(113 A.) namely: Is a county attorney authorized by the common law or by statute to bring a bill for the abatement of a nuisance in behalf of the state in his own name?

To the bill the defendant demurred, and after hearing upon the merits, the bill having been sustained, an injunction granted, and the demurrer overruled, the defendant filed exceptions to the decision of the court in overruling the demurrer and asserts the following objection to the maintenance of the bill: (1) That there is no proper plaintiff; (2) that the bill does not set out a cause for the intervention of the court in equity.

We need, however, to consider the first objection only. It is claimed that Henry L. Withee is not a proper plaintiff to the bill. While conceding, for the purpose of argument, that the bill might be sustained with the state of Maine as plaintiff, or by the Attorney General in his official capacity, as representing the public interests, as plaintiff, the defendant nevertheless claims that it does not follow therefrom that such a bill can be maintained in the public interest with the county attorney as plaintiff therein.

[1] We think this contention must prevail. The United States and the states composing it have inherited from the English common law the officer known as the Attorney General. In that common law the duties of the Attorney General, as chief officer of the realm, were numerous and varied. With reference to the duties of the Attorney General in the different states, it is said in 2 R. C. L. 916, par. 5:

"A court of equity has jurisdiction to restrain existing or threatened public nuisances by injunction, at the suit of the Attorney General in England, and at the suit of the state, or officer representing the commonwealth, in this the people, or municipality, or some proper

country."

The question here is, Who is the proper officer representing the commonwealth when the proceeding is not brought either in the name of the Attorney General or the commonwealth?

[3] By analogy, the argument might seem plausible that the county attorney, as he is called in this state, as well as the Attorney General, might represent the state. In discussing the distinction between the prerogatives of the Attorney General and the county attorney with reference to representing the state, 2 R. C. L. 914, par. 2, under the caption "Distinctions between Prosecuting Attorneys and Attorney General," has the following:

"The office of prosecuting or district attorney unlike that of Attorney General is of modern creation, with its duties chiefly prescribed by statute."

Such is the distinction between the offices in this state. The county attorney is the sole creature of the statute. His duties are prescribed by the statute, enlarged only by the additional duties incidental and necessary to carrying out those prescribed.

We find no statute in this state which authorizes the county attorney to bring a bill in equity in his own name for the abatement of a public nuisance, nor do we find any case or kindred case that has reached the courts for adjudication.

[4] On the contrary, our statute by implication, under the rule of exclusion, would seem to negative the contention of the plaintiff in this case. R. S. c. 23, § 1, defines certain places, acts, and conditions to be common nuisances. With respect to the abatement of these nuisances, the statute then proceeds to say:

"Although in a few jurisdictions the Attorney General has only such powers as are expressly conferred upon him by law, it is generally held that he is clothed and charged with all the common-law powers and duties pertaining to his office as well, except in so far as they have been limited by statute. The latter view is favored by the great weight of authority, for the duties of the office are so numerous and varied that it has not been the policy of the state Legislatures to attempt specifically to enumerate them; and it cannot be presumed, therefore, in the absence of an express inhibition, that the Attorney General has not such authority as pertained to his office at common law. Accordingly, as the chief law officer of "The Supreme Judicial Court shall have juthe state, he may, in the absence of some ex- risdiction in equity, upon information filed by press legislative restriction to the contrary, the county attorney or upon petition of not exercise all such power and authority as pub-less than twenty legal voters of such town or lic interests may from time to time require, and city, to restrain, enjoin or abate the may institute, conduct, and maintain all such suits and proceedings as he deems necessary for the enforcement of the laws of the states, the preservation of order, and the protection of public rights."

In our state the Attorney General is a constitutional officer (see Const. art. 9, § 11), and exercises common-law powers.

same."

The nuisances in the above section are all defined by statute, and the statutory right of the county attorney to proceed by information is confined to a process for the abatement of these particular forms of nuisance. The nuisance in the present case is not one

[2] In Pomeroy's Equity Jurisprudence, § of them.

(120 Me. 151)

NORRIS et al. v. MOODY et al.

