The Portland daily press., 1888-07-19
In Board OF Mayor and AIdermer

| the lease Of the Portland & Ogdensbur0 rail-
road to the Maine Central
In Board OF Mayor and Aldermen.
Mayor Chapman presided. and the full
board was in attendance. The Mayor stated
| the purpose Of the calling of the meeting.
and read the following communication from
President Sewall Of the Maine Central rail-
road:
Hon. Charles J. Chapman, Mayor Of the Cay of
Dear Sir: Ibeg to enclose herewith copy Of
draft for lease OF the Portland & Ogdensburg
their meeting yesterday, approving the same and
authorizing its execution on behalf OF their com
Trusting that this matter will receive early ac-
ton ON your part, am,
ARTHUR sEwALL.
The communication was received.
| The report Of the Recorder Of the Munich
pal Court was received and ordered on file,
An order was passed authorizing the com
mittee on building to rent a room Of the
building at No. 40 Free street for a ward
room for Ward A.
Petitions referred to the committee on new
wooden buildings, for permission for the
erection Of buildings. were considered by
that committee which recommended the
| granting the same.
Papers from the lower board were laid on
the table in non-eoneurrence.
The petition Of A. H. Smith for Ss.14 for
| damages was referred
| Alderman Smith presented petitions Of O
number Of citizens who protested againstth
erection of board fence for a bill board
around the site of the lot at present occupied
| by old City Hall. The petitions were laid on
the table and Will be taken up at the next
meeting Of the city council.
The petition of w. G. Davis and others for
the widening OF part Of Franklin street
was referred.
An order directing the electric light COM
pany TO remove the stump of aspole In the
sidewalk near the Custom House was passed.
A message from the lower board request
ing a joint convention for the purpose Of con-
sidering the lease was received and the two
boards went into joint convention.
In Joint Convention.
The Mayor called the convention to order,
and City Clerk Burgess read the lease. After
the reading Of the lease 1t was voted to listen
to statement Of City Solicitor Symonds con-
corning it. He said:
JUDGE sYMoNDs's REMARKS.
l am little at a loss to know what Is de-
sired Of me, but suppose the fntention is
for me to call the attention Of the city coun-
ell to matters in the lease which seem 10 me
to be objectionable. might say In the first
place as to the authority for giving this lease
that understand that so far as the legfsla-
tlon in Maine Is concerned, the Maine Cen
tral has authority and the Portland Il Og-
densburg has authority to give it. So far as
tne location OF the road Is concerned. / am
not aware, and the counsel for the road have
not called my attention to any special legis-
tion authorizing such lease, but the general
law Of New Hampshire authorizes, in INV
Judgment lease like this, provided it Is rat
hV a txuO- frdo fNrtkw 80
ders Of the contracting companies OF course
the question arises at the outset whether the
city in this matter desires TO give lease
for SO long period, as 1t Is practically
pepetual lease of the property.
Now in the very first clause Of the lease
Is contained the following "And all its
right, title and interest in and to all other
property OF whatsoever nature, and where
soeyer situated" II seems to me that Is too
broad. The p. Il o. is not going to give
up its corporate organization, but Is going
to continue to exist and its records. and
everything belonging to it incidental TO the
maintenance Of the corporation is leased by
this clause. For Instance, its corporate rec
ords and any other property incidental to
the maintenance Of its organization. I
thought that clause ought to have been lin
ited to ''all other property in any way con-
nected with the use and operation Of tine
railroad"
Then, in the first condition, ION page 81
there have been made. to my mind, some
what radical changes from the lease as frst
drawn. 1t reads well, but think the ex-
preston is somewhat obscure. Take for in
stance the last part Of the sentence ''that it
will use all reasonable efforts to give 10 the
city OF Portland as favorable terms for such
business as are given to other Atlantic cit
les" | suppose the construction Of that
would be as are given by the Maine Central
railroad. 1t is speaking of its own business,
and then t provides that 1t will use all rea-
sonable efforts to give to the city as favora
afy e.
other Atlantic cities. ! do not suppose Ii
means as are given by other roads: the con-
text does not seem to imply that. Now there
were provisions that no discrimination
should ever be made against the city Of Port
land, that no combination, consolidation or
contract should ever be made to deprive the
city Of Portland Of the benefit Of compett-
i've rates, and other provisions which have
been eliminated from the lease as it is here
presented. and think an obscure expression
has been substituted. 1 am aware that in
regard to all clauses Of that sort in railroad
leases great deal must depend upon the
the corporation with which you are dealing.
than the letter OF the contract, but still /
think that ought not to be obscure. Now,
at the close of the third section it provides
that s'the said lessee may from time to time |
with the consent of the lessons, board of di- /
rectors, sell and dispose of the property not /
required for the operation and use Of said |
railroad as herein provided and apply the
missed property; and the president of the |
lessee for the time being Is made the attor- /
ney Of the lessor to execute jointly with the |
lessee In the name Of the lessor, all convey |
ances of property hereby authorized to be |
conveyed when such conveyance shall be
ordered by vote OF the board Of directors Of
said lessee" think that should also pro-
vide that 1t should be with the consent Of |
the lessor.
Passing to the proviso at the end of clause
8, the agreement or condition is, to my mind,
seriously Objectionable. So far as 1t depends |
upon my advice as lawyer, and as counsel |
for the city, should advise against accept |
ing the lease with that proviso in it. The |
clause guards against the assignment OF this |
lease by the lessee without the consent OF |
the lessor. The idea Of it being that il the |
city was disposed to entrust its property to |
the Maine Central Railroad ii might not |
want to put II into other hands without its |
consent. The first part Of the eighth sec |
tion provides for that and then, to my mind, |
the proviso takes away all the force Of the |
prohibition previously given, because 1t pro. |
vides that In the event Of the lessee leasing |
their system to, or consolidating with, any
corporation operating a connecting railroad, |
or system Of railroads, the lessees interest In
the demised premises shall pass by such
lease or contract of consolidation" In the
new consolidation Of roads the Maine Cen
trails interest under the lease at onre passes
to the new lessee without any action Of the
lessor or any consent on the part Of the city
may 60 into the hands and possession Of any
corporation, whether II is one which the city
would consent TO have charge of the prop
erty or not Now II an entirely new and diff
ferent combination Is to be made hereafter |
think it ought to be made only with the con
sent of the lessor. To my mind there is an
other objection to that. The Maine Central
Railroad Company make a good many coven-
ants and agreements in this lease, and, by
the provision Of that clause, If they lease
their system to other parties their interest In
the lease passes to the new lessees. The
question Is whether the Maine Central is still
holden on its covenants in the lease Does
| 1t not become the duty of the new lessee to
perform those covenants, and not the duty Of
| the Maine Central Railroad? / am not clear
| in my mind but that. If the Maine Central
| should make a consolidation or lease, It
| would be claimed under that proviso that
| the obligations of the Maine Central Rail-
| road under the lease were at an end, and SO
| far as | am called upon for any legal ADVICE, |
| | should advise against accepting a lease
| with that proviso in it. -, -,
Now the ninth section specineS tne conul,,
| tons under which the lessor may enter ana
| assume the possession Of the properly Ior
| breach of condition. Originally, any detault |
| on the mart of the lessees in the performance |
Of their contract gave the lessons a right to |
| enter and resume possession. The council |
Will ohserve that now the right OF the lessons
/ Ia fad M