The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1867-08-10
The grade therefore controc,ed e,r vas MT
legally established. u''eu e'' ioi was no'
APPROPRIATION

the time the order of Nav q was'eyer Saa lsoi, =
or at the time the contract was exao,,taa H
at the time the work was commenced. Th;s y,
is not denied by any one. iu8
1.-THE laws OF the city as found in its char
ter and ordinances evidently contemplat..
and require appropriations for such works
before the liabilities accrue, and require that
I"all departments, boards, officers and COM
| mittees acting under the authority OF the
city and trusted with the expenditure OF pub
| lie money shall expend the same ior no other
Duyp0se than that for phich 10 is dppr0pri-
| otcd,' and no committee is authorized to con
clude contract or make expenditures beyond
the amount of the appropriation until atl-
thorized by the City Council so to do City
Charter, sections Z, 10, ordinance concern
ing contracts and expenditures passed FEB
ruary9 1865.
| These are necessary provisions for the or
derly, safe and just management OF the mu-
nlclpal affairs OF the city and to prevent any
ofhcer nom diverting the funds of the city
from their appropriate channels. The City
| Council itself may direct payment from
any fund, but the officers of the city Govern
ment are unless otherwise objected limited TO
| the Appropriation made for the work they are
| executing. 4 HrE -tH.3 Fay. ~ .-..I
No appropriation has yet been made for
this work. Upon the 10th of June 1867 a
general order was passed making an appro.
priation of $4,000 for streets, sidewalks and
| bridges. 1t was argued at the hearing that
| this appropriation being made alter the exc
cution of the contract it is to be presumed
it was made with reference to it, and for it,
with other general purposes ro,s ........ -...,
do not think such presumption arises.
think the presumption On the contrary Is
that the appropriation then made was for the
ordinary requirements of the streets, side
L
This undertaking assuredly was not of an
ordinary character, but of very extraordina-
ry character involving a very large outlay Of
! money. ''"f
| 1t was not deemed to be within the powers
| and duties OF the Committee ON Streets, but
was regarded as of so unusual q character as
TO require the special action of the City Coun-
| Gill; r.U .r .l,,-0-,. r. a,,.r. t.,,. t....-. r.
No officer OF the government, whatever his
position was regarded as invested with slIfii-
| cient power to execute the design. II is very
clear it was not embraced in the ordinary du-
| ties OF any officer OF the government, and
| think no presumption arises that tue appro,
priation made for the ordinary expenses OF
| the government for streets, sidewalks and
! bridges was intended to cover this ex:raordi-
nary work involving an outlay of many thou
| sands of dollars. l'H atpc -ili 4sr 7s.
Such construction would defeat the pur-
poses of those provisions of the charter and
| ordinances referred to. -.,. .,..r.
! There would be no failure of appropriation
| for this work until the whole SIS 900 was
| expended upon it. The whole S75 ,O0o might
be expended here and the failure of appropri-
alton charged upon the ordinary street and
bridge expenses. Il think it cannot be neces-
! sary to discuss this matter, tuIther. There
can be no justification for embracing in gen
eral appropriation for streets sum supposed
to be necessary for carrying ON such a work /;
| II such had been the design the estimate made
I and the basis upon which it was founded
could be made clearly to appear. 1t is I'M
| reasonable to suppose it was guessed at.
am clearly OF opinion that no appropria-
! ton has been made for the work at all.
| Whether it has come of accident or design is
not material to inquire. Parties deeply in
| terested in the matter may fancy they see evil
,dences of one or the other. Whatever the
! cause the fact in my opinion exists. 20
THE SUBSEQUENT ACTION OF, THE CITY
IdI -s.4fs,ii T., COUNCIL. f..-.,.t ........
Al still more formidable difficulty exists in
the subsequent action of the City Council.
4gIt Is in proof that both branches of the
city government on the 18th Of June, 1867, BY
concurrent action passed an order directing
the committee on sheets to suspend the work
| upon the streets; that in pursuance OF this
| order the work was suspended; that this or
oderofs the City Council was executed by the
| Mayor in person. He says, II notified the
person III charge Of the work to stop work .