(Supreme Judicial Court of Maine. April 5, 1921.)

was the purpose of the statute to authorize the county attorney to proceed in his own name for the abatement of all nuisances, that the authority conferred by the above statute to abate the particular nuisances therein named would merely be surplusage. 1. Courts 202 (5)-Appeal in suit in probate He is nowhere given authority by statute to thus proceed to the abatement of any common-law nuisance, nor of any other of the subsequently prescribed statutory nuisances, one of which embraces the very conditions which the present bill was brought to abate, namely:

"The erection, continuance or use of any building or place for the exercise of a trade, employment or manufacture, which, by noxious exhalations, offensive smells or other annoyances, becomes injurious and dangerous to the health, comfort or property of individuals or of the public." Section 5.

We cannot avoid the conclusion, in view of the phraseology of the nuisance statute, that it was the intention of the Legislature to authorize the county attorney to proceed, in his own name, for the enforcement of that part of the nuisance statute relating to the execution of the prohibitory law, and to leave the enforcement of the other provision to the usual and established methods of procedure, in the name of the Attorney General of the

state.

Jackson v. Norris, 72 Ill. 364, and Smith v. McDowell ex rel. Hall, 148 Ill. 51, 35 N. E. 141, 22 L. R A. 393, cited in the plaintiff's brief, are both cases brought by the county attorney in the name of the plaintiffs as relators, as is shown by the title of the cases. In the case of Patterson v. Temple, 27 Ark. 218, the court, in dismissing a bill brought in the name of the county attorney for the people, state their conclusion as follows:

"We know of no law that authorizes Newton J. Temple, as a prosecution attorney, to bring any suit in behalf of the people of the state of Arkansas.'"

court to construe will should be taken under statute applicable to probate court and not equity courts.

Where, under Rev. St. c. 67, § 2, giving probate courts concurrent jurisdiction in equity with the Supreme Judicial Court of matters relating to the administration of estates, a bill for the construction of a will was filed in the probate court, an appeal from the final decree of the probate court was properly taken under chapter 67, § 31, declaring that any person aggrieved by any decree of the judge of probate may appeal therefrom and the appeal should not be taken under chapter 82, § 22, relating to appeals from a justice of the Supreme Judicial Court in equity cases, since to hold otherwise would result in depriving of the right to framed issues referred to by chapter 82, § 33, and the right to bring up single issues by exceptions referred to in same section.

2. Equity 377-Framed issues of fact may be submitted to jury without statute.

Independently of Rev. St. c. 82, § 33, authorizing a court sitting in equity upon application of either party to frame issues of fact to be tried by a jury, such right to a jury trial, though not guaranteed, is a well-established feature of equity jurisprudence.

3. Courts 90(1)-Decision is not precedent for mode of appeal where jurisdiction is not challenged.

Where a suit begun by bill in equity in the dicial Court on appeal in accordance with Rev. probate court was brought to the Supreme JuSt. c. 67, § 31, the fact that the method of appeal invoked was not questioned is significant, although the decision is not a conclusive precedent; jurisdiction not having been challenged. 4. Courts 472(1) — Nature of "concurrent" equity jurisdiction of probate court stated.

Under Rev. St. c. 67, § 2, providing that courts of probate shall have jurisdiction in equity concurrent with the Supreme Judicial Court of all cases relating to administration of estates, etc., the word "concurrent" does not mean exclusive or final, for that would negative the right to resort to the law court, but the lower court has final jurisdiction subject to appeal.

[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Concurrent.]

Report from Supreme Judicial Court, Kennebec County, at Law.

Bill by Burton H. Norris and others against Mary W. Moody and others. From a final decree of the judge of probate, the petitioners appealed. On report from the Supreme Judicial Court of Kennebec County at Law. Case directed to stand for hearing in the Supreme Court of Probate.

(113 A.)

Argued before CORNISH, C. J., and [ 239, 176 Pac. 286; Pierce v. Storage Co., 185 SPEAR, PHILBROOK, DUNN, WILSON, Iowa, 1346, 172 N. W. 191; 36 Cyc. 1113; and DEASY, JJ. 26 A. & E. Ency. 600.

Harry Manser, of Auburn, for plaintiff's. McLean, Fogg & Southard, of Augusta, and Herbert E. Foster, of Winthrop, for defendants.

