Hatford v. Mun. Officers of City of Bangor

Decision Date24 January 1907
PartiesHATFORD v. MUNICIPAL OFFICERS OF CITY OF BANGOR.
CourtMaine Supreme Court

Report from Supreme Judicial Court, Penobscot County.

Petition by Laura Hayford, trustee, for writ of certiorari to quash a record of the municipal officers of the city of Bangor. Case reported. Writ denied, and petition dismissed.

Petition for a writ of certiorari to quash a record of the municipal officers of the city of Bangor, wherein are contained the proceedings of the city in taking certain real estate of the plaintiff, in said city, by right of eminent domain for a public library building, under the provisions of Rev. St. c. 4, § 89.

Heard at the October term, 1906, of the Supreme Judicial Court, Penobscot County. At the conclusion of the evidence, the case by agreement was reported to the law court "to be determined upon so much of the evidence as is legally admissible."

The ca se appears in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Charles F. Woodard and Erastus C. Ryder, for plaintiff, E. P. Murray, C. A. Bailey, and T. D. Bailey, for defendant

SPEAR, J. This case involves an application for a writ of certiorari to quash a record of the municipal officers of the city of Bangor, wherein are contained the proceedings of the city, in taking certain real estate of the plaintiff by right of eminent domain for a public library building, in accordance with Rev. St. c. 4, § 89, which reads: "Any city or town containing more than one thousand inhabitants, upon petition in writing signed by at least thirty of its taxpaying citizens, directed to the municipal officers, describing the land to be taken as hereinafter provided, and the names of the owners thereof so far as they are known, at a meeting of such town, or of the mayor, aldermen and council of such city may direct such municipal officers to take suitable lands for public parks, squares or a public library building; and thereupon such officers may take such land for such purposes, but not without consent of the owner, if at the time of filing such petition, with such officers, or in the office of the clerk of such town or city, such land is occupied by a dwelling-house wherein the owner or his family reside."

The grounds upon which the plaintiff claims the writ should be issued are stated as follows:

(1) It is claimed by the plaintiff that the whole premises are not necessary for a library lot; that the amount of land included in the premises is largely in excess of what is reasonably required for a public library building.

(2) It is claimed that part of the premises is not adapted for use as a lot for a public library building, and therefore is not suitable for that purpose.

It does not appear to be alleged or claimed that any defect in the chain of proceedings, required by law for a legal condemnation of the premises in question, is found in the record. In other words, the record discloses that all the proceedings in the taking of the land were regular. The contention of the plaintiff therefore does not seek to assign any errors apparent upon the face of the record.

The issue which she raises in her assignment of errors relate entirely to questions of fact to be determined by evidence outside the records.

But such questions cannot be reached by a writ of certiorari. The writ can only be issued to correct errors in law. The petitioner can present no evidence dehors the record. It is not a writ of right, but one of discretion. If the record offered exhibits errors, it is then within the discretion of the court to admit evidence aliunde the record to show that, even though erroneous, justice and equity do not require that it should be quashed. When such record and such evidence had been produced, it is in the discretion of the court to issue or refuse the writ.

The authorities upon this branch of the case have so recently been considered in Stevens v. County Commissioners, 97 Me. 121, 53 Atl. 985, that we need only to refer to this case as authority for the uniform practice in this state of issuing the writ of certiorari only upon evidence presented by the record itself, and to correct errors in law. These conclusions are decisive of the plaintiff's case, and require that the writ should be denied.

While the case may have been properly decided upon the production of the record only, yet, inasmuch as the plaintiff has presented and fully argued her contention upon the errors assigned, it is the opinion of the court that it may not be improper to briefly allude to the question raised, waiving, arguendo, the fact that the case is concluded by the record.

The Constitution of Maine (article 1, § 21) provides that "private property shall not be taken for public uses without just compensation; nor unless the public exigencies require it." Under this section, three propositions arise with respect to the taking of private property by the right of eminent domain: First, whether the public exigency or necessity requires it; second, whether the taking is for a public use; third, that just compensation must be made. The matter of compensation is not here raised. The first, so far as we are aware, is held to involve a legislative question, and is not open to judicial revision. The second is a judicial question, and may be reviewed by...

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    ...publication. 3. Thus the State may take land for the construction of library facilities. E.g., Hayford v. Municipal Officers of City of Bangor, 102 Me. 340, 66 A. 731, 11 L.R.A.,N.S., 940; Laird v. Pittsburg, 205 Pa. 1, 54 A. 324, 61 L.R.A. 332. 4. Thus many state universities have professi......
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