Buck v. Town of Yarmouth

• Decision Date: 21 June 1979
• Citation: 402 A.2d 860
• Parties: John T. BUCK et al. v. TOWN OF YARMOUTH. 1
• Court: Maine Supreme Court

Page 860

402 A.2d 860

John T. BUCK et al. v. TOWN OF YARMOUTH. ¹

Supreme Judicial Court of Maine.

June 21, 1979.

Nixon & Corson by David J. Corson (orally), Yarmouth, for plaintiffs.

Bernstein, Shur, Sawyer & Nelson by F. Paul Frinsko (orally), Portland, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, NICHOLS and GODFREY, JJ.

McKUSICK, Chief Justice.

The three plaintiffs, residents and voters of the Town of Yarmouth, appeal from the Superior Court's dismissal of their action for a court order directing compliance with a petition submitted to the municipal officers pursuant to 30 M.R.S.A. § 2053 (1964). ² The petition requested that an article calling for the voters of the town to reconsider their decision to appropriate a substantial sum for the construction of a recreation center be inserted in the next warrant for a town meeting or that a special meeting be called within 60 days to consider rescission of the appropriation. Because we find that the Superior Court correctly ruled that these plaintiffs lack standing to pursue this action, we deny the appeal.

In a general election held on November 7, 1978, the voters of the Town of Yarmouth approved the funding and construction of a recreation center. On November 27, 1978, less than three weeks later, the town clerk was presented with a petition signed by 372 registered voters, ³ which stated:

"We, the undersigned, being registered voters in the Town of Yarmouth, Maine hereby petition the Municipal Officers of said Town in accordance with Title 30 Maine Revised Statutes Section 2053 for an article in the next warrant issued or for the calling within 60 days of a special Town Meeting to consider whether or not to rescind the appropriation of a sum not exceeding one million four hundred thousand dollars ($1,400,000) for the purpose of designing, constructing and equipping a Yarmouth Community Recreation Center which was voted at the last gubernatorial election as Referendum Question # 1 on November 7, 1978."

By a unanimous vote on December 14, 1978, the Yarmouth town council ⁴ refused to take the action sought by the petition, concluding that "it is unreasonable to call another town meeting pursuant to the aforementioned petition." On the following day, these plaintiffs, who we assume had signed the petition, filed a complaint in Superior Court requesting a court order directing the town to comply with the "mandatory procedure" of 30 M.R.S.A. § 2053 by placing the article in the next warrant to issue or by calling a special town meeting to consider rescission of the town's approval of the recreation center. Plaintiffs now appeal from the Superior Court order dismissing their complaint.

In holding that plaintiffs lacked standing to maintain this action, the Superior Court noted that plaintiffs had failed to allege "special injury different from that incurred by any other voter," and cited Von Tiling v. City of Portland, Me., 268 A.2d 888, 890 (1970), and Manduca v. Town of Old Orchard Beach, York County Civil Docket No. 75-148 (Me.Super.Ct.1975) (Wernick, J.), for the proposition that "(a)bsent such an allegation, this action must be dismissed . . . ." Plaintiffs' complaint in the case at bar was properly dismissed.

From the earliest days of Maine's statehood, this court has recognized and applied the general rule at common law that

"A private individual can apply for this remedy (against allegedly illegal action or inaction by public officials) only in those cases, where he has some private or particular interest to be subserved, or some particular right to be pursued or protected . . ., independent of that which he holds in common with the public at large; and it is for the public officers, exclusively to apply, when public rights are to be subserved." Sanger v. County Comm'rs of Kennebec, 25 Me. 291, 296 (1845).

See also Robbins v. Bangor Ry. & Elec. Co., 100 Me. 496, 503, 62 A. 136, 139 (1905) (mandamus "does not lie at the suit of an individual . . . (unless) his personal and particular rights have been invaded beyond those that he enjoys as a part of the public, and that are common to everyone"). As this court stated in Weeks v. Smith, 81 Me. 538, 544, 18 A. 325, 326 (1889), when "the common right is invaded it is a public grievance, and the remedy must be asked in behalf of the public, and by the proper officer, who is required by law to prosecute in the state's behalf." Thus, by first principles an individual citizen who suffers no particularized injury from a public wrong cannot seek relief from the courts; relief vindicating public rights must be sought by the "proper officer," I. e., the Attorney General of the State of Maine.

