State ex rel. Seiders v. City of Bangor

Const. Law. Eminent Domain. Corporations. Charter, Extension. Toll-Bridge. Condemnation Proceedings. Award. Confirmation, by consent. Waiver. Apportionment of Value, between two cities. Committee — Personnel of. County Commissioners, Remote interest disregarded by legislature. Vote. Collateral Attach. Mistake, of voters. Highway. The Public, Protection of its interest. Attorney General. Mandamus. Const. Maine Art. IV, § 14, (Amend, of 1875). Spec-Laws, 1828, c. 529; 1846, c. 825; 1895, c. 208; 1901, c. 360. The further extension of an old toll-bridge charter is not equivalent to the granting of a new charter. Where a toll-bridge is converted into a highway, the two cities divided by the river spanned by the bridge, are bound under the law to maintain it. There can be no impropriety in the legislature allowing these cities to declare their desire as a condition precedent to the taking or purchasing of such a toll-bridge for a highway. Section 14 of Article IV Const, of Maine (the amendment of 1875), relating to the organization of corporations under general law, has been held to have no application to charters previously granted, even though amended • subsequently. The Bangor Bridge Company was chartered in 1828, and was then 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 to passengers. Nothing in either act provided for forfeiture of the bridge to the public after the right to take tolls had expired. Held; that, even if forfeiture would have resulted without legislative action (which is not here decided), it was certainly competent for the legislature to waive the forfeiture, that being the only power authorized to claim it for the State. The act of 1895, extending the time for taking tolls by the Bridge Company, was within the legitimate authority of the legislature. It is claimed that at the March Meeting in 1902, in Bangor, when by a majority vote it was determined to “buy and make free the toll-bridge,” the voters acted under a misapprehension of the facts and of the value of the bridge. Held; that it is too late for Bangor to raise this objection, when, long after the vote was taken, it joined with Brewer in a petition to.the Chief Justice, asking the appointment in accordance with the act, of a committee to find the value of the bridge property; which was done, and the appraisal accepted and confirmed, with the consent of all parties, including Bangor. When each of the cities had duly voted to take or purchase the bridge as provided 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 by eminent domain as authorized by sec. 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 the vote had been taken, rescind their former vote, or escape the duty imposed by the act of 1901. Neither of the cities can complain that the assessment of value by the committee was erroneous or excessive, since that assessment was confirmed by the Chief Justice, with the consent of both. One span of the bridge was carried away by a freshet March 22,1902. The petition for appraisal of the value of the bridge was not filed until April 14, 1902. Beginning in the same spring, and working during the summer and fall of 1902, the Bridge Company replaced the span carried away, with one of steel, at a cost of about §26,000. 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 further agreed that if the two cities were finally compelled to pay the award of the committee, they should pay the Bridge Company, in addition, the cost of the new steel span; and this agreement was stated by counsel for both cities to the committee. Held; that, in view of these facts, a contention that an entire bridge was to be appraised is not well founded. When it is clear that the legislature, in designating the County Commissioners to determine the proportion of value of a bridge to be paid by each of two cities, understood that one or more of the commissioners would likely be citizens or tax payers in one of the cities, held; that the legislature clearly intended to ignore the remote interest possessed by one of the commissioners by reason of being a resident and-tax payer of one of such cities. The determination by the County Commissioners of the proportions of the value to be paid respectively 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, Where two cities have consented to the taking of a toll-bridge for a highway by proper condemnation proceedings, 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 either of the cities. 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 in connection with this bridge by the cities of Bangor and Brewer, and thus secure a free bridge for public use.

