Begin v. Inhabitants of Town of Sabattus

• Citation: 409 A.2d 1269
• Parties: Gerard BEGIN et al. v. INHABITANTS OF the TOWN OF SABATTUS et al.
• Decision Date: 28 December 1979
• Court: Supreme Judicial Court of Maine (US)

Page 1269

409 A.2d 1269

Gerard BEGIN et al. v. INHABITANTS OF the TOWN OF SABATTUS et al.

Supreme Judicial Court of Maine.

Dec. 28, 1979.

Isaacson, Isaacson & Hark, by Robert S. Hark, Lewiston (orally), for plaintiffs.

Orestis & Garcia, P. A., by Frederick H. Greene, III (orally), John Orestis, Lewiston, for defendants.

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

POMEROY, Justice.

This is an appeal from an order of the Superior Court entering judgment for the defendants on both counts of a two-count complaint. The first count alleged the illegality under state law and under several constitutional principles of that portion of the "Mobile Home Park Ordinance of the Town of Sabattus " which limited to four the number of construction permits which could be issued each year per park developer and per mobile home park. That count demanded a judgment requiring the issuance of the permit applied for. The second count realleged the illegality of the ordinance and requested that the Court preliminarily and permanently enjoin the defendants from enforcing the provisions of the ordinance on which the denial of the permits was premised. Although plaintiff allegedly presents eleven issues for review, those fully briefed and argued on appeal can be summarized as follows:

(1) As a preliminary matter, what was the basis of the Superior Court's decision and what issues are properly before this court for review?

(2) Did the Town of Sabattus have authority to promulgate the ordinance in question?

(3) Is the ordinance unconstitutional as a violation of the equal protection clauses of the Constitutions of the State of Maine and of the United States?

(4) Is the ordinance unconstitutional as a violation of the due process clauses of the Constitutions of the State of Maine and of the United States?

We sustain the appeal.

The arguments of the parties evidence considerable confusion as to the basis of the Superior Court's opinion. For example, defendant contends that by announcing judgment for the defendant on Count I of the complaint, the Justice below necessarily found the ordinance constitutional. This is not so. All that judgment indicates is that the Court was denying plaintiff's request that the defendant Town be ordered to issue him a permit. Upon careful analysis it is clear that the Court never reached the legal questions of the validity of the Mobile Home Park Ordinance, because it found plaintiff estopped to raise those issues. The Court found, Inter alia that:

Plaintiff in making application agreed to be bound by and comply with the pertinent ordinances, regulations and statutes as they appeared to apply to his proposed mobile home park . . . .

He was granted permission, with conditions and restrictions . . . .

He now says they are onerous and costly . . . as well as unconstitutional . . . .

He could have taken appropriate legal steps at the beginning to determine the correctness or incorrectness of the ordinances and regulations . . . .

The Court cited no authority for this application of the principle of estoppel; but it is one for which ample authority exists. The principle is concisely stated at 16 Am.Jur. § 135: "It is well settled that one who voluntarily proceeds under a statute and claims benefits thereby conferred will not be heard to question its constitutionality in order to avoid its burdens." We find that it was error of law for the Justice to apply that principle in the circumstances of this case, for the reasons set forth below.

First, we note that this principle, as stated, applies only to challenges to the constitutionality of the statute, and not to challenges to its invalidity for other reasons. In this case, plaintiff also alleged that the ordinance was illegal because not authorized under Maine Home Rule powers granted by 30 M.R.S.A. § 1917. In order to find plaintiff estopped to present that claim, the Superior Court could not have relied on the above-quoted principle, but must have relied on the broader doctrine of "Equitable estoppel " or "Estoppel in pais " from which it was derived. See Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961). One authority suggests that, in the context of estoppel to raise the illegality of a statute for constitutional or other reasons, the doctrine is more precisely termed "Quasi estoppel " which includes the doctrine of "Election ": "The principle which precludes a party from asserting to another's disadvantage a right inconsistent with a position previously asserted by him." 28 Am.Jur.2d § 29. As an equitable doctrine, therefore, its purpose is to further the ends of justice. As such, its invocation must depend on the circumstances of the individual case.

