On June 16, 1969 the City Council of Portland (City) voted to change a part of the municipal zoning ordinance to change the zoning of a part of Long Island in the city, owned by King Resources Company (King) from Residential-3 to Industrial-3 use.
Chapter 102 of the City's ordinance provides for the initiative and referendum on certain matters of municipal concern but requires that the petitioners must sign the petition in the office of the City Clerk.
Some of the Plaintiffs had earlier petitioned the City Council for a referendum on that change in the zoning ordinance but the attempt had failed because of insufficient signatures on the petition. The other Plaintiffs allege that because of illness, infirmity or the press of business they were unable to go to the Clerk's office to sign the petition.
Plaintiffs then sought the Court's declaratory judgment that this provision of the ordinance requiring that such a petition be signed only in the City Clerk's office discriminates against them and denies them the equal protection of the laws guaranteed them by Section 3 of Article 1 of the Constitution of Maine and by the Fourteenth Amendment to the Constitution of the United States. The Plaintiffs also asked that the Court stay the effective date of the ordinance amendment changing the zone to Industrial-3 and that it enjoin King from using its land on Long Island contrary to a use allowed in a Residential-3 zone until the termination of this action.
Both Defendants answered, denying some of Plaintiffs' allegations. After a pre-trial conference attended by the Single Justice and counsel for the three parties and before any evidence was taken, the Justice issued a pre-trial order in which he
2) Specifically found that the provision of Sec. 102.1, Chap. 102 of the initiative and referendum ordinance of the City of Portland is reasonable and therefore not violative of any provision of either the State or Federal Constitutions.
3) Denied plaintiffs prayer for both temporary and permanent injunctions.
The matter comes to us on Plaintiffs' appeal. Although no evidence was admitted before the Single Justice the parties agree that we may take judicial notice of the ordinance in question.
Our first problem is the question of the Plaintiffs' standing to bring the action before the Court.
In examining the status of citizens who seek relief against municipal action, our Court has distinguished between preventive and remedial relief. Individual tax payers of a municipal corporation have not ordinarily the right to sue for remedial relief where the wrong for which they seek redress is one which affects the entire community and not specifically the individuals bringing the action. Where the injury claimed is one shared equally by all the members of the community the action must be brought by the Attorney General of the State as representative of not only the particular Plaintiffs who seek remedial relief but the entire community. LaFleur ex rel. Anderson v. Frost, 146 Me. 270, 80 A.2d 407 (1951); Eaton v. Thayer, 124 Me. 311, 128 A. 475 (1925); Bayley v. Wells, 133 Me. 141, 174 A. 459 (1934).
In this case the Plaintiffs are seeking both preventive relief (injunction against both King and the City) and remedial relief (a declaration that the portion of the ordinance complained of is unconstitutional). The petition alleges that all the Plaintiffs are residents, summer residents or property owners of islands in Casco Bay in Portland who would suffer irreparable harm in the use of their property by the utilization of King's Long Island property in the manner proposed. It also asserts that certain of the Plaintiffs, by reason of age, infirmity, or the press of business were unable to go to the City Clerk's office to sign the petition although they desired to request such a referendum and as a result suffered discrimination from the operation of the ordinance.
The procedure followed by the Justice in denying Plaintiffs' prayers in his pre-trial order was somewhat in the nature of the granting of a motion to dismiss. M.R.C.P. Rule 12(b) (6). In now testing the action of the Single Justice in denying the relief sought without evidence having been presented we assume the correctness of all Plaintiffs' factual allegations.
The Plaintiffs' ultimate purpose is to prevent King from making its intended use of its property in Casco Bay but the immediate complaint addressed to us concerns their inability to get to the Clerk's office to sign the petition for referendum. Their status is now measured not by the ultimate effect of King's proposed use upon them as against its effect upon other members of the community but by the effect of the requirement as to signing in the Clerk's office which they—aged, infirm and busy— were unable to do but which the public in general would not find insurmountable. These Plaintiffs argue that they have standing to attack the constitutionality of the ordinance. We agree.
The Constitution of Maine, Article 4, Part 3, § 21, in general terms, empowers cities to establish by ordinances the initiative and referendum in regard to their municipal affairs. Acting under this authorization, in the Portland City Council passed, and the voters ratified, the ordinance now in question, other parts of which were examined by this Court in LaFleur ex rel. Anderson v. Frost, supra.
Plaintiffs complain that the first paragraph of section 102.1 discriminates against
The Constitution is only permissive and leaves to the City Council and the electors of a city the determination of the details of procedure to be followed in invoking the initiative and referendum. As the Legislature has not seen fit to establish a uniform procedure the cities are free to adopt machinery which appears best suited to their particular needs. The ordinance adopted, however, must not deny the citizens any of their constitutional rights as members of the electorate.
We ask ourselves the same question which we said was presented to us in our consideration of other phases of this ordinance in LaFleur (146 Me. page 284, 80 A. 2d page 414).
Specifically, does the requirement that the petition must be signed in the office of the City Clerk discriminate against Plaintiffs, aged, infirm or busy as they were, and deny them equal protection of the law as against other voters who would not be prevented from complying with the ordinance if they chose to seek referendum on proposed municipal ordinances?
We take it as proved that the effect of section 102.1 was to deprive some of these Plaintiffs of the opportunity of signing the petition in question. The test is whether the ordinance offends constitutional guarantees and whether or not the provision is reasonably designed to carry out a proper legislative purpose. State v. Starkey, 112 Me. 8, 90 A. 431 (1914).
We stated the applicable rule in Lewiston v. Grant, 120 Me. 194, 113 A. 181 (1921):
It has also been said:
The legislative purpose of the contested provision becomes clear when we read it in conjunction with section 102.2 which sets out the form of petition to be used and which concludes with the certification:
The City Council intended the disputed provision to be a safeguard against fraud in obtaining use of the referendum process, and the electorate ratified its action. The purpose of the relevant language in the two sections was to make possible scrutiny by a responsible official as to the identity of persons who have deposed that they are legal voters of the City.
This legislative purpose is proper. The interruption of operation of a municipal ordinance for the purpose of referendum is not of trivial import. Did the legislative body act reasonably in an effort to obtain this end? We cannot say it did not. The machinery chosen may not prevent all fraudulent signatures on petitions but it appears reasonably capable of discouraging such fraud. It is conceivable that other methods could be devised to obtain the same result but the legislative body of the City has in its discretion chosen this method and we do not find its choice unreasonable or oppressive.
This provision of the ordinance applies to all voters. We do not find it to be arbitrary or unreasonable. State v. Old Tavern Farm, Inc., 133 Me. 468, 180 A. 473 (1935). Undoubtedly it works difficulty from time to time on some other voters as it did here to some of these Plaintiffs. It is inescapable that many municipal ordinances disadvantage some individuals. It cannot be expected that a municipal ordinance will affect all persons with exact equality. An ordinance forbidding parking of vehicles in certain areas necessarily makes access to those areas more difficult for the aged and infirm than for the youthful and vigorous. State v. Phillips, 107 Me. 249, 78 A. 283 (1910). Before the
We find that Chap. 102, § 102.1 is reasonable and not violative of the guarantees of equal protection found in the Constitutions of the State of Maine and of the United States of America.
POMEROY, J., did not sit.
WILLIAMSON, C. J., sat at argument but did not participate in decision.