By statute and case law, however, exceptions have been carved out of those basic principles limiting the private citizen's right to sue on public wrongs. See the historical review in Cohen v. Ketchum, Me., 344 A.2d 387, 390-93 (1975), and Blodgett v. School Administrative Dist. No. 73, Me., 289 A.2d 407, 409-13 (1972). First, in 1864 the predecessor of present 14 M.R.S.A. § 6051(12) (1964), the "ten taxpayers statute," gave standing to ten taxable inhabitants to seek relief against a specific type of public wrong, namely, the unauthorized or illegal expenditure of public funds. However, the ten taxpayers statute, now subsection (12), gave such plaintiffs standing only to seek preventive relief, as by a restraining order against the proposed public expenditure, rather than remedial relief for a wrong that has already occurred. P.L. 1864, ch. 239, § 1; Bayley v. Town of Wells, 133 Me. 141, 174 A. 459 (1934).

Second, in 1874 the predecessor of present 14 M.R.S.A. § 6051(13) (1964) was enacted giving comprehensive equity jurisdiction to our court of general trial jurisdiction, now the Superior Court. P.L.1874, ch. 175. That "full equity jurisdiction" is to be exercised "according to the usage and practice of courts of equity," in cases "where there is not a plain, adequate and complete remedy at law." Id. In a series of cases from Eaton v. Thayer, 124 Me. 311, 128 A. 475 (1925), through Cohen v. Ketchum, supra, this court has declared that this general equity jurisdiction statute, subsection (13), gives standing to any private individual, regardless of particularized injury, to seek Preventive relief against a threatened public wrong, without limitation to the required ten taxpayers or to the particular financial acts specified in subsection (12). This standing to vindicate a common right, even though the plaintiff suffers no special injury, flowing as it does from the general equity statute, is subject to the usual restrictions upon obtaining equitable relief. Tuscan v. Smith, 130 Me. 36, 153 A. 289 (1931). This court has time and again emphasized that the grant of standing implied in subsection (13) is restricted to an application for preventive or injunctive-type relief and that a citizen does not have "the right to apply for remedial relief after the commission of an illegal act, where the act is one which affects the entire community and not specifically the individual bringing the bill." Id. at 44, 153 A. at 293. See Heald v. School Administrative Dist. No. 74, Me., 387 A.2d 1 (1978).

In the case at bar, plaintiffs allege no particularized injury suffered by them as a result of the town council's refusal to insert the submitted article in the next warrant to issue or to call a special town meeting within 60 days. The council's refusal to comply with plaintiffs' request affects all voters of the Town of Yarmouth alike. ⁵

Nor can the relief requested by plaintiffs be fairly characterized as "preventive" rather than "remedial." The wrong of which plaintiffs complain the town council's refusal to comply with 30 M.R.S.A. § 2053 is confined to a single act taken at a single time in the past. There is no indication that the council contemplates any future action on plaintiffs' petition that the court is called upon to prevent.

Accordingly, the facts of the present case place it squarely within the rule that plaintiffs who suffer no particularized injury cannot seek remedial relief for an alleged public wrong. Plaintiffs urge us here to depart from that clear rule on three grounds. They argue (1) that section 2053 directs the Yarmouth town council to perform a purely ministerial act, and that the general standing rule applies only to discretionary actions; (2) that application of the general standing rule would defeat the legislature's primary aim in enacting 30 M.R.S.A. § 2053; and (3) that section 2053 constitutes a statutory grant of standing to the signers of a petition submitted pursuant to that section if the signers are voters and are equal in number "to at least 10% Of the number of votes cast in the town at the last gubernatorial election."

We find no merit in these contentions. Even accepting Arguendo the questionable proposition that the action to be taken by the municipal officers under section 2053 is purely "ministerial," plaintiffs cite no case to support the asserted proposition that the application of the general standing rule depends on whether the act the municipal body has failed to perform is ministerial or discretionary. Indeed, in logic no basis exists for such a distinction. As stated in Bayley v. Town of Wells, supra, 133 Me. at 145, 174 A. at 461, the rule that "(i)ndividual taxpayers of a municipal corporation have not ordinarily the right to sue for remedial relief, where the wrong, for which they seek redress, is one which affects the entire community and not specifically those bringing the action . . . has its origin in sound public policy, which holds that municipal officers should not be subjected to litigation at the suit of every dissatisfied taxpayer." Interjecting the Attorney General between dissatisfied citizens and the municipality assures that the municipality will not be subjected to a "multiplicity of suits." Eaton v. Thayer, supra, ...