On report. Petition for mandamus. It was agreed by the parties at the argument of the cause before this court in banc that the petition and answers should be regarded as.the alternative writ and return. The petition was as follows: — To the Honorable William Penn Whitehouse, Justice of the Supreme Judicial Court: And now comes George M. Seiders, Attorney General for the State of Maine, in his proper person, and by virtue of his office and in behalf of said State, and respectfully represents: First. That on the thirteenth day of March, A. L. 1901, and for a long time prior thereto, the Bangor Bridge Company, a corporation duly created and organized under the laws of the State of Maine, was and ever since has been and now is maintaining a toll-bridge with its approaches between the cities of Bangor and Brewer across the Penobscot River, and that during said time there has been and now is no highway between said cities. Second. That by Chapter three hundred and sixty of the Private and Special Laws of Maine for the year nineteen hundred and one, approved March 13, 1901, and now in force, the following provision was made by the legislature, to the end that the said bridge and its approaches might be a public highway, to wit: “Section 1. Chapter two hundred and eight of the private and special laws of one thousand eight hundred and ninety-five is hereby amended so that said chapter, as amended, shall read as follows: ‘Section 1. The cities of Bangor and Brewer, or either of them, with the assistance of the County of Penobscot as hereinafter pi’ovided, are authorized to take and purchase the bridge, property and appurtenances of the Bangor Bridge Company, on the payment to said Company of such sum as may be agreed upon; or as may be found as the value of said bridge, property and appurtenances, by a committee of three disinterested men, to be appointed by the Chief Justice of the Supreme Judicial Court, the award of a majority of whom shall be reported to the Supreme Judicial Court, in Penobscot County, in term time or in vacation, and the said Chief Justice may confirm the same or recommit it for the correction of errors, if justice so requires. The award of the committee shall be conclusive as to the amount. ‘Section 2. The said cities of Bangor and Brewer may at any time file a petition in the Clerk’s office of the Supreme Judicial Court for said County of Penobscot, in term time or in vacation, addressed to the said Chief Justice of said court, who, after notice to said Bridge Company and said County Commissioners, shall after hearing and within twenty days after the filing of said petition, appoint said committee, who shall forthwith organize, and after due notice and hearing proceed under proper instruction from said court, to the determination of the value of said bridge, property and appurtenances. In assessing and determining the value, the committee shall not award anything for franchise. ‘Section 3. Until this value shall be agreed upon, or determined as aforesaid, and the amount thereof shall be paid to said Bridge Company, the l’ight to take tolls as established by chapter three hundred and twenty-five of the laws of eighteen hundred and forty-six, and not exceeding the rates now charged shall be continued subject, however, to legislative regulation, as provided in said chapter. ‘Section 4. If the cities of Bangor and Brewer and the County Commissioners of Penobscot County shall jointly agree with said Bridge Company upon said value, or if said value be determined as aforesaid, the said County Commissioners are hereby directed and authorized to cause forthwith to be paid to said Bridge Company from fclie treasury of the County of Penobscot and of the moneys of said County a sum equal to one-half of the value of said bridge ascertained in either of the above named ways; provided, however, that if said one-half of said value shall exceed the sum of twelve thousand dollars, said County of Penobscot shall pay said sum of twelve thousand dollars to said Bridge Company for its portion of said value and no more; provided further, that such payment by said county to said Bridge Company shall not be made unless and until said cities,shall pay the remainder of said value ascertained as aforesaid. And if, in either case, said cities shall be unable to agree upon the respective proportions to be paid by them of the remainder of the value of said bridge ascertained as aforesaid, and shall be unable to agree in what proportions said bridge shall be maintained by them after said payment of said value to said Bridge Company such respective proportions shall be determined at the request of either city, and after notice to the other and hearing, by the County Commissioners of Penobscot County. When said amounts shall be so determined, the said cities shall pay the same to the said Bridge Company and said bridge shall be maintained by said cities in the proportions determined as aforesaid. ‘Section 5. From and after payment of said value to said Bridge Company said bridge and its