Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1921-06-30
THE CITY'S RIGHTS
IN GRANTING PERMITS

l
Squares for Private Business
Enterprise, City Solicitor
Sawtelle Reports
| The City of Augusta has no an
thority either by charter or statute
winch in my opinion can be con
strued, to allow permission to b,
granted Tor the erection of a build
ing OF any sort in it's public street:
OF squares for private business en-.
terprise," says City Solicitor M. r
Sawteile in report recently present
ed to the city council. This repor
] related to the petition of Norris M
Clough, manager of the Wesserun.
sett Garage Co, asking for a permit
TO erect gasoline filling station or
city property located approximately
| in the center of Market square. sale
building not to interfere with traffic
in any way.
| The report of the city solicitor was
| accepted in concurrence at the meet
ing OF the city government. thus de-
nying the petition of MIR. Clough
| Mr.. Sawtelle in his report answers
a. question that often arises as tc
how far the city government may
go in the granting of permits, or to
be more exact, what the city gov
eminent cannot do along this line.
The city solicitors report reads as
follows:
To the Honorable Mayor and City
Council of the City of Augusta:
Relative to petition for authority
to install a gasoline filing station in
Market square, referred to me for
my opinion, l beg leave to report:
l. In the absence of specific statu-
tory or charter authority a city or
town has no right to permit encum-
ORANGES in Its streets or public
squares Nor private purposes. The
city holds it's streets for the benefit
of the public. 1 quote briefly a few
decisions illustrating this:
municipalities possess no inherent
rights in the streets within their ter
ritorial limits, empowering them to
grant any rights therein or thereto,
which will impair their use as a pub
lie thOrOughfare
The fee of the streets is in the city
and yet it is held in trust for the use
and benefit of the public. The city
does not have the authority to sell
and convey the title held by it, or au-
thorize the streets to be used for pri-
vate purposes. % l.. r. A. On. S.
925 note.
The exercise of the power to grant
privileges in streets or highways for
such purposes as q street railway was
said in Atty. Gen'l. VS.. Lombard &
S. SITS. Pass. r. Co. 10 Phila. 352 to
be always regarded as reserved by
the people of the commonwealth to
themselves. their hold upon it is
never relaxed unless, they, of their
own will let go of it. This is never
implied in a grant of corporate pow
er to a municipality, even when au-
thority is given to the corporation to
cause streets to be established and to
exercise control over them"
While as already shown power to
grant privileges or franchises to use
streets may be included in a general
grant to a municipality of the power
to control, regulate, etc, when the
exercise of the right conferred is not
inconsistent with it's use by the pub
lie, and will not destroy or impair its
use as a public thoroughfare. this
doctrine however does not apply
when the franchise or privilege
granted is exclusive in character, in
such case the power must be ex-
pressly delegated, or arise from
nj ao yx-hi
such circumstances means inevitable
necessity % l.. r. A. On. s. 922.
Where the only authority delegated
to a city over it's streets is by its
charter. which, in general terms au-
thoriZes it to regulate their use, n
city is without power to make q grant
to a gas company for the exclusive
use of any of it's streets for gas pipes.
Norwich Gas Light Co. V. Norwich
Citv Gas Co % Conn. 49,
On the same subject in Chicago V.
Pooley 112 III. App. 343. the court
said that the title to the streets was
vested in the city in trust for the
public, that, 1.-The city is charged
with the conservation. control, man
ageront and supervision of the trust
estate. and it is it's duty to defend
and protect the title thereto. 1t has
no power or authority to grant the
exclusive use of it's streets or any
part thereof to any private person
or for any private purposes. but
must hold and control the possession
solely for public use. All public high
ways from side to side and from end
to end are held for the use of the
public this is the only safe rule"
Municipal corporations are instru-
mentalities of the State. exercising
such powers as are conferred upon
them in the government of the NUM-
cipality. Their power is measured by
the legislative grant, and they can
exercise such powers only as are eN-
pressly granted or are necessarily
implied from the powers expressly
conferred Smith VS.. mcdowell l4e
L1151.
A building or other structure OF
like nature erected upon a street
without the sanction of the leglsia-
ture is A nuisance, and the local cor
porate authorities of place cannot
give a valid permission thus to occu-
nv streets, without express power 10
this end, conferred upon them oS
oh. rter or statute. Dillon Nun. Corp.