Libby v. City of Portland

• Decision Date: 17 May 1909
• Citation: 105 Me. 370,74 A. 805
• Parties: LIBBY v. CITY OF PORTLAND.
• Court: Maine Supreme Court

74 A. 805

105 Me. 370

LIBBY

v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

May 17, 1909.

(Official.)

Exceptions from Supreme Judicial Court, Cumberland County.

Action by William F. Libby against the City of Portland to recover for personal injuries through the alleged defective condition of a basement step of a city building.Demurrers to each count of the writ were overruled, and defendant excepted.Exceptions overruled.

Argued before WHITEHOUSE, SAVAGE, CORNISH, KING, and BIRD, JJ.

William Lyons, for plaintiff.John T. Fagan and Clarence W. Peabody, for defendant.

CORNISH, J. Action on the case for personal injuries alleged to have been sustained by the plaintiff by reason of the defective condition of the basement step of a building belonging to the defendant.The writ contains two counts.A general demurrer was filed to each count.The presiding justice overruled both demurrers and the defendant alleged exceptions.If either count sets forth a cause of action, the exceptions must be overruled.

The first count alleges in substance that the defendant was the lawful owner and in the lawful possession, control, and management of a certain farm with the buildings thereon which it was operating in the usual method of husbandry, and that "all of said buildings, land, and other property were then and there used by the said defendant for its own emolument, profit, and advantage."It nowhere alleges or even intimates that this was a poor farm, and that the building, where the injury was received, was a city almshouse.The second count is based squarely on the allegation of an almshouse, in the maintenance of which negligence is charged.It is necessary to consider the allegations of the first count alone, the objection to which, on the part of the defendant, is that the alleged negligence appears to have resulted from the performance of ultra vires acts by the city, and that the city cannot be held liable in the performance of such acts.This leads us to a brief consideration of the rights, powers, duties, and liabilities of municipal corporations in this state.

In the absence of any special rights conferred or liabilities imposed by legislative charter, towns and cities act in a dual capacity, the one corporate, the other governmental.To the former belongs the performance of acts done in what may be called their private character, in the management of property or rights held voluntarily for their own immediate profit and advantage as a corporation, although ultimately inuring to the benefit of the public, such as the ownership and management of real estate, the making of contracts, and the right to sue and be sued; to the latter belong the discharge of duties imposed upon them by the Legislature for the public benefit, such as the support of the poor, the maintenance of schools, the construction and maintenance of highways and bridges, and the assessment and collection of taxes.This distinction is sharply defined in a long liue of decisions of which it is necessary to cite only the following: Eastman v. Meredith, 36 N. H. 234, 72 Am. Dec. 302;Oliver v. Worcester, 102 Mass. 489, 3 Am. Dec. 485;Small v. Danville, 51 Me. 359;Bryant v. Westbrook, 86 Me. 450, 29 Atl. 1109.The Revised Statutes recognize this twofold character;chapter 4, § 1, making the inhabitants of each town a body corporate, and chapter 1, § 1, making towns a subdivision of the state.

The precise question is whether the city of Portland acting in its corporate capacity could lawfully own, control, and manage a farmhouse within its limits, disconnected from any public use, and for its own emolument, profit, and advantage.

1.It may be conceded that a city or town would not have the right to raise money by taxation for the purchase of such a farm any more than for the establishment of manufactories (Opinion of Justices, 58 Me. 590), or for the erection of buildings for the purpose of renting them as stores, or banks, or halls (French v. Quincy, 3 Allen [Mass.] 9).

But it does not follow that a city or town might not be the lawful and legal owner of a farm or of a block of rentable buildings, and might not as such owner maintain the same for its own pecuniary advantage.

Suppose, by way of illustration, that the municipal officers of a town bid in, in behalf of the town, real estate sold for nonpayment of taxes, as they are authorized to do by Rev. St. c. 10, § 85.It is clearly the purpose of the statute that the title shall vest in the town, if the statutory proceedings have been complied with and the property is not redeemed by the owner.Such vesting of title confers upon the town all the ordinary incidents of lawful ownership, among which is the right to use and utilize.Must the town, although the lawful owner, yet because it is a town, let the property, if land, lie fallow, or if buildings, remain vacant and unrented?Such a hollow result cannot be the purpose of the statute.

Suppose, again, that some benefactor should convey by deed or devise by will such real estate to the town as a gift, would not the title vest, and would not the town be authorized to manage and maintain the property for profit until some other disposition of it might be deemed advisable?Gifts of real, estate should stand on no different basis than gifts of money, and certainly the treasury would be lawfully enriched by such benefactions, in either form.

The authorities so hold.Dillon on Municipal Corp. vol. 2, § 566, states the principle thus: "Municipal and public corporations may be the objects of public and private bounty.This is reasonable and just.They are, in law, clothed with the power of individuality.They are placed by law under various obligations and duties.Burdens of a peculiar character rest upon compact populations residing within restricted and narrow limits, to meet which, property and revenues are absolutely necessary, and therefore legacies of personal property, devises of real property, and grants or gifts of either species of property directly to the corporation for its own use and benefit, intended to and which have the effect to ease it of its obligations or lighten the burdens of its citizens, are, in the absence of disabling or restraining statutes, valid in law."

There is no such disabling statute in this state, but, on the contrary, cities and towns are expressly authorized to receive and carry out the terms of conditional gifts (Rev. St. c. 4, §§ 80, 81), and of trust funds (Rev. St. c. 4, §§ 82-85).The necessity of express action on the part of the municipality in fulfilling the conditions of such gifts and trusts rendered necessary the passage of an enabling statute.But, in the absence of any prohibiting statute, such municipality in its corporate capacity may receive and hold gifts of either real or personal estate.2 Abbott, Mun. Corp. § 720, while questioning the doctrine as an academic proposition, admits it to be the law of the decisions.

Worcester v. Eaton, 13 Mass. 371, 7 Am. Dec. 155, was a real action based upon a deed of real estate to the town in consideration that the grantor should be supported during her natural life, and the point was raised in defense that the town could not take the premises as grantees.In overruling this defense the court say: "With respect to the capacity of the demandants to take by purchase and to hold real estate, we cannot deny to towns such right, since, by the immemorial usage of the country, it appears to have been an incident to their corporate powers.As early as the year 1679, provision was made by a colonial act respecting lands, woods, etc., owned by towns in their corporate capacity; and authority was given to the inhabitants, by vote of the major part, to dispose of the same by grant of lots for settlement, and it is well known that many towns, at this day, are owners of real estate, which they hold in their corporate capacity, other than such as may be necessary to erect schoolhouses and other public buildings upon.Whether the inhabitants of a town can be assessed to raise money for the purchase of lands, to be used for any other purpose than the execution of some lawful requisition, is a different question.But there seems to be no reason why there may not be a gift or a devise to the inhabitants."

This case has been cited with approval in Oliver v. Worcester, 102 Mass. 489. 3 Am. Rep. 485, andCommonwealth v. Wilder, 127 Mass. 1, the court affirming in the last case that "there is no provision in the statute forbidding towns to hold real estate for any particular purposes."

New Shoreham v. Ball, 14 R. I. 566, was an action of ejectment, the plaintiff town in proof of title adducing evidence of possession for more than 20 years.The defendant contended that the town could not acquire title by possession for any other than municipal purposes, but the court, speaking through Chief Justice Durfee, held otherwise, in these words: "The cases cited in support of the exceptions do not go to the point that a town cannot acquire land by...