approaches shall be a highway and shall be maintained by said cities of Bangor and Brewer in the proportions agreed upon by said cities or determined by said County Commissioners as above provided. ‘Section 6. The County Commissioners of Penobscot County are hereby authorized and directed to proceed forthwith as soon as said value shall be agreed upon or determined as provided by this chapter and the proportionate amount of said value to be paid by said cities shall have been agreed upon by said cities or determined according to the provisions of this chapter, to obtain loan or loans of money for said purpose of paying its portion of the value of said bridge as aforesaid and cause notes or obligations of said county with coupons for interest not exceeding six per cent, to be issued upon such time as they may deem expedient.’ ‘Section 7. This act shall take effect when approved.’” Third. That at the municipal election held in the City of Bangor on the tenth day of March, A. D. 1902, the legal voters of said city voted upon the following question inserted in the warrants issued for such election, viz: “Shall the cities of Bangor and Brewer buy and make free the toll-bridge, the county to pay twelve thousand dollars towards the same, at a price to be determined by appraisal as provided by law.” And the number of “Yes” votes thereon was sixteen hundred and sixty-five, and the number of “No” votes thereon was nine hundred and eleven. Fourth. That a.t the municipal election held in the City of Brewer on the tenth day of March, A. D. 1902, the legal voters of said city voted upon the following question inserted in the warrants issued for such election, viz: “Shall the cities of Bangor and Brewer buy and make free the toll-bridge, the county to pay twelve thousand dollars towards the same, at a price to be determined by appraisal as provided by law.” And the number of “Yes” votes thereon was five hundred and forty, and the number of “No” votes thereon was sixty-five. Fifth. That at the April term of the Supreme Judicial Court for the County of Penobscot the cities of Bangor and Brewer filed their petition under the act recited as aforesaid, addressed to the Chief Justice of said court, who, after notice to said Bridge Company and said County Commissioners, after hearing and within twenty days after the filing of said petition, appointed a committee of three disinterested men, who forthwith organized, and after due notice and hearing proceeded under proper instructions from said court, to the determination of the value of said bridge, property and appurtenances, and in assessing and determining such value said committee did not award anything for franchise. And on the fourth day of November, A. D. 1902, the award of said committee was reported to the Supreme Judicial Court in said Penobscot County, finding the valué of said bridge property and its appurtenances to be Sixty-two Thousand Three Hundred and forty-eight dollars ($62,348) and said award on the twenty-first day of November, A. D. 1902, was confirmed by the said Chief Justice as in said act provided, and then became and ever since has been the judgment of said court of record therein. That under said act, recited aforesaid, it was the duty of the County of Penobscot to pay the sum of Twelve Thousand Dollars ($12,000) to said Bridge Company for its portion of said value, and no more; with a provision, however, that such payment by said county to said Bridge Company is not to be made unless and until said cities shall pay the remainder of said value ascertained as aforesaid. Sixth. That the said cities of Bangor and Brewer were unable to agree upon the respective proportions to be paid by them of the remainder of the value of said bridge ascertained as aforesaid, and were unable to agree in what proportion said bridge should be maintained by them after said payment of said value to said Bridge Company, and thereupon, by reason of said inability so to agree as aforesaid, the City of Brewer, as in said act provided, by its petition dated December 16, 1902, requested the County Commissioners of Penobscot County, after notice to the City of Bangor and hearing, to determine such respective proportion as by said act provided. And after notice to the City of Bangor and hearing thereon on the twenty-sixth day of December, 1902, the said County Commissioners of Penobscot County did, by their report thereof made and recorded on the twenty-seventh day of December, A. D. 1902, determine that after deducting from the aforesaid award of Sixty-two Thousand Three Hundred and Forty-eight dollars ($62,348) aforesaid the sum of Twelve Thousand Dollars ($12,000) so to be paid by the County of Penobscot, the City of Bangor should pay as its proportion of the remainder of said award the sum of Forty Thousand Two Hundred and Seventy-eight Dollars and forty cents ($40,278.40) being four-fifths of such remainder, and the City of Brewer should pay as its proportion one-fifth of such remainder so ascertained, to wit, Ten Thousand and Sixty-nine Dollars