Appeal of Cole from the Decree of County Comm'rs.

• Court: Supreme Judicial Court of Maine (US)
• Writing for the Court: LIBBEY, J.
• Citation: 7 A. 397,78 Me. 532
• Decision Date: 31 December 1886
• Parties: Appeal of COLE and others from the Decree of County Commissioners.

7 A. 397
78 Me. 532

Appeal of COLE and others from the Decree of County Commissioners.¹

Supreme Judicial Court of Maine.

December 31, 1886.

On exceptions by remonstrants from supreme judicial court, Cumberland county.

The opinion states the facts.

Nathan & Henry B. Cleaves, Drummond & Drummond, and F, H. Harford, for appellants. G. W. Goddard, for Stephen J. Young and divers other remonstrants from 10 towns. Joseph W. Symonds, for City of Portland.

George E. Bird, for Proprietors Portland Pier.

A. A. Strout, for Portland & Cape Elizabeth Steamferry Co.

LIBBEY, J. The proceedings in this case were had by virtue of the act of 1873, (chapter 375,) as modified by act of 1885, (chapter 495.) The act of 1873 reads as follows:

"Section 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.

"Sec. 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 tidewaters 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

7 A. 398

upon said ferry route, and its continuous operations 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 necessity 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 was 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 tiled by the remonstrants to the acceptance and confirmation of the report, but four only are relied upon, and need be considered.

1. 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 power to act but once under it; and that their power was exhausted by their adverse action on the petition of David...