State v. City. of Bangor

• Decision Date: 14 November 1903
• Citation: 98 Me. 114,56 A. 589
• Parties: STATE ex rel. SEIDERS, Atty. Gen. v. CITY. OF BANGOR et al.
• Court: Maine Supreme Court

56 A. 589

98 Me. 114

STATE ex rel. SEIDERS, Atty. Gen.

v. CITY. OF BANGOR et al.

Supreme Judicial Court of Maine.

Nov. 14, 1903.

(Official.)

Report from Supreme Judicial Court, Penobscot County.

Petition by the state, on the relation of George M. Seiders, attorney general, for writ of mandamus to the city of Bangor and the city of Brewer. Case reported. Writ to issue as prayed for.

It was agreed by the parties at the argument of the cause before this court in banc that the petition and answers should be regarded as the alternative writ and return.

The petition was as follows:

"To the Honorable William Penn Whitebouse, Justice of the Supreme Judicial Court: "And now comes George M. Seiders, attorney general for the state of Maine, in bis proper person, and by virtue of bis office and in behalf of said state, and respectfully represents:

"First. That on the 13th day of March, A. D. 1901, and for a long time prior thereto, the Bangor Bridge Company, a corporation duly created and organized under the laws of the state of Maine, was, and ever since has been, and now is, maintaining a toll bridge with its approaches between the cities of Bangor and Brewer across the Penobscot river, and that during said time there has been and now is no highway between said cities.

"Second. That by chapter 360 of the Private and Special Laws of Maine for the year 1901, approved March 13, 1901, and now in force, the following provision was made by the Legislature, to the end that the said bridge and its approaches might be a public highway, to wit:

"'Section 1. Chapter two hundred and eight of the Private and Special Laws of one thousand eight hundred and ninety-five is hereby amended so that said chapter, as amended, shall read as follows:

"'"Section 1. The cities of Bangor and Brewer, or either of them, with the assistance of the county of Penobscot as hereinafter provided, are authorized to take and purchase the bridge, property and appurtenances of the Bangor Bridge Company, on the payment to said company of such sum as may be agreed upon; or as may be found as the value of said bridge, property and appurtenances, by a committee of three disinterested men, to be appointed by the chief justice of the Supreme Judicial Court, the award of a majority of whom shall be reported to the Supreme Judicial Court, in Penobscot county, in term time or in vacation, and the said chief justice may confirm the same or recommit it for the correction of errors, if justice so requires. The award of the committee shall be conclusive as to the amount.

"'"Sec. 2. The said cities of Bangor and

Brewer may at any time file a petition in the clerk's office of the Supreme Judicial Court for said county of Penobscot, in term time or in vacation, addressed to the said chief justice of said court, who, after notice to said bridge company and said county commissioners, shall after hearing and within twenty days after the filing of said petition, appoint said committee, who shall forthwith organize, and after due notice and hearing proceed under proper instruction from said court, to the determination of the value of said bridge, property and appurtenances. In assessing and determining the value, the committee shall not award anything for franchise.

"'"Sec. 3. Until this value shall be agreed upon, or determined as aforesaid, and the amount thereof shall be paid to said bridge company, the right to take tolls as established by chapter three hundred and twenty-five of the laws of eighteen hundred and forty-six, and not exceeding the rates now charged shall be continued subject, however, to legislative regulation, as provided in said chapter.

"'"Sec. 4. If the cities of Bangor and Brewer and the county commissioners of Penobscot county shall jointly agree with said bridge company upon said value, or if said value be determined as aforesaid, the said county commissioners are hereby directed and authorized to cause forthwith to be paid to said bridge company from the treasury of the county of Penobscot and of the moneys of said county a sum equal to one-half of the value of said bridge ascertained in either of the above named ways: provided, however, that if said one-half of said value shall exceed the sum of twelve thousand dollars, said county of Penobscot shall pay said sum of twelve thousand dollars, to said bridge company for its portion of said value and no more: provided further, that such payment by said county to said bridge company shall not be made unless and until said cities shall pay the remainder of said value ascertained as aforesaid. And if, in either case, said cities shall be unable to agree upon the respective proportions to be paid by them of the remainder of the value of said bridge ascertained as aforesaid, and shall be unable to agree in what proportions said bridge shall be maintained by them after said payment of said value to said bridge company such respective proportions shall be determined at the request of either city, and after notice to the other and hearing, by the county commissioners of Penobscot county. When said amounts shall be so determined, the said cities shall pay the same to the said bridge company and said bridge shall be maintained by said cities in the proportions determined as aforesaid.