and sixty cents ($10,069.60) and said commissioners did then, and as a part of the same record, determine that from and after the payment to said Bangor Bridge Company of the above named sums by said cities of Bangor and Brewer, and Twelve Thous- and Dollars ($12,000) by the said County of Penobscot, that said bridge, its approaches, and all expenses incident to the proper maintenance thereof, should be maintained by the cities of Bangor and Brewer in the proportions above named, to wit, Bangor four-fifths and Brewer one-fifth. Seventh. That on said twenty-seventh day of December, 1902, it became the duty of the cities of Bangor and Brewer to pay the aforesaid amounts to the Bangor Bridge Company, and to assume the maintenance of said bridge as a highway upon the payment of the sum of Twelve Thousand Dollars ($12,000) therefor by the County of Penobscot. But your petitioner avers that greatly to the prejudice of the State, and in violation of their public duties so to be performed by them, said cities have hitherto wholly neglected and refused so to perform the duties imposed upon them by the legislature of Maine. Eighth. That on the fourth day of May, A. D. 1903, demand in writing was made upon the City of Bangor and upon the City of Brewer to forthwith pay to the Bangor Bridge Company the amounts so respectively determined as aforesaid under said act, and both said cities have neglected and refused hitherto so to pay the same. Ninth. That the public safety requires that said bridge be forthwith made safe and convenient for public travel, and that the necessary repairs, renewals and strengthening thereof cannot be made until said cities shall perform their duty aforesaid. Tenth. Wherefore your petitioner respectfully represents that it is now and ever since the twenty-seventh day of December, 1902, has been the duty of the City of Bangor and of the City of Brewer to pay to the Bangor Bridge Company the amounts as determined as aforesaid under said special act to be respectively paid by said cities, and to assume the maintenance of said bridge in the proportions aforesaid upon the further payment to said Bridge Company of the aforesaid sum of Twelve Thousand Dollars ($12,000) by the County Commissioners of Penobscot County, to the end that such bridge and its approaches should be a highway to be thereafterwards maintained by said cities of «Bangor and Brewer in the proportions determined as aforesaid by said County Commissioners. Eleventh. The State of Maine has no legal or other adequate remedy in the premises. Wherefore, the said Attorney General prays that a writ of mandamus may be issued from the Supreme Judicial Court against the said City of Bangor, and the said City of Brewer, commanding them to forthwith pay to the Bangor Bridge Company the sum of Fifty Thousand Three Hundred and Forty-eight Dollars ($50,348) in the following proportions: The City of Bangor Forty Thousand Two Hundred and seventy-eight dollars and forty cents ($40,278.40) and the city of Brewer Ten Thousand and Sixty-nine Dollars and sixty cents ($10,009.00) and to assume the maintenance of the bridge and approaches of the Bangor Bridge Company, upon the payment to said Bangor Bridge Company of the sum of Twelve Thousand Dollars ($12,000) by the County of Penobscot, and to thereafterwards maintain the same in the following proportions: The City of Bangor four-fifths, and the City of Brewer one-fifth, and that a rule of Court be issued commanding said City of Bangor and the said city of Brewer to appear before a justice of said Supreme Judicial Court and show cause, if any they have, why the prayer of this petitioner should not be granted. Geo. M. Seiders, Attorney General for State of Maine. The verification was by the relator’s oath, “that the foregoing petition by him signed is true in substance and in fact.” This action, although in the name of the Attorney General, is for the benefit of the Bridge Company. The Bridge Company has an adequate remedy by action of debt. It cannot use the Attorney General as a figure-head to enforce its private .remedies. Spelling on Ex Eel. § 1626. Although municipal corporations, as public agents, are exempt from suit, except when authorized by statute, yet in this case, if the act of the legislature was valid at all, it expressly authorized the city of Bangor to contract, in reference to this particular subject matter. Assuming the validity of the act, an action would lie against the city for the non-performance of its undertaking, by virtue of the doctrine of authorized contracts, aside from- the action on the award. There is no necessity for the extraordinary remedy of mandamus against municipal corporations in the New England States because a judgment can be enforced and collected without. That is, the property even of private individuals within the city may be seized and sold on execution, to satisfy a judgment legally obtained. These two remedies at law, therefore, not only exist, but are complete. The writ cannot issue, because the mandate must follow