The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1871-07-28


THURsDAY.-WiliiamC Curtis ct al. vs.. City o
Portland. Argued.
A. A. Strout Symonds
Julia F. Colley vs.. Inhabitants OF westbrook. Ar
guged.
, A. A. Strout. Webb-Bradbury q Bradbury,
Thomas B. Reed, Attorney General, by intorma-
tion VS.. Portland q Kennebec Railroad Co. Argued
This 10 proceeding under Chap. 81, Sect 81, r s.
1857, to procure the judgment Of the Court on the
lease of the P g. X. R. r. to the Maine Central, dat
ed May 49, 1870. On the part Of the State it is alleged
that the respondents have leased and Invested them
selves Of their road, and that contrary to law.
The respondents admit that they have leased and
Invested themselves Of their road, but deny that 1t
was contrary to law because in 1856 the X. q P. Il.
R. Co., another corporation, granted permission
by the Legislature to lease the road. To the
chartered and legal rights and immunites of this
other corporation they claim to be the ~
virtue of mortgage made In 1852 and foreclosure
Of the same under R. s. 1857, oh. 81 pp 1854 ct seq
and they aege that the permission given in 1856 to
the K q r. H. R. to lease among those chartered
and legal rights and immunities.
The points presented on behalf OF the State were
follows:
F1rst-Assuming the rights of the respondents to
be Identical with those CT the Kennebec y Portland
r. r. Co., the old corporation under the statute q
1866, 1t fs commended:
THAT Sect. 81 Chap. 8, R. s. Of 1857, requires
consent subsequent to Jan. 1, 1885, for lease made
after that time.
H-Thst the contract Of May 20, 1870, was not such
lease as was contemplated by the act Of 1885, but
consolidation, and therefore contrary to law. And
Secosd-Ths foregoing considerations are founded
upon the assumption that the authorization In the
Act Of April, 1856, chartered and legal right
and immunity" and that it was transferred to the
respondents by virtue of their foreclosure and under
Chapter 81 R. S., 1887.
Whatever may be the opinion Of the Court on the
two propositions advanced in the first part OF the
gument unless both Of these assumptions are cor
rect, the defence set up must fail. 1t contended
that aeither assumption is correct.
As matter OF fact it is apparent from the that
the authorization to lease was never accepted. As
matter Of Jaw it was contsnded:
I-Tbat the authority given by the act not q
right subssting in contract, because it
ceptsd and therefore did not pass by virtue OF Chap
81 Sect. ST. 4. ST. 1851 not being chartered or legal
right or immunity.
II this 10 not So then the right to lease grsnted i'll
1856 property Of the old corporation included
in the Portland 8 Kennebec mortgage, and was not
and could not be transferred by virtue OF Chap. 81
Sects. 81 and 81. r. g., 1851
Moreover this whole must be considered in the |
dents must show clearly that they have authority.
Doubtful expressions not enough. No right &C.
cruss to them by implication.
The respondents answer follows The Portland
q Kennebec Railroad Company created May 20
1852 by the foreclosure OF the mortgage OF Oct 10,
1852 under Sect 81 OF Ch 81 of the Revised Statutes
which constitutes them Company "tor all the pur-
poses OF the original Company 1.-THE Kennebec &
Portland g. a. co., with all the chartered and legal
rights and immunities which pertained to the origi
nal Company at thestime OF the foreclosure"
Ths old Company had the right to lease (unless the
law OF 1855 had been repealed) and the new Company
acquired the same right: ID As an incident to the
franchise, which was mortgaged; ~ the new Com
pany is invested by the Legislature with precisely
the Same corporate powers and rights which the old
Company had.
The Act Of 1856 was net repealed:
lit had become part of the charter and could not
be repealed.
Sit is not claimed that it was ever expressly re-
pealed. i.4
s-The revision Of 1857 was merely a modification |
Of existing laws and in the repeating clause saves all
rights existing by the laws repealed and the Legisa-
tore canDot be presumed to have intended to destroy
existing rights by repeating laws by implication.
4only public acts are repealed, and the Act o.
1855 IL private act.
S-The law OF 1857 is not really in conaict with the
law OF 1856; it prohibits leasing without the consent
OF the Legislature This consent had already been
given; and prior consent is good tueure one i
6-Ths whole Act of 1856 is to enable certain cor
poraons to dvest themselves Of the control Of their
railroad and any part Of it was repealed the whole
was. But in 1862 the Legislature expressly repealed
the ninth section; and why, IL the whole law had /
been repealed five years before?
We say, therefore, that the Act of 1856 never was
repealed, expressly or by implication, in form;
that 1t was not competent for tho Legislature to
peal it, If 1t had attempted to do SOL that therefore
the Kennebec & Portland Railroad Company, on the
day of the foreclosure, had the legal right lease
their rairoad that by such foreclosure and the gen.
eral law of the State, the bondholders created
corporation WiM tn: same corporate rights and 1
peUers; and finally, that by the conveyance from
the Trustees to the respondents, the right to lease
passed, as an incident annexed to- part Of, the
franchise conveyed to them and therefore, that the
contract Of May 49, 1870, was not made without /
consent OF the Legislature, and without any warrant
and lawful authority therefor" alleged in the in
formation, ndjudgment for the respondents should
be entered.
Thos B. Reed. Davis & Drummond.
-.f- A. Libby.