The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1867-08-10
The Injunction Cnsc,
JUDGE TAPLEY's OPINION.

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s1sy JUDGE TAPLEY's OPINION. a ..i
The opinion Of Judge Tapley on the case
pres ented, to him, to obtain a temporary in
junction, restraining certain officers of The
City Government Of Portland from paying
out, OF causing to be paid out. money from
the City Treasury in execution of a contract
made by the Committee on Streets ior the
city, with w. and A. Curtis for the grading of
Con gress Street, dated June 10, 1867, and to
restrain the said w. andRA. Curtis from pro-
deciding in execution ofthe contract, is docu-
mentof interest To all our citizens, and, there
fore, we publish his opinion at length. bia@7oi
After reciting the action of the City
Council in the matter, at various times, from
Oct, 10, 1868, to June 1857, Judge Tapley
says: ....-,,. ,...,... i. s.'.-.,
This resume of the proofs shows the state
of the case as now presented for action.
~ THE LOCATION OF CONGRESS STREET.
'' The location of the street upon which the
contrOverted acts are being done is not denied
and needs no attention. 'i'oDI fHo ''9'''4
.f THE GRADE OF NoNGR STREET.
II will be perceived theirs ,hsYe been at least
three different orders passed concerning the
grade of this portion OF Congress Street.
one bearing date Feb'y Is, 1854, another
bearing date March g. 1864, and the last bear
ing date March 4, 1867. .h1 l acn.hs ftn,.i4
d The first relates q to the grade from the
southwest line of the, Eastern Promenade to
the southwest line OF East Commercial street.
The secondrelated to the grade from Munjoy
Street to the southwest line of Eastern Prom
enade. The two cover Congress street from
SIunjoy street. TO East Commercial street.
~ Both were adopted according to pro6les
presented by the Civil Engineer, and both
proceedings were upon notice by the Commit
tee of their intention to examine and report
a grade. h9G-'s 80 ~ iiH uUI iatrG
~ The question of the sufficiency OF the no.
ties do not find it necessary now to discuss.
Three years after these proceedings, the last
order is passed, dated March A, 1857, and fix
es the grades Of Congress street and the por-
ti0bs OF the lower Promenade adjoining said
street, and also portion OF East CONNER
ciai street /" an accordance with the profile of
the same made by The -City -Cipa Engineer"
and then ..Submitted." = I.
1, This proceeding seems not to be based up
on any anterior preliminary proceedings or mo-
tice to any one and is in direct eontravention
of an ordinance of The city in March 1862,
relating to lines and grades of streets. 4, a. 4
By the third section of that ordinance il is
provided that hereafter no new grades shall
be fixed for any street and no old grades shall
be changed except by vote of the City Conn
Gil. All petitions, orders and other PROPOSE
tiOns for new grades OF changes OF grade,
shall be referred to some committee who shall
Investigate the case, hear all parties interest
ed, first giving all said parties notice OF said
hearing by advertisement in one OF the news
papers of this City, and shall report thereon
to the City Council. Said report shall in all ca
ses be accompanied by the written opinion of
the City Engineer on the proposed action and
shall be subject to such action as to the City
Council seems proper" go
! or aueht that appears by theproofs exhib-
tied, no person interested had reason TO know
or, believe that such proposition was pend
ing or to be acted upon by the City Council.
More than three years had elapsed since the
former and latest proceeding in the matter,
and no proof appears OF its introduction 9th
erwise than by the presentation of the order
itself at the time of its passage.
il we accord to the ordinance of March "a,
1862 the force of law, the order Of March A,
1867, was Intellectual TO legally establish the
grade OF Cong esS street according to the pro-
file then submitted, and which was the grade
contracted to be made by the contract of
June 10, 1867. t''''f'
It may be said however, this being ineffect-
ual, the grade remained the same as establish
ed by the orders Of FEBRUARY Is, 1854, and
March 3, 1854. sil o. 1lsaal ris,s eo.y... Isl
This does not necessarily follow. An
order establishing grade may be repealed
er be changing an old grade or fixing new
one, within the meaning of the ordinance OF
March "a, 1852. The change of old grade
there contemplated is a change which shall
leave in its place grade remaining. 1t is the
.fting of grade that parties are entitled to
notice OF, whether by making one where none
existed Or by reducing or changing an exist
ing one .att st9l-lfl" t .1'li' 'pnSA lh
h while the action of March a, 1867, did not
legally establish grade for Congress street, it
was declaration that the former orders were
no longer to be regarded; that another grade
was to be adopted
1t was two fold in its design. First to
abolish the old grade and second to establish
a new grade, both of which would have been
accomplished by due notice to parties inter-
ested. 1t was not the design to establish two
grades, hence it necessarily was designed to
abolish the old grade. l do not think that
because it failed to establish new grade, 1t
was an entire nullity. 1t was operative so far
as the council were authorized to act in the
matter. 1t is clear unequivoeal expression
against the grade established in 1864 1t was
manifest abandonment Ito use no stronger
language) OF the grade of 1864. 1t was plain
declaration of the necessity OF another grade
and one which should be contacted with fix
ed grade for East Commercial street and por-
tiOns OF the lower Promenade. Its utility and
propriety may depend in great measure up
ON the grades OF these connections and howev-
er similar the grade of Congress street may be
as established by this order, to that establish
ed by the orders of 1864, it may be that it
would not have been established as in 1854
independent of the grades now sought to, be
connected with it. y.
To hold that the order of March 4, 1867 is
an entire nulIity might establish a grade
against the jugdment of the City Council of
this wear, and in conformity with the Council
Of 1854. 1t would sustain a part OF the pres
ent plan Of grading this street and its connec-
tions and reject part leaving possibly an inn
practicable plan. -s0rT'ii'. - tirel-
This part of the case is not without its
difficulties. There are reasons why the or
der should receive the construction requiring
notice when the grade is entirely removed or
abandoned, leaving none in its its stead, at
least it may be said there are reasons why
parties should he notified that an existing Or
der establishing a grade is sought to be re-
pealed, and it cannot be denied this construc-
tion could be given the order without doing
violence TO the language used in it. How
ever this may be, cannot help regarding the
action of. March 4, 1867, as an expression OF
the Council that the grade of 1864 is an i'm
proper one and ought to be superseded by
such an one as was sought to be established
| in 1867. These suggestions have been made,
however, more with reference to possible
| future ac lion of the city rather than because
| it becomes necessary here to determine the
fact judicially. However this question may
| ultimately be determined think the order OF
| May 9, authorizing the Committee to con-
tract, and the contract made June 10, refer
| to the grade mentioned in the order Of Marcn
| 4, 1867. Certainly there is nothing in the case
| to warrant the presumption that the Commit!
tee intended to ignore an order OF sixty days
standing and fall lack upon one OF three
| wears, standing. ~ - 49,