the prayer. The prayer of the petition is to compel the City of Bangor to “forthwith pay to the Bangor Bridge Company, etc.” There is neither allegation nor proof that there is any money in the City Treasury, other than that needed for necessary running expenses. And further the case made out by this respondent shows that funds for such payment do not exist. The prayer should be to compel the city to levy a tax. A municipal corporation is not personal. The mandate must be against the proper officers of the city. Where mandamus is asked, the specific legal right sought to be enforced must be clear and unextinguisliable, not doubtful or requiring litigation to settle it. In this case the supposed right is not clear. In support of the claim made by the respondent, City of Bangor, that the title to the bridge became vested in the public, at the expiration of the charter in 1896, counsel cited Police Jury et al. v. Thibodoux Bridge Co., 44 La. 141; State v. Lawrence Bridge Co., 22 Kan. 438; Com. v. Wilkinson, 16 Pick. 175, 26 Am. Dec. 654; Central Bridge Corp. v. Lowell, 15 Gray. 110, 114; Elliott on Roads and Bridges, pp. 33, 36. The defendants agreed to build the bridge, for the convenience of the public, in consideration of the franchise to collect tolls, for a designated number of years. At the termination of the franchise, they were bound to deliver the bridge to the public, “disburdened of tolls.” Craig v. People, 47 Ill. 487; State v. Lake, 8 Nev. 276; Thompson v. Matthews, 2 Ed. Ch. 212. A judgment may be attacked collaterally in mandamus proceedings for collusion or fraud, when the petition goes behind the judgment sought to be enforced. Lawrence Mfg. Co. v. Janesville Cotton Mills, 138 U. S. 562; Ward v. Joslin, 186 U. S. 152; Wilder v. Rio Grande County Commissioners, 41 Fed. Rep. 512; Canal Bank v. Partee, 99 U. S. 325; Howard v. City of Huron, 5 S. Dakota, 539, 26 L. R. A. 493; Brownsville v. Loague, 129 U. S. 493; Gayle v. Owen, 83 Ky. 61; Spelling on Ex Rel. § 1470. Under the doctrine of these cases, the constitutionality of the acts upon which this judgment or award is based, may be attacked. The acts of 1895 and 1901, both of which are set out and referred to in the petition, are special legislation inhibited by Art. IV, § 14, par. 3 of the State Constitution. By these acts the time for taking toll was continued indefinitely. This is equivalent to granting a new charter to the Bridge Company. It will not be contended that this extension was for municipal purposes, or that it was a case where “the objects of the corporation cannot otherwise be attained.” Counsel contended that the act of 1901 amending the act of 1895 is null and void, in contravention of the Constitution of the State. State v. Lawrence Bridge Co., 22 Kan. 438. Upon the expiration of the franchise the easement was still in the public, disburdened of tolls, but otherwise unaffected. Murray v. County Commissioners, 12 Met. 458; State v. Maine, 27 Conn. 641, 71 Am. Dec. 89. Counsel contended that the appraisal made by the committee was illegal, since the whole middle part of the bridge, 219 feet in length had been carried away by a freshet subsequent to a vote in favor of taking the bridge, so that when the appraisal was made, only two ends of the bridge were in existence. It has been held in this State, that when the owner of land with buildings thereon agrees to convey it at a future day, on payment of the purchase money by the purchaser and before payment and conveyance, the buildings are destroyed by fire, without fault of either party, the loss must fall upon the vendor; and if the building formed a material part of the value of the premises, the vendee cannot be compelled to pay the purchase money and take a deed of the land alone. Gould v. Murch, 70 Maine, 288, 35 Am. Pep. 325; Thompson v. Gould, 20 Pick. 134; Wells v. Calnan, 107 Mass. 514, 7 Am. Rep. 65. Counsel urged that the interest of one of the commissioners as a citizen and tax payer of Brewer disqualified him, and that the acts of the board were illegal and void in apportioning the value of the bridge between the two cities; and called attention to the protest entered by Bangor at the hearing before the commissioners. The act of 1895 vested a discretion in the two cities to take the bridge or not at their option. “Where the statute law vests in a corporation, or in its governing body or officers, a discretion in relation to a particular matter, that discretion will not be controlled by mandamus, whether it has been exercised wisely or unwisely.” Thompson on Corporations, § 7829. Counsel further contended that the statutes of 1895 and 1901 are unconstitutional; first, because they authorize the majority of the voters of a town to vote away the money of the minority against their will, for something which they already own; and, second, these acts impose a perpetual tax on the people, entirely inadequate to the consideration received. “ The Constitution gives no authority to raise money to give away.” Perkins v. Milford, 59 Maine, 318.