The Portland daily press., 1868-03-31
The Extension of G onsre.. street.
JUDGE TAPLEY's OPINION


5. j. COURT, JANUARY TERN, 1855
DsIEois ct ats in Equity Us. Mayor Stevens and 9th
erS city officers, and Curtis and others, contract
ors.
TAPLEY j. The case is now presented upon
motion to dissolve the Injunction which was is
sued upon a former hearing, restraining the
Messrs. Curtis from proceeding to grade por-
ton OF Congress street according to an alleged
contract.
From the proofs and admissions now made
1t appears that the way in question had been
legally established before the filing of this bill
and that a grade is nOao fixed for the same,
whatever may have been its condition at the
time of the filing of the bill. That since tho
injunction was imposed, the city, under
modification of the decree, has settled ana
paid for all labor performed by the contractors
upon the way. As the case is noao presented
it shows legal location of the way, ana TO-
gal establishment of the grade, and o,,
thereupon legal liability or duty 10 open anu
keep in repair the same. 900 ., 40
No melton is made with feIereneS W 80
much Of the injunction as res.raine ~ INC 10y
officers. and it becomes immaterlai TO inquire
,vhetbar or not any restraint rests upon the
nrasent officers of The city with reference to
this matter. ----.-,
provisions of chap. 239 of the acts of 1864 enti
lied an "Act to restrain the illegal appropra-
tion of public money" At former hearing
it was determined that no appropriation had
been made by the city council for the work,
and that the city officers, in the absence of any
action by the city council, could not draw
from any appropriation for other purposes to
pay the expense incurred under the alleged
contract, and therefore the injunction issued
to restrain them from so doing.
Doubts existed as to the effect of the pro-
ceedings of the city in reference to the grade
of this street, upon the establishment OF winch
parties interested were entitled to due notice
and hearing, and, Immediately after the max
ing of the alleged contract, the city govern
ment ordered the suspension OF labor upon
the way, which order the Messrs. Curtis 1.-THE
alleged contradictory disregarded; consequent
ly they were also enjoined from proceeding to
grade the way.
All doubt as to the existence of legally
fixed grade at this time is 1ao1o removed. The
city officers regarded the injunction and did
not pay until permitted by the court and di-
rected by the city council. The legitimate
purposes of the bill have thus been accom-
plished; and whether We regard the ln1unc-
ton as still subsisting against the city officers
or not, the result is the same.
The contest seems now, in its legitimate
bearings, to be narrowed down to the alleged
| contractors on the one side, and the city upon
the other.
The Messrs Curtis allege they have valid
contract to grade this way duly made by and
executed with the city, and desire to be rellev-
ed from the effects of the judicial decree en-
joining them.
The city denies the validity of this contract.
This position is also assumed by the petition
ers.
The subject matter being one which the city
may act upon, execute and pay for, the court
will not, upon a preliminary hearing of this
bill, pass upon the questions of the validity OF
the contract, based upon matters of form in
the execution of it, That will be determined,
if at all, upon another hearing, whenever the
question is legitimately presented to the court
/ Whathar tho ha binding orr M I'm
| on the city they may suspend the work OF
| grading the street and abide the consequences
| The time and manner of executing the work
and the agencies through which it shall be ac-
| complshed, must be determined by the city
| acting through legitimate channels.
Whether this work shall or not proceed is
peculiarly question proper for their consid-
Grafton, and the responsibilities of proceeding
with the work or not proceeding with it, be-
long to them. A new city government has
now been organized and is competent, it is to
be hoped, to take charge of all its municipal
concerns. Should they see fit to suspend oper-
ations upon the work, and their directions
again be disregarded, the same aid from the
court lies at their command. The court will
not assume they desire either the one or the
| other.
The power to epioin should always be eau
| tioIsly exercised, being quite arbitrary in its
| character and summary in its application
| The same reasons which call for the exercise
OF cauIlOE III 1lS applCablOu Impress Un6 court
upon all applications for modification or re-
moval of it.
do not now find those exigences existing,
or that danger of irremedial injury and mis-
chief which warrants further continuance of
this injunction.
do not find it necessary to give any opin-
ion as to the effect of the action of the City
Council since the decree enjoining the res
pondents, as it bears upon the question Of rat
| ifcation or decentralization of the alleged
contract. All questions pertaining to the exis-
| tence originally and now, of valid and bind
| ing contract, between the city and Messrs
| Curtis, l leave for future consideration,
should the question ever be legitimately pre-
scented.
Should it be said on the part of the petition
ers that the city may allow these contractors
to proceed under an illegal contract, and
they thus be made liable to contribute for
the expense, it may be remarked that the
same mode of enforcing the present officers
of the city, is now open to them, as that
exercised over the former officers, should it
be proved to be a case within the provision
of the statute referred to.
No suggestion is now made of any suppos-
ed design upon the part of any officer of the
present city government to misappropriate
any of its funds and to relieve the case of any
doubt concerning the effect of the injunc-
ton upon them l shall order that injunction
as it affects all the respondents to be discharg-
ed.
The Messrs. Fessenden appear for the Complain
ants, Shepley u Strout for the Messrs Curtis and
Phineas Barnes, City Solicitor, for the city.