlieh’ votes for illegal purposes are void. They cannot authorize nor command invasions of the rights of persons or property. Private property may be taken in certain cases for public uses by compensating the
The city may raise money to enable it to comply with and discharge all its various municipal duties and obligations, but that is the extent of its power.
The acts in question do not appear to have been done under or by virtue of any authority conferred upon the city. They are naked trespasses upon the plaintiffs’ property. The city of Portland had no more right to commit a trespass upon the property of the plaintiffs than upon the persons of the corporators. Nor could the city government pledge the estates of the inhabitants to make compensation for illegal acts which they had no authority to order or direct to be done.
If the acts were done in pursuance of an express vote of the city government, it was one not within the scope of their powers.
If they were done by the servants and agents of the city without any directory vote, they were the illegal and extra-official acts of such servants, for which the city would not be liable.
Such tortious acts could not be legally ratified, for the city government could no more ratify and confirm such illegal acts after their commision than it could, in advance, order and direct them to be done. Small v. Danville, 51 Maine, 359; Mitchell v. Rockland, 52 Maine, 118.
The remarks of Welles, J., in Hawey v. City of Rochester, 35 Barb., 178, are applicable to the case under consideration. “The question in the present case,” he says, “then comes to this: have the common council authority by their agents, servants or otherwise, to enter summarily upon premises, within the corporate bounds of the city, which are owned or lawfully and peaceably possessed by another, and commit the tortious acts which the referee finds to have been committed in this case ? The mere statement of the question would seem to indicate an answer in the negative. To maintain the affirmative would be monstrous. Most manifestly, it had no such power, and the ease is one where the acts of the common council were clearly ultra vires, and for which
The result is the same, whether the agents did the tortious act specified in the plaintiffs’ writ of their own volition, or in pursuance of the vote of the city government, which it had no authority to pass.
Lead Opinion
Rescript.
The declaration avers, and therefore the demurrer admits, that the city of Portland did the acts complained of. Those acts are prima facie acts of trespass. No justification or excuse being shown, the plaintiffs are entitled to judgment.
JExcep>tions and demurrer overruled.
Declaration adjudged good.