The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1870-11-19

are hereby Authorized Id lei br ieAss |
theft roads, franchise oil property fbf /
hire, or 10 Contract with any individual or |
other railroad corporation, for tile rEnning and |
managing Of the same for term of years &c |
Under this act the Maine Central railroad |
company, of which the complainants claim to
be members, was organized IN 1862 by the con-
solidaiiOn of the Androscoggin & Kennebec
and PenObscOt q Kennebec railroad comma
nys, aud to that extent it is not in the mouths
of these complainantS to deny the Continued
existence and validity of the act. Yet thew
claim here that the consent of the Legislature.
expressed as above. was revoked by the subse-
quent passage OF Revised Statutes of 1857
chapter 81 section 81, and rely upon the later
act as conclusive upon the rights of these TAR
ties LII this question arose between them and
the Kennebec & Portland railroad company. I
think it would be very clear that their positInn
would not be malntainable. The Kennebec 81
Portland railroad company had charter
granted in 1886, which was expressly exemot-
ed from all liability to be amended altered or
repealed at the pleasure of the Legislature.
Revised Statutes chapter 81, section 81, is re-
vision OF al act concerning raill roads passed
in 1852, chapter 247, providing among other
things that no railroad company should have
power without the express authority of the
Legislature therefor, to lease its road or any
portion thereof to any person or corporation
| 1t was in view of that law, then existing, that
| the Legislature gave the express authority re-
| quiste to enable tie Kennebec and Portland
| railroad company to lease their road, and that
power once conferred became in the hands of
| the Kennebec and Portland railroad company
| one of their chartered rights, not subject to re-
vocation or repeal. Moreover do not find
that the repeal of the act OF April 1, 1856, has
| ever been designed or attempted by the Legis-
| lature. There is nothing in section 81, chapter
81 of the Revised Statutes of 1857, which seems
| to contem plate the withdrawal of the Legila-
| tive consent once expressly given, under
general law substantially similar. Uaws of
oh, Mar 10 ho ~
| 1856, any where included among the acts ex-
pressly repeated in the revision of the Statutes
| in 1857. 1t was claimed and published as
private act, nd private acts were not the sub
iect of revision. And if from its general char
acter, as additional to an act of incorporation,
it was to be deemed public act, it would still
be found nowhere included among the acts re-
pealed either expressly or by implication. The
very existence Of the defendant corporation in
| which the cOmplanantS have such an interest
depends upon it. 1t must be held that under
it the Kennebec and Portland railroad compa-
ny would have the right to make the lease in
question.
The respondents claim that under and by
virtue of section 81, chapter 81 Of the Revised
Statutes of 1857, and of the proceedings for the
foreclosure of their mortgage upon the Kenne-
bee and Portland railroad company, they have
acquired all the chartered rights Of that COM
the right to lease in question. And here arises
the principal difficulty in the ease. When the
mortgage, under which the respondents hold
the Kennebec and Portland railroad, was
made, the right to lease had not been
conferred and was not in existence.
Was it included in the mortgage
The respondents rest upon the broad language
of section 81, constituting them Company
Incorporated and chartered as of the day Of
the foreclosure, for all the purposes of the
original company, with all the chartered and
legal rights and immunities which pertained
to the original company at the time of the
foreclosure. But is it so certain that an act
of the Legislature can avail to transfer right
Lot in existence at the time of the making oil
the mortgage, but accruing to the mortgager
between that time and the time of fore
closure? Did not that right remain in the
Kennebec and Portland railroad company and
die with it?
Nevertheless the Portland and Kennebes
railroad company are in most, if not all, legal
respects, the, successors anC assigns of the
r Kennebec and Portland railroad company and
it is not enough for the complainants to throw
: doubt upon the legal propriety of this
transactions, to entitle themselves to the re M
! edy by injunction here asked for. The very
section of the statutes upon which they rely
q 81 prescribes the appropriate remedy for lis
| violation:
'On complaint of violation of the provis.
ions. the Attorney General is to file an in
junction, in the nature OF a writ of quo aCdr
; rdnto against the corporation, and the court
may enter such decree as justice and equity re-
quire."
In the English practice an Injunction is sell.
dom applied until the question of legal right
has been determined by proceedings at law
The process by Injunction, referred to in the
statutes, is already pending before the court
Uoder all the circumstances, the complanants
may properly be required to abide its determl.
ton.
Prayer for injunction denied