Pillsbury v. Mayor of Augusta

Foster, J. Petition for certiorari to quash the proceedings of the mayor and aldermen of the city of Augusta in discontinuing [75] a portion of Oak street, and thereby changing the course of travel through Dickman street, on account of certain alleged errors and defects in the records relating to such proceedings. The case comes before the court upon report of the petition and answer, no evidence having been taken on either side. Nine errors are assigned. The second is not insisted upon, and the remainder, several of which relate substantially to the same objection, may be grouped into three classes. 1. The cause first assigned is that a majority of the original petitioners for the discontinuance and change of the course of travel of the street in question, withdrew their names from the petition, and remonstrated against the same before final action taken by the municipal authorities of the city. Assuming this to be true as claimed by these petitioners, we do not think this is error. The petitioners in the proceedings were citizens of Augusta, and the petition related to a subject matter over which the city council had jurisdiction. It is not suggested that the petition was not in due form. Its object was to call the attention of the city council to the suggested change. It gave them jurisdiction over the subject matter, and jurisdiction having attached, it was then in their province to determine what changes, if any, in accordance therewith, public convenience required. Although the petitioners might deem it for the best interests of the public that certain changes should be made, the council were not necessarily to be governed by their suggestions. While the petitioners might consider it proper that the discontinuance and change suggested by them should be made, the city council were possessed of discretionary powers, and were to be governed not particularly by the number of names upon the petition, or the statements set forth in it, but upon evidence adduced at the hearing, and whose decision was to be rendered upon what might be considered by them to be for the public good. The petition having been received, afforded the proper basis for an investigation in relation to what the public interests might seem to demand, rather than for the purpose of superseding their discretion. Cassidy v. Bangor, 61 Maine, 440. Consequently, jurisdiction having once attached, the mere question [76] of numbers does not become essential to the validity of the proceedings. 2. The second class of errors alleged is, that the discontinuance was conditional; that the Maine Central Bailroad was authorized to erect a stone wall across a portion of the street, and that the action of the municipal authorities of the city in thus authorizing this erection, based their adjudication in reference to the discontinuance and change upon a contemplated bargain with said railroad, and not upon public convenience and necessity, thereby benefitting individuals, or a corporation, to the detriment of the public, and especially of those residing upon said street. A copy of the records of the city council in relation to the whole proceedings, has been laid before the court in the answer of the respondents. Not having been annexed to the petition, these copies properly form a part of the respondents’ answer, which, so far as it relates to the record in question, is in the nature of a return of the doings of the city council, and is conclusive of the facts set forth in such record. Levant v. Co. Commissioners, 67 Maine, 435; Tewksbury v. Co. Commissioners, 117 Mass. 564; Fairbanks v. Fitchburg, 132 Mass. 43. From an inspection of those records, we are satisfied that the action of the city council was neither conditional, nor based upon any bargain with the railroad. We are to assume that the records speak the truth. We must take them as they appear. The petition for the proposed discontinuance and change contains no reference to any action on the part of the railroad. Upon that petition due notice was given, a hearing had, and the discontinuance was ordered and effected. The order passed by the city council appears to be in the most explicit terms — is absolute and unqualified, and based upon no condition or bargain. The recommendation of the committee of the board, it is true, states that they believe the public interests demand the alteration, as prayed for by the petitioners, provided Dickman street is improved and graded. But this was a statement in their report to the board, and was not the final action of the council in the discontinuance of the portion of the street in question. It by no means establishes [77] the fact that the discontinuance was conditional. In the same report, the committee before whom the hearing was had, state that the street was not used to any extent as a highway for horses, teams and carriages, on account of the great ascent which made it dangerous in its abrupt approach upon the railroad crossing, and that it could not be graded without great expense to the city, as well as injury to the property of the residents upon it. That report negatives the claim set up in relation to any bargain or offer on the part of the railroad company, and asserts in positive terms that public convenience and necessity demanded the alteration. But the records show that at the same meeting at which final action was taken and the discontinuance was effected, another order was also passed authorizing the railroad company to erect a stone wall along the west line of the railroad, across a portion of the street, with stone steps twelve feet in width, to be covered with boards in the winter season, for the use and convenience of foot passengers. This wall was to be built under the direction of the street commissioner, mayor and committee on highways. The effect of this order was that the railroad company, by being authorized to construct the wall, bore the expense attendant upon the discontinuance, and thereby saved the city from any burden on that account. The legality of the proceedings were not affected by this fact. The same question came before the court in Massachusetts in the case of Parks v. Boston, 8 Pick. 218, in which the court meet the objection in these Words : " If the public necessity and convenience required the alteration, it is immaterial at whose expense it was made. A donation or contribution from individuals to relieve the burden upon the city, has no tendency to prove that the enlargement of the street was not a public benefit. It is not material at whose expense such are laid out or altered.” The same doctrine has been laid down in this state in the case of Gay v. Bradstreet, 49 Maine, 580, and in Coombs v. Co. Commissionerss 68 Maine, 484. 3. The last assignment of error is that no damages were assessed, nor return made that none had been sustained, although [78] by a vote at a meeting prior to that upon which final action was taken, all matters relating to damages were referred to a committee who were requested to report at the next meeting of the board. It has been decided in several cases that the proceedings in relation to the discontinuance of ways are not aifected on account of there being no determination in relation to damages, and nothing done upon that subject. Howland v. Co. Com. 49 Maine. 143; Hicks v. Ward, 69 Maine, 441. Nor do we think the present case is one which calls for any exception to-the rule. The action of the city council appears to be based upon the ground of public convenience and necessity. In such cases, much must be left to the discretion of the tribunal whose province it is to determine those questions. Nothing appears from the records to show that they have not honestly exercised that discretion, or that there has been such informality or illegality in the proceedings as to warrant this court in granting the prayer of these petitioners. Bethel v. Co. Commissioners, 60 Maine, 539. Writ denied with costs. Peters, C. J., Danforth, Virgin and Haskell, JJ., concurred. Libbey, J., did not sit.