The Portland daily press., 1895-01-17

,
volving the widening of Forest Avenue
in Deering. The facts appear in the opin-
ion by Judge Haskell, which we give
in full. The result is that the report is
recommitted to the committee which
consists of Hon. Augustus +. Moulton,
Hon. Joseph E. Blabon and Hon. E. B.
MaIlett, with directions to amend the
report so that it shall state the number
of feet the way is to be widened, instead
of actually locating it as they did by
side line. The result, of course, is
victory for the petitioners and ensures
the widing of the Avenue as prayed for.
OPINION.
HaskeIl.J. The City OF Deering repre-
sented to the county commissioners that
public convenience and necessity re-
olured the alteration OF widening of
"Forest Avenue" SO called, in the city of
Deering, beginning at point near the
+ sidence of Joseph l.. Winsiow, and ex-
tending to the Portland & Rochester
railroad crossing at Ocean street, Wood
ford's Corner, and petitioned them to
latter or widen said highway as provid-
ed in Revised Statutes, C. 1S.Sec. l."
The commissioners adJudged thab
not require the alteration or widening
OF Forest Avenue, so called, in the City
Of Deering,as prayed for.
On appeal to this court comm1ttee
was appointed, and their report mas
that common convenience and necessity
require the alteration or widening OF
Forest Avenue aforesaid, to the extent
hereinafter desert bed, and we determine
that said Forest Avenue, from Polnt
near the residence of Joseph L.. WlnsloW
TO Ocean street, Woodford's Corner, shall
be widened to the extent determined by
the following described side llnes: TO
wit, locating the side lines on the lace
of the earth by monuments, courses anu
distances, so as to specifically descrl pe
the way as widened, and as shown by
survey filed with their report.
Objections to the acceptance OF the re-
mort are made by the county OF Cum ber-
laud, to wit:
|. That exclusive jurisdiction of said
way is vested in the city council OF
Deering by the city chartef. speclai acC
Of 1889, C. 500, Sec.4.
The charter provides: "The city coun-
Gil shall have exclusive authority to lay
| out, widen or otherwise alter or dlscon-
| time any and all streets or public ways
| in SAID CITY," 1t further provides for an
| appeal, as in the case OF town ways, that
| is to the county commissioners, maHlng
| their JurlsuIcblou III suoN H'oooS'S "AoAAJ
| appellate.
The charter of Portland contains the
same provision, word for word, but does
| not give any appeal. Act OF 1882, G. 24s,
Sec, 6. Other city charters, granted prior
| to 1866, contain the same provisions, and
it was assumed that these exclusive pro-
visions took from county mmlssloneIs
| all Jurisdiction over highways within
| city limits. The act Of 1866, C. At, pro-
! vides: "Nothing in any city charter, or
| in acts additional thereto, shall be SO con-
| strued as to deprive county commission
| ers of the power to lay out, alter or dis
| continue county roads within the limits
| of such cities. y" r S C. Is, Sec.l.
| In view of this act, some charters since
granted have excepted from the exclusive
| Jurisdiction given to city governments
| the Jurisdiction of county mmlssloners
| over highways; and some granted prior
| to the act do so. The Biddeford charter
does. Act of 1860, C. 3s3, Sec. 2. The
| Lewiston charter seems to. Act OF 1861,
C. 1o5, Sec.7. The Brewer charter, Acs
| OF 1889. C. 32S, Sec. II, like the Portland
| charter, does not; and unlike the Deer
| ing charter, granted the same year, Act
| of 1889. C. So Sec.4 does not grant any
appeal from location.
| The manifest intention of the act OF
1866 was to esta blish a uniform rule that
should aupy to all city charters, whether
1
phrase is: Nothing in any city char
| ter shall BIZ SO construed as to de-
prive county commissioners" OF Jurlsdlc-
tion over county roads within the lin
it's of such cities"
| The charter of Deering, granted after
| the act of 1866, contains words of the
same swept ng character as contained in
charters granted before the act. Ex-
! elusive authority to lay out, widen or
| otherwise alter or discontinue any and
| All streets or public ways in said city.
Al first glance, the word exclusive"
would seem to exclude all other author
| .ty over public ways within the city
| limits but when considered with the
| context, and in view of the act OF 1866,
which. bv the way, purports to declare
| the meaning of city charters aud not 10
| regulate the subject, it will be seen to
| refer to other matters. The inhabitants
of towns, by vote, mag lay out town
| WAYS. When Deering was made city
| to be governed differently from towns,
| by a city council instead OF selectmen )
| il was necessary to confer jurisdiction
over streets somewhere. and, therefore,
| the authority in such matters was ex-
| c4usiyely given to the city council. not
as against commissioners touching
! county roads, but as against the 1nhabl-
tants relating to streets, who had Prev
| ousIy acted in such matters.
|
i've authority" an appropriate meaning,
and removes conflict with the act of
1866. that would give county commits
| sioners authority in Portland and not in
| Deering, in Bangor and not in Brewer
would "mar the symmetry of 5ne law"
| and put the whole matter in Confusion.
| The act of 1866 must be held to apply to
| ali charters whether granted before or
after it's passage unless its application
| he restricted in terms.
II. That the petition is too Indefinite
to sustain any judgment upon the report
| of the committee and that the report
exceeded their authority and is therefore
| void.
| hy statute. They may affirm or reverse
ia whole or in part the doings of the
| commissioners who are to carry out the
decision of the committee. Now the
sufficiency Of petition may depend
very much upon the judgment finally
entered. II it's prayer be wholly denied
on the merits it's sufficiency becomes
| immaterial. If it he granted in whole
mr. in part hy the commissioners and
their Judgment be affirmed by the COM
mittes then indefiniteness in certain re-
spects may be cured by a result that