Cole v. County Commissioners

Libbey, J. The proceedings in this case were had by virtue of the act of 1873, c. 375, as modified by act of 1885, c. 495. The act of 1873 reads as follows: "Sect. 1. That the county commissioners of the county of Cumberland, on petition of one hundred or more citizens of said county, be and hereby are authorized and empowered to locate a public highway in the city of Portland, extending into tide waters of sufficient depth, with a good and substantial ferry-way and landing therein, suitable for the passage and accommodation of teams and foot passengers, with right to take private property therefor, in like manner and effect as in locating other highways in said county.” [536] "Sect. 2. Said highway and landing shall be governed and controlled by the city of Portland, and so much of said highway and landing as is not required for said ferry purposes, may be used or leased by said city for any other purpose.” The act of 1885, § 8, provides "that the county commissioners of the county of Cumberland shall not be called upon to locate a public highway in tide waters in the city of Portland, under the act of 1873. . . . until a double end steam ferry-boat, suitable for the carriage of teams and passengers, is put upon said ferry route, and its continuous operation secured, to the satisfaction of said county commissioners.” At the June term of the court of county commissioners of the county of Cumberland, a petition in all respects in compliance with the acts aforesaid, was presented to said court, and upon due proceedings had by said commissioners, they heard the parties interested, and at the January term of said court, reported that all the requirements of the acts aforesaid had been complied with, but they adjudged and determined that public convenience and necessit}7 did not require the location of the highway prayed for. An appeal was duly taken to the January term of the Supreme Judicial Court in said county, when a motion was filed by the remonstrants to dismiss the appeal on the ground that the court had no jurisdiction. This motion was overruled and a committee was appointed. To this ruling exception ivas taken. At the April term of said court the committee made their report, in which they " adjudge and determine that common convenience and necessity do require the location of the aforesaid highway and ferry landing on Portland pier, in the city of Portland, as prayed for in said petition, and we do wholly reverse the judgment of said commissioners.” Several objections were filed by the remonstrants to the acceptance and confirmation of the report, but four only are relied upon, and need be considered. I. It is claimed that, inasmuch as the act of 1873 was not a general statute, but special and local in its character, enacted for a special purpose, it conferred upon the county commissioners [537] power to act but once under it; and that their power was exhausted by their adverse action on the petition of David Keazer and als. in 1873. We think this objection can not prevail. The petition of Keazer and als. did not describe the way to be located in any manner, and therefore gave the county commissioners no jurisdiction to act under the statute. It. S., c. 18, § 1. Their action upon that petition was void. But we are of opinion that the act of 1873 should receive a broader construction than that claimed for it by the learned counsel for the respondents. Before its passage, the county commissioners had no power to locate a public highway in the city of Portland ; nor could they locate one into tide waters. The act of 1873 removed both of these limitations upon their jurisdiction, and in these respects enlarged it to be exercised " in like maimer and effect as in locating other highways in said county.” Under the general statute giving them the power to locate other highways in said county, the only limitation upon their jurisdiction is that if their decision is against the prayer of the petition, no new petition shall be entertained for one year thereafter. K. S., e. 18, § 45. The doctrine of res adjudícala does not apply to the action of county commissioners in the location of highways. The facts and situation may be such as to require them to refuse to locate on one petition, when such changes uniy take place in the wants and necessities of the public as to require the location a year or two thereafter. II. It is contended that there is no appeal given by law from the judgment of the county commissioners under the act of 1873. This contention can not be sustained. The case of City of Belfast, appellants, 53 Maine, 431, is conclusive against the respondents. The proceedings for the location of the highway under said act, are in all respects the same as in the location of other highways. TII. The third ground of objection is that the act of 1873 is unconstitutional, inasmuch as it authorizes the taking of private property for private uses. This objection is based on the second section of the act, which provides that " so much of said highway [538] and landing as is not required for said ferry purposes, may be used or leased by said city for any other purpose.” The fallacy of this position is that it assumes that the act authorizes the taking of private property for private uses. The power conferred upon the commissioners by the act is to locate a " public highway” in Portland and into tide waters, and to take private property therefor, " in like manner and effect as in locating other highways in said county. ” The highway is to be located only when it is adjudged to be of public convenience and necessity. They can take private property only for the " public highway,” as in the location of other highways. They can not take it for the use of the city. The right given to the city by the'second section is contingent and may never be brought into life, and that section is entirely independent of the first section. Assuming that the legislature exceeded its constitutional power in enacting the second section, it may he rejected without in any way impairing or affecting the powers granted in the first. It is a well settled rule of law that the same statute may be in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand, while that which is unconstitutional may be rejected. Allen v. Louisiana, 103 U. S. 80; Packet Co. v. Keokuk, 95 U. S. 80; Packard v. Lewiston, 55 Maine, 456; Schwartz v. Drinkwater, 70 Maine, 409; Fisher v. McGirr, 1 Gray, 1. In what we have said we do not mean to hold that the second section is in conflict with the constitution. If the contingency stated in the act occurs, and the city undertakes to exercise the license given by it, it will be in season to decide this question, if raised and properly brought before the court. Packet Co. v. Keokuk, 95 U. S. 89. IY. The last objection is that the committee have exceeded the power conferred on them by law. We can see no ground for this objection. By R. S., c. 18, § 49, the committee is required, after viewing the route and hearing the parties, to report " whether the judgment of the commissioners should be in whole or in part affirmed or reversed.” They reported that [539] tho judgment of the commissioners should be wholly reversed, and " that common convenience and necessity do require the location of said highway and ferry landing on Portland pier in the city of Portland, as prayed for in said petition.” The substance of this adjudication is that the whole highway should be located as prayed for. This is strictly within their legal authority. When the report is accepted and judgment entered thereon, and is certified to the court of commissioners, the case will stand precisely the same as if the commissioners had, themselves, made the same adjudication; and it, will become their duty to carry the judgment of the appellate court into full effect, as if made by themselves. The water terminus of the highway is described in tho petition, "the end of said pier and into tide waiters to give a sufficient depth of water.” It will be the duty of the commissioners in making the location, to fix the precise termini of the highway. In doing so, they are not required by the judgment of the appellate court, to adhere strictly to the bounds named in the petition ; but they must conform substantially to them, so as to effectuate the purpose sought. E. S., c. 18, § 1. Exceptions overruled. Peteiis, C. J., WaltoN, Virgin, Emery and Haskell, JJ., concurred.