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

• Decision Date: 31 December 1886
• Citation: 7 A. 397,78 Me. 532
• Parties: Appeal of COLE and others from the Decree of County Commissioners.
• Court: Maine Supreme Court

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 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 Keaser and others in 1873. We think this objection cannot prevail. The petition of Keaser and others did not describe the way to be located in any manner, and therefore gave the county commissioners no jurisdiction to act under the statute. Rev. St. c. 18, § 1. Their action upon that petition was void. But we are of opinion that the act of 1873 should receive a broader construction than that claimed for it by the learned counsel for the respondents. Before its passage the county commissioners had no power to locate a public highway in the city of Portland, nor could they locate one into tidewaters. The act of 1873 removed both of these limitations upon their jurisdiction, and in these respects enlarged it, to be exercised "in like manner and effect as in locating other highways in said county." Under the general statute giving them the power to locate other high ways in said county, the only limitation upon their jurisdiction is that, if their decision is against the prayer of the petition, no new petition shall be entertained for one year thereafter. Rev. St. c. 18, § 45. The doctrine of res adjudicata does not apply to the action of county commissioners in the location of highways. The facts and situation may be such as to require them to refuse to locate on one petition, when such change may take place in the wants and necessities of the public as to require the location a year or two thereafter.

2. It is contended that there is no appeal given by the law from the judgment of the county...