"'"Sec. 5. Prom and after payment of said value to said bridge company said bridge and its approaches shall be a highway and shall be maintained by said cities of Bangor and Brewer in the proportions agreed upon by said cities or determined by said county commissioners as above provided.

"'"Sec. 6. The county commissioners of Penobscot county are hereby authorized and directed to proceed forthwith as soon as said value shall be agreed upon or determined as provided by this chapter and the proportionate amount of said value to be paid by said cities shall have been agreed upon by said cities or determined according to the provisions of this chapter, to obtain loan or loans of money for said purpose of paying its portion of the value of said bridge as aforesaid and cause notes or obligations of said county with coupons for interest not exceeding six per cent., to be issued upon such time as they may deem expedient.

"'"Sec. 7. This act shall take effect when approved."'

"Third. That at the municipal election held in the city of Bangor on the 10th day of March, A. D. 1902, the legal voters of said city voted upon the following question inserted in the warrants issued for such election, viz.:

"'Shall the cities of Bangor and Brewer buy and make free the toll bridge, the county to pay twelve thousand dollars towards the same, at a price to be determined by appraisal as provided by law?'

"And the number of 'Yes' votes thereon was sixteen hundred and sixty-five, and the number of 'No' votes thereon was nine hundred and eleven.

"Fourth. That at the municipal election held in the city of Brewer on the 10th day of March, A. D. 1902, the legal voters of said city voted upon the following question inserted in the warrants issued for such election, viz.:

"'Shall the cities of Bangor and Brewer buy and make free the toll bridge, the county to pay twelve thousand dollars towards the same, at a price to be determined by appraisal as provided by law?'

"And the number of 'Yes' votes thereon was five hundred and forty, and the number of 'No* votes thereon was sixty-five.

"Fifth. That at the April term of the Supreme Judicial Court for the county of Penobscot the cities of Bangor and Brewer filed their petition under the act recited as aforesaid, addressed to the chief justice of said court, who, after notice to said bridge company and said county commissioners, after hearing, and within twenty days after the filing of said petition, appointed a committee of three disinterested men, who forthwith organized, and after due notice and hearing proceeded under proper instructions from said court to the determination of the value of said bridge, property, and appurtenances, and in assessing and determining such value said committee did not award anything for franchise. And on the 4th day of November, A. D. 1902, the award of said committee was reported to the Supreme Judicial Court in said Penobscot county, finding the value of said bridge property and its appurtenances to be sixty-two thousand three hundred and forty-eight dollars ($02,348), and said award, on the 21st day of November, A. D. 1902, was confirmed by the said chief justice as in said act provided, and then became, and ever since has been, the judgment of said court of record therein.

"That under said act recited aforesaid it was the duty of the county of Penobscot to pay the sum of twelve thousand dollars ($12,000) to said bridge company for its portion of said value, and no more; with a provision, however, that such payment by said county to said bridge company is not to be made unless and until said cities shall pay the remainder of said value ascertained as aforesaid.

"Sixth. That the said cities of Bangor and Brewer were unable to agree upon the respective proportions to be paid by them of the remainder of the value of said bridge ascertained as aforesaid, and were unable to agree in what proportion said bridge should be maintained by them after said payment of said value to said bridge company, and thereupon, by reason of said inability so to agree as aforesaid, the city of Brewer, as in said act provided, by its petition dated December 16, 1902, requested the county commissioners of Penobscot county, after notice to the city of Bangor and hearing, to determine such respective proportion as by said act provided. And after notice to the city of Bangor, and hearing thereon on the 26th day of December, 1902, the said county commissioners of Penobscot county did, by their report thereof made and recorded on the 27th day of December, A. D. 1902, determine that, after deducting from the aforesaid award of sixty-two thousand three hundred and forty-eight dollars ($6...