While the language of the statute is not wholly free from doubt, it certainly does not appear that supplying the above clause gives effect to the legislative intent.

[2] 2. The statute authorizes the court

DEASY, J. Section 2 of chapter 67 of the sitting in equity "upon application of either Revised Statutes provides that

party" to frame issues of fact to be tried by a jury. R. S. c. 82, § 33. Independent

"The courts of probate shall have jurisdiction in equity, concurrent with the Supreme July of the statute, trials by jury, while not dicial Court, of all cases and matters relating guaranteed by the Constitution, are a wellto the administration of the estates of deceased established feature of equity jurisprudence. persons, to wills, and to trusts which are cre- 21 Corpus Juris, 585. ated by will or other written instrument. Such jurisdiction may be exercised upon bill or petition according to the usual course of proceedings in equity."

The pending suit was begun in the Kennebec county probate court by bill in equity praying for the construction of a will.

From the final decree of the judge of probate the petitioners claimed an appeal under R. S. c. 67, § 31.

If the defendants' theory is right, the moving party by selecting the probate court as his tribunal may close the door of opportunity for either party to have a jury trial or ask for it. So radical a change in equity practice, if contemplated by the Legislature, would have been made expressly and not inferentially.

3. Causes may be taken to the law court on exceptions to the rulings of a single judge sitting in equity. R. S. c. 82, § 33.

intend this result.

The case comes to this court on report. Not so in case of rulings by a judge of proThe question involved relates to the remedy of a party who is aggrieved by the debate. From a probate court the whole case cree of a judge of probate exercising equity would have to be carried forward on appeal jurisdiction. The petitioners contend that notwithstanding that the entire controversy R. S. c. 67, § 31, providing for probate ap- might relate to a simple and single issue of peals, affords the proper remedy. The de- law. We think that the Legislature did not fendants maintain that the correct procedure is to apply R. S. c. 82, § 22, relating to appeals to the law court in equity causes. It is the opinion of the court that the contention of the petitioners must be sustained. [1] 1. Section 31 of chapter 67 applies literally to the situation. Omitting parts not here material, the statute reads:

"Any person aggrieved by any decree of such judges (judges of probate) may appeal therefrom."

This language is equally appropriate whether the decree is that of a judge exercising probate or equity jurisdiction.

[3] 4. The case of Singhi v. Dean, 119 Me. 287, 110 Atl. 865, was begun by a bill in equity in the probate court and brought to the Supreme Judicial Court on appeal in accordance with R. S. c. 67.

Jurisdiction not having been challenged the case is, of course, not decisive.

But the fact that the method of appeal invoked was not questioned either by the eminent counsel in the case or by the court is significant.

[4] 5. Arguments supporting the opposing theory are plausible but not convincing. The word "concurrent" does not mean ex

But section 22 of chapter 82, R. S., con- clusive and final. If so, it would negative strued literally is not applicable: the right to resort to the law court. The lower court is given final jurisdiction subject to appeal. State v. Sinnott, 89 Me. 43,

"From all final decrees of such justice (justice of the Supreme Judicial Court) an appeal

lies to the next term of the law court."

35 Atl. 1007.

*

The language, "such jurisdiction may be To make this statute apply there must be exercised according to the usual read into it, after the word "justice," the course of proceedings in equity," does not rephrase "or any judge of probate exercising late to procedure following the final decree equity jurisdiction." Such a clause should of the judge of probate. As contemplated not be read into the statute by the court by this section, the jurisdiction of the prounless plainly necessary to effectuate the bate court does not include the method of aplegislative intention. R. R. Co. v. County peal from that court. Com'rs, 28 Me. 120; Ins. Co. v. Greenleaf, 64 Me. 129; Karoly v. Commission, 65 Colo.

According to stipulation, case to stand for hearing in the Supreme Court of Probate.

(120 Me. 154)

DYER v. MAINE CENT. R. CO.

Arthur S. Littlefield, of Rockland, for plaintiff.

White & Carter, of Lewiston, and S. T.

(Supreme Judicial Court of Maine. April 5, Kimball, of Rockland, for defendant.

1921.)

