81 Me. 411 | Me. | 1889
The petitioners ask for a writ of certiorari, to the end that the record of the city council of Lewiston, touching the laying out of Mill street in that city, may be quashed.
Upon notice, the city solicitor of Lewiston appeared and answered the petition by showing a certified copy of the record, and averring various facts supposed sufficient to influence the discretion of the court as to awarding the writ. None of these facts show how the record can be truthfully amended and made more perfect than it now is, save as to the notice, given by the committee, of the time and place of hearing; so that, with this exception, and possibly one other as to the petitioners’ waiver of objection to authority of the committee, the case may be considered as though the writ had issued, and the record had been certified to the court for its inspection.
The record shows a sufficient petition for the location of the proposed street, and that the same was received by the city council and referred, in the usual course, to its committee on highways, for its action thereon.
I. It is contended that such reference was an unauthorized
By § 7 of the city charter, the city council is given “exclusive power and authority to lay out any new street or public way,” in the manner provided by the law of the state for the laying out of “public highways.”
By § 1, of c. 24, of the revised ordinances, the city council is authorized to refer any written application for the laying out of any street, highway, or private way, to the committee on highways; and the committee is required, after giving legal notice, to proceed and examine the premises, and, if in its judgment common convenience and public necessity require the laying out of the same, to estimate the damages sustained thereby, and report its doings in writing ,to the city council, as soon as may be; and the ordinance further provides that, after such report shall have been accepted and adopted by an order of the city council, such street, highway, or private way shall become established and known as a public street, highway or private way.
The city council, composed of two branches, can hardly be expected to give its attention as a body, in the first instance, to all the details incident to the various questions arising at a hearing involving the expediency of locating a new street, and of indemnifying those whose lands may be taken or damaged thereby. Undoubtedly, as the cases cited at the bar clearly show, it can not delegate its authority to a committee, to finally and irrevocably act in its place and stead. That is not the purpose and effect of the ordinance; but such purpose and effect merely are, in the first instance, to refer the matter to a committee to hear all parties interested, and determine what seems expedient action in the premises, and report the same to the city council, where the matter can then the more intelligently be considered and finally adjudged.
The city charter of Portland confers upon its city council exclusive authority to lay out, widen or otherwise alter, or discontinue the streets or public ways in the city, without petition therefor ; but, unlike the charter of Lewiston, requires this to be done by a committee of the city council, after giving a specified notice of
In Preble v. Portland, 45 Maine, 241, the expediency of widening Temple street, having been referred to a committee, upon the coming in of its report, the city council amended it, and ordered “that said committee be authorized and directed to alter said street” accordingly. The committee, having given the required notice of its proceedings, and heard the parties, proceeded to widen the street as directed, and made return to the city council, where the same was accepted.
In that case, it was objected that no notice of the widening of Temple street had been given by the city council as required by law. But the court said: “Neither the city council nor the committee had altered Temple street previous to the order to the latter” directing the alteration; “and, before any proceedings took place under the order, all parties had been legally notified of the time and place where they could be heard before the committee. The notice to appear before the committee is to be regarded as notice to be heard before the city council, to whom every thing material may be expected to be reported. Harlow v. Pike, 3 Greenl. 438.”
The above language of the court applies with force to the case' at bar; for, although the charter in that case provided for a hearing before a committee, just as the ordinance does in this case, yet, the court considered that the committee stood in the place of the city council fox the purposes of hearing the parties, and of reporting the existing facts and necessities of the case to it, where-final action must determine the validity and effect of the committee’s doings; and that its notice served the purpose of a iiotice for a hearing before the city council. The cases are not exactly alike; but the doctrine of the court in the Portland case, when carefully considered, is very nearly decisive of the case at bar. The Portland charter compels procedure through the aid of a committee. The Lewiston city council determined, by ordinance, to adopt that method of procedure. The method in one case is compulsory; in the other case voluntary; but it is equally feasible and convenient in both.
In Cassidy v. Bangor, 61 Maine, 434, a petition to widen a street was referred to the board of engineers; and they, having given seven days’ notice of the time and place of hearing, and having heard the parties, proceeded to widen the street and made report to the city council that was duly accepted.
It was objected there, as here, that the proceedings were void, because the council acted through, and by the aid of a subordinate body; and because of insufficient notice. But the court held the commitment to the engineers under the ordinance valid, and the notice sufficient, although the notice for estimate of damages was insufficient, under the requirements of a subsequent statute.
The cases of Preble v. Portland and Cassidy v. Bangor settle the contention of the petitioners adversely to them, and must ;.govern the present case.
II. It is contended that the notice given by the committee of "the time and place of hearing was insufficient, inasmuch as it was vfche notice provided by statute as a pre-requisite to the laying out mf town ways, instead of highways.
The city charter requires the proceedings of laying out streets to conform to the laws relating to laying out “public highways.” .‘So does the charter of Bangor; and the court held in Cassidy v. Bangor, supra, the seven days’ notice, applicable to town ways, , sufficient. This view seems most natural and reasonable. The .charter speaks of laying out “any new street or public way,” neither of which would become a “highway,” within the statute meaning' of that word. They would become public ways or , streets within the city, and under its exclusive control, the same . as town ways are under the exclusive control of any town. The words “street or public highway,” in the charter of Lewiston, are synonymous, and mean public ways or streets, and nothing else. 'The notice .given by the committee must be held sufficient.
This contention is not sustained by the facts. The report of the committee expressly states the fact, and upon the coming in of the report, the city council ordered that the street, “as laid out and reported by the committee as aforesaid, be and is hereby accepted, allowed and established as a street or public way for the use of the city of Lewiston.” This order adopts the findings of the report, and makes the adjudication of the committee the adjudication of the council.
But it is said that the adjudication is neither, that “common convenience and necessity” require the location, a pre-requisite named in the statute, nor that “common convenience and public necessity” require it, the pre-requisite called for by the ordinance, but is, that “public convenience and necessities of the city” require it.
The adjudication is neither in the exact phrase of the statute, nor of the ordinance ; but it is the equivalent of both. It means, the public convenience and necessities of the citizens require the way; and it is hard to see why public convenience is not common to all. ,
Petition denied with costs.
