State v. City of Portland

• Decision Date: 04 January 1883
• Citation: 74 Me. 268
• Parties: STATE OF MAINE v. CITY OF PORTLAND.
• Court: Maine Supreme Court

74 Me. 268

STATE OF MAINE v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

January 4, 1883

ON EXCEPTIONS from superior court.

(Indictment.)

" The grand jurors for said state, upon their oath, present that the city of Portland, a municipal corporation in the county of Cumberland, on the first day of May, in the year of our Lord one thousand eight hundred and eighty-one, and on divers other days and times between that day and the day of the finding of this indictment at Portland aforesaid, in the county of Cumberland aforesaid, near to a certain public street and common highway known as Commercial street and near to the dwelling-houses, stores and tenements of divers citizens of said state there situate, unlawfully and injuriously did collect and did cause and suffer to be collected, and to remain large quantities, to wit: three hundred cubic yards of offal, dung, manure, dirt, excrement filth and scrapings, and outflowings from the wharves, gutters, streets and sewers in said city of Portland, by reason of which said collecting and causing, and suffering to be collected and to remain, of said large quantities of offal, dung, manure dirt, excrement, filth and scrapings, and outflowings from said wharves, gutters, streets and sewers, divers fetid noisome, hurtful, pernicious and unwholesome smells and exhalations, on said first day of May and on said divers other days and times, there did and still do arise and proceed, whereby the air then and on said divers other days and times there was and still is corrupted and the health of the citizens of said state there inhabiting, residing and passing, have been and still are endangered and impaired, to the prejudice, damage and common nuisance of all good citizens of said state there inhabiting, residing and passing, against the peace of said state, and contrary to the form of the statute in such case made and provided."

To this indictment the respondent demurred and the demurrer was overruled by the presiding justice and the respondent alleged exceptions.

Ardon W. Coombs, county attorney, for the state, cited: State v. Payson, 37 Me. 361; R. S., c. 16, § § 2, 6. Franklin Wharf v. Portland, 67 Me. 46; Haskell v. New Bedford, 108 Mass. 214; Brayton v. Fall River, 113 Mass. 225; Merrifield v. Worcester, 110 Mass. 216; Manufacturing Company v. Worcester, 116 Mass. 458; Boston R. Mills v. Cambridge, 117 Mass. 399; State v. Freeport, 43 Me. 198; State v. P. & K. R. R. Co. 57 Me. 402; Rex v. Medley, 6 C. and P. 403; Regina v. Stephens, L. R. 1 Q. B. Cas. 702; Louisville, & c. R. R. Co. v. State, 3 Head (Tenn.), 523; State v. Morris & Essex R. R. Co. 33 Zab. (N. J.) 360; Com. v. Nashua & Lowell R. R. Co. 2 Gray 54; Reg. v. G. N. & c. R. R. Co. 9 Q. B. 315; Com. v. New Bedford Bridge Co. 2 Gray 339; 2 Dill. Mun. Corp. § 746.

William H. Looney, city solicitor, for the city of Portland.

It is a clear principle of the English law, that all corporations municipal as well as private, which owe duties to the public are not liable to indictment for malfeasance, unless the duty is devolved upon the corporation by prescription or by statute … …. " it must be a duty or obligation of a public nature, and one, mandatory in its nature, and not discretionary." Dillon on Mun. Corp. (3d ed.) vol. 2, § 931.

In this country the same principles have been recognized, and corporations are generally regarded as indictable for malfeasance as well as nonfeasance respecting duties of a public nature, plainly enjoined by the legislature for the benefit of the public. Idem, § 932.

Unless changed by statute the common law prevails. A municipal corporation can be indicted only for neglect of duties enjoined by law. State v. Great Works M. & M. Co. 20 Me. 41; Brown v. South Kennebec Ag. Soc. 47 Me. 275; Small v. Danville, 51 Me. 359; C. & O. Canal Cor. v. Portland, 56 Me. 77.

Municipal corporations have frequently been indicted for failure to discharge the duty with respect to the maintenance of public highways, but this is because the duty is imposed upon them by statute. State v. Gorham, 37 Me. 451; State v. Madison, 63 Me. 546; State v. Beeman, 35 Me. 242. In Blood v. Bangor, 66 Me. 154, the liability was imposed by statute. See Darling v. Bangor, 68 Me. 111; Child v. Boston, 4 Allen 41.

All that can be reasonably expected from the city is a due regard for the public interests and convenience. The city in the erection of public works which operate as a public benefit in improving the sanitary condition of the city is only liable for the negligent or careless execution of its duty. Woods' Law of Nuisances, p. 781, § 745.

BARROWS J.

The indictment charges, and the demurrer admits the unlawful commission of all the acts and facts which constitute a public nuisance, noisome, and prejudicial to the public health. The details indicate that it consists in fact of a great accumulation of filth around the outfall of a public sewer in the vicinity of a business street and wharves which are much frequented. The question is whether the public has a remedy against the city by indictment. The city solicitor properly concedes that " corporations generally are regarded as indictable for malfeasance as well as non-feasance respecting duties of a public nature, plainly enjoined by the legislature, for the benefit of the public; " but he urges that the city ought not to be held to answer for a permissive nuisance arising from sewage matter deposited in tidewater, where there is no allegation of negligence or defect in the plan of the sewer (and all the difficulty there is, arises from the plan,) in adopting which the city has exercised its best judgment as to the proper location of the outfalls of the sewers, and has been guilty of no negligence, having constructed their sewers upon a system as good as any one knew how to build at the time of their construction.

While this plea, if supported by the proof, would suffice to relieve the city officials in the popular judgment from the blame of negligence, we do not think it amounts to a legal defence for the city upon a charge of creating and maintaining a public nuisance in the manner set forth in the indictment.

While evil intent, or negligence importing a greater or less degree of moral blame may and ordinarily does accompany the commission of a nuisance, it cannot be said that either is an essential element of the offence. On the contrary it is certain that there are cas...