1. Railroads 307 (7)—Duty to maintain sig. nals not measured by statute.

The mere fact that a signal device or flagman at a crossing has not been ordered by the Public Utilities Commission, or asked for by

the city authorities, under Rev. St. c. 56, § 73, does not necessarily exonerate railroad from negligence for failure to maintain such safety devices; the common law still requiring the exercise of care commensurate with the degree of danger incurred.

2. Railroads 307 (4)-Gates for branch line street crossing unnecessary.

DEASY, J. The defendant corporation has, and in 1916 had a branch track crossing Pleasant street, Rockland, at grade. On August 29, 1916, an automobile in which the plaintiff was riding as a passenger was, upon this crossing, struck by the defendant's locomotive. The injuries were thus caused on account of which this suit is brought.

[1] The plaintiff has recovered a verdict. The defendant brings the case to this court the presiding justice to order a verdict for on motion and exceptions to the refusal of the defendant. No gate or automatic signal was maintained, and no flagman stationed at this crossing. It does not appear that such safety devices had been ordered by the Absence of gate or Public Utilities Commission or asked for by the city authorities. R. S. c. 56, § 73.

A railroad branch line street crossing need not be provided with gates merely because of its proximity to the main line.

3. Railroads 307 (4)
flagman held not negligence.

The absence of a gate, automatic signal, or flagman at a quiet crossing in a residence district of a city is not negligence, where no such safety devices had been ordered or asked for under Rev. St. c. 56, § 73, and where the signboard required by section 72 was maintained at the crossing.

4. Railroads 312(3)-Whistle in city unnecessary.

No whistle is necessary, where a train approaches a crossing in a city, ringing a bell, under Rev. St. c. 56, § 72.

The mere fact, however, that such precautionary measures had not been ordered or prayed for does not necessarily exonerate the defendant. The requirements of the statute do not measure the full duty of a railroad company to the public.

"The common law still requires the exercise of care and prudence commensurate with the

degree of danger incurred." Smith v. M. C. R. R. Co., 87 Me. 348, 32 Atl. 967, 970.

There are situations wherein, by reason of

5. Railroads 317-Unlawful speed evidence congested travel or other conditions, it would of negligence.

Violation of Rev. St. c. 57, § 79, providing that no engine or train shall be run across a highway near the compact part of a town at a speed greater than six miles an hour, unless flagman or automatic signals are provided, renders a railroad liable to a penalty, and is evidence of negligence, though not conclusive as a matter of law.

6. Railroads 348(5) — Evidence insufficient to show unlawful speed.

Evidence held insufficient to sustain a finding that defendant's train was traveling over crossing in excess of six miles an hour, in violation of Rev. St. c. 57, § 79, although witnesses testified as to when brakes were applied, and distance the train ran after the collision.

be manifestly negligent to run railroad trains across unguarded streets, although no gate or other safety appliance had been officially ordered.

The

But it is plain that the Pleasant street crossing was not such a situation. street was not a crowded thoroughfare. At the date of the accident it was used as a detour, owing to the temporary closing of another street. There is nothing to show that it was other than a residential street carrying a moderate amount of traffic.

[2] We do not agree with the plaintiff's counsel that a branch line street crossing should be provided with gates merely because of its proximity to the main line. Train noises emanating from the main line

Exceptions and Motion from Supreme Ju- may be in some degree confusing, but they dicial Court, Knox County, at Law. are warnings admonishing the traveler to proceed with greater caution.

Action by Mary A. Dyer against the Maine Central Railroad Company. Verdict for plaintiff, and defendant brings up case on motion and exceptions to refusal of presiding justice to order a verdict for the defendant. Motion sustained, new trial granted. Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

[3] A signboard, as required by R. S. c. 56, § 72, was at the time of the accident maintained by the defendant. If the jury found the defendant corporation guilty of negli gence by reason of the absence of other safety devices at the crossing, the verdict cannot be justified.

[4] No whistle was sounded as the train approached the Pleasant street crossing. A,

(113 A.)

CORNISH, C. J. Appeal by the employer and insurance company under the Workmen's There is no sufficient evidence of negli- Compensation Act (Consol. Laws, c. 50). The gence on the part of the defendant in failing | to provide safety devices, or to give warning signals, or in respect to the speed of its train. The plaintiff has not alleged, and does not claim, negligence in any other respect.