We now determine that equity is not furthered by estopping a party to challenge a municipal ordinance as void because unauthorized by the home rule powers, simply because that party has previously, or even in the same proceeding, complied with or proceeded under that statute. This position is consistent with the position in our liberalized rules of pleading under Rule 8, M.R.Civ.P. which provides in subsection (a)(2) that: " . . . (r)Elief in the alternative or of several different types may be demanded ", and in subsection (e)(2) " . . . (a) Party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both. . . . " More importantly, there is a strong public policy interest in avoiding the promulgation, implementation, and enforcement of ordinances by a municipality, which assume powers it is not authorized to exercise. A municipality which exercises unauthorized power works an inequity on its citizens and should not be allowed to estop a non-frivolous challenge to an ordinance made on the ground of lack of authority. This interest overrides any inequity in allowing one who has arguably received some benefit from the municipality under that statute from subsequently challenging it. Therefore, the Justice below erred in not considering on its merits plaintiff's challenge to the municipal ordinance in question on the grounds that the Town of Sabattus lacked the authority to promulgate it.

With respect to the constitutional questions raised, the principle of estoppel was refined into the principle applied and articulated by the United States Supreme Court in United States Fuel Gas Co. v. Railroad Commission, 278 U.S. 300, 307-308, 49 S.Ct. 150, 152, 73 L.Ed. 390, 395 (1929):

It is the rule of this Court, consistently applied, that one who has invoked action by state courts or authorities under state statutes may not later, when dissatisfied with the result, assail their action on the theory that the statutes under which the action was taken offend against the Constitution of the United States. (citations omitted)

That decision applied the same principle to challenges in the federal courts to state statutes as unconstitutional under state constitutions. The rule was apparently meant to settle the equity question in favor of estoppel in all situations to which it applied. It is adhered to by most state courts as well.

There are, however, numerous exceptions to the general rule. For example, if compliance with the statute under attack was under compulsion, E. g., "Under pressure of severe statutory penalties or to avoid disastrous effects to business ", then the compliance is deemed "Involuntary " and one will not be estopped to challenge it in subsequent proceedings. People v. Arthur Morgan Trucking Co., 16 Ill.2d 313, 157 N.E.2d 41, 43 (1959). See, e. g., Donoho v. O'Connell's, Inc., 18 Ill.2d 432, 164 N.E.2d 52 (1960); Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, Inc., 245 So.2d 625 (Fla.1971). Another exception generally applied is that "An estoppel by acceptance of benefits does not preclude an attack upon a separable portion of the statute, although one of the conditions attached to the benefits conferred is thereby avoided." 16 Am.Jur.2d § 136. E. g., State ex rel. Johnson v. Consumers Public Power District, 143 Neb. 753, 10 N.W.2d 784 (1943); Terry v. Thornton, 207 Ark. 1019, 183 S.W.2d 787 (1944). Similarly, an attack not upon the whole statute, but upon the constitutionality of the statute as applied, may be determined in the same action in which one takes an appeal under that statute. Vartelas v. Water Resources Commission, 146 Conn. 650, 153 A.2d 822 (1959). There are also some variations on these exceptions specifically applicable to constitutional challenges to licensing and permit legislation. See generally, 65 A.L.R.2d 660.

In addition to frequently invoking these exceptions, courts have otherwise avoided application of the general rule, such that the validity of the principle has been generally questioned in recent years. In some cases courts have simply returned to the underlying concept of the rule, balanced the equities in the individual case, and come down in favor of reaching the constitutional issue. For example, in Ruth v. Industrial Commission, 107 Ariz. 572, 490 P.2d 828, 830 (1971) the Supreme Court of Arizona reasoned:

This (estoppel principle), However, is not a rule requiring unconditional adherence. The court undoubtedly has the power to decide the case under these circumstances and will exercise that power where considered appropriate.

In Surmeli v. State, 412 F.Supp. 394 (S.D.N.Y., 1976) Aff'd mem., 2 Cir., 556 F.2d 560 Cert. den. 436 U.S. 903, 98 S.Ct. 2230, 56 L.Ed.2d 400 (1978), the District Court questioned the principle of estoppel to raise constitutional questions. In that case, a group of alien physicians, who had obtained licenses to practice medicine only upon filing declarations of intent to become citizens within ten years and who were in imminent danger of losing those licenses, brought a declaratory judgment action challenging the constitutionality of the provision providing for relocation upon...