Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1870-11-21

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-
quisite to enable the 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
revocation or repeal. Moreover do not find
that the repeal of the act of April l, 1856, has
ever been designed or attempted by the Leg
islature. There is nothing in sec. 81 chap.
81 of the Revised Statutes of 1857. which
seems to contemplate the withdrawal of the
Legislative consent once expressly given, I'M
der a general law substantially similar claws
of 1852, chap. PAD. Nor is the act of April
/, 1856, anywhere included among the acts ex-
pressly repeated in the revision of the Statutes
in 1857. 1t was claimed and published as a
private act, and private acts were not the sub
ject 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
ton in which the compiainants have such an
interest depends upon it. 1t must be held
that under it the kennebec and Portland rail-
road company 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 & Portland railroad company, they have
acquired all the chartered rights of that com
pany whenever accruing, and among the rest
the right to lease in question. And here arises
the principal difficulty in the case. When the
u
the Kennebec & 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 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 pertalned
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
not in existence at the time of the making of
the mortgage, but accruing to the mortager
between that time, and the time of foreclosure
Did not that right remain in the Kennebec (
Portland railroad company and die with it?
Nevertheless, the Portland and Kennebec
railroad company are in most if not all, legal
respects, the successors and assigns of the
it is not enough for the complainants to throw
doubt upon the legal propriety of this tran
saction, to entitle themselves to the remedy
by the injunction here asked for. The very
section of the statutes upon which they rely
6 80 prescribes the appropriate remedy for
its violation:
son complaint of violation of the provis-
ions, the Attorney General is to file an in
junction, in the nature of writ of quo arar
ranto against the corporation, and the Court
may enter such decree as justice and equity
require"
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
Under all the circumstances, the complain
ants may properly be required to abide its de-
termination.
Prayer for injunction denied.