1t is said however that this order not hav-
ing been signed by the Mayor, the Board OF
I Aldermen at their next stated meeting recon-
sidered, their act OF concurrence with The
Common Council and laid the order upon the
table, and that this action was allowable by
section 10 Of the rules of that board. p
| Sec. 10 of the rules of that board provides
tfat "iohen q pOte is passed, ,it shall be in or
der for any member to more. a rec0nsidera-
| tiOh thereof at the same or neat stated meet
ing, but not after,odrd ercept on papers re-
| turned from the Mayor" .'.''di 80 'taf7otsi
This was not paper returned from the
Mayor and therefore does not come under that
Clauses The "vcteo which is subject to re-
| consideration at the next stated meeting Is
| an nnexecuted vote. Ii the rule. embraced
| all NvOtes" passed no vote could be executed
until after the next stated meeting after it
was passed The rule allows a reconsidera-
tiOn otany vote which has not been executed
| ii moved at the next stated meeting. but it
does not allow the executed vote of the city
/ to be vacated by a reconsideration with full
knowledge OF its execution. hi 4'iN" %"
;, Neither does the rule allow the reconsider
atiOn and vacation OF a vote which has been
approved by the Mayor. .tr -ui 4a.r vf
In this case it is conceded the Mayor had
not fixed his signature OF approval to the
/ vote before the reconsideration but it is at
the same time proved that he personally gave
| the order executing the vote and did not re.
| turn the order with his objections to that
branch in which it originated. The Mayor
having executed the order must be presumed
to have received it and approved it at the
| time 1t was executed. @'As ~ - -
The evidence of his approval here found is
quite as strong as ii his certificate OF the fact
| was found upon the order. In both instances
| they are acts of his indicating approval. The
charter lSec. AZ does not in terms require his
name shall be endorsed upon it. Many Of the
orders in this case do not bear the signature
of the Mayor. The order of February Is.
| 1864, establishing the grade of Congress street
| from the southwest line Of the Eastern Prom
enade to the southwest line of East CONNER
cial street, and the grade OF East Commercial
! street where 1t crosses and connects with Con-
| gress street, does not bear the signature OF
the Mayor. II it was necessary that the or
der should be approved in writing by the May
orto give it validity, there has never been any
grade established tor that part OF Congress
street lying between East Commercial street
and the Promenade.
| The charter sec. requires him if he does
not approve the order to "return it with his
objections at the next stated session OF the
City Council" If he does not do this bat
in the meantime executes the order in person
think he must be regarded as having ap-
proved it, and that the action of the Board Of
a Aldermen by way of an attempted recopsid-
Grafton OF their former vote, iI full view of
all the circumstances, was unauthorized and
void. s8sf 3s tsflIq alfs +rffi IS ret,s4 AHA,
L. i am therefore clearly of the opinion that
there is valid, subsisting order of the City
Government directing the suspension of the
| work commenced under the contract Of June
| 10, 1851, and that the work of grading Con-
| gress street under that contract should be
| suspended until further order of the Court.
The laying out and constructing OF streets
| is undoubtedly within the powers OF the City
| Government. They must be the judges OF
| the best mode of constructing, and the best
| time t. construct them, always keeping them
up to the stan lard required by the laws OF
the State. With the policy or impolicy OF
| this undertaking l have nothing to do and
have no opinion. have viewed it simply in
Fits legal aspects and regret to find the action
OF the government officers so irregular as to
require the interposition of the equity powers
of the Court. Ns"iAt CA tf' .aiaF.r
The power to enjOin is one which should
be cautiously exercised and only to prevent
irreparable injury. When imposed temporar-
lily it may be removed as soon as the cause is
removed, which in this instance may or may
not be done Immediately by the corporate ac-
ton OF the City Government. The illegality
OF the proceeding consisting in irregularity of
action, 1t is susceptible of immediate corIec-
ton and relief from restraint. 5-.,,
+ Upon a careful review of the case as pres
ented to me conceive IL to be my duty to