Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1895-06-14
ADVERSE DECISION
CONTINUED from LIST page. |

q location in one portion of Il street, when
wo should not be willing to do it in
different location.
Public convenience might be subseryed
by location on one side, or in the cen
tire of street or way, while it might be
almost absolutely destroyed by location
in another portion of the street.
We are made to feel more certain of our
position in this respect, because the use of
streets and railways for the purpose of
Electric railways is inconsistent with the
primary purpose for which they were
origially dedicated. This use can only be
made of such streets and ways by author
ity Of the Legislature. In this case this
authority is delegated by the Legislature,
to some agency. 1t cannot be that it has
chosen two agencies. 1t has not authorized
both the municipal officers of towns and
cities, and the board of railroad commits.
sioners, to exercise this power. If so,
there might, and probably would arise, at
once, conflict of authority.
We believe the Legislature has dele.
gated this authority to the board of rail
road commissioners, to be exercised on
certain conditions; and one of these con-
ditions is that it shall be exercised only in
such streets and ways as are approved by
the municipal officers.
We might rest our decision here. but
we prefer to examine one other objection
to this location, as we feel that the petit.
tioning corporation is entitled to have il
done. The experimental stage of an cleo
trio street railway system is passed. 1t
has fully established its rights in the
streets, from commercial standpoint,
and the courts haze recognized it's rights
from legal standpoint. Ever since the
hackney coaches were prohibited on the
Kings highway in the reign of Charles
II, all innovations upon the conventional
use of public streets and ways have found
opponents and critics.
Whether the electric railway has como
to stay in this country, we have no occa-
sion to express an opinion. They have
come, in this State, by force of the man
date of the Legislature, which is the
sovereign power. The Legislature has to
some extent, wisely or unwisely, com
mitted certain matters concerning them
to our jurisdiction. So far as we are
directed by statute, we must follow it.
In Finch VS.. Riverside & Arlington Ry.
Co., 81 Cal, 597, a statute OF the state
provided that street railway tracks must
be constructed as nearly as possible in
the middle of the street.
The company laid their track on one
side of the street. There was testimony
10 lding to show that it was impracticable
to lay the track except in the place where
it was laid. But the court says that it has
no power to authorize track to be laid
where it was prohibited by the statute.
The court says: "As matter of course
it is always physically impossible to lay Il
track in the middle of the street. and any
unauthorized laying of such track any
were else, is an unauthorized obstruction.
In this State we find no statute limit
ing the location to any particular portion
of the street. The only limit put upon
the location in the street is, that before it
Is laid 1t must be found affirmatively by
the board of railroad commissioners, that
public convenience requires tho construc
ton Of such a road in the proposed loca-
ton. In this case we do not find any loca,
ton fixed by the petitioner, as we have
before stated; but upon examination of
the route as pointed out to us, we find it
Is proposed to lay double tracks, in certain
streets which are SO narrow that when the
tracks are laid. there will not be space on
pass and rcpaSs.
Perhaps, according to the ''letter of the
statute" we might approve such loca-
ton. We feel constrained, however, to
say that such location is not within the
spirit of the statute, and would be unjust
to the public at large, who arc entitled
to travel over these ways with teams.
We are informed that tho abutting
owners on these streets have given their
consent in writing. But the streets and
way arc not alone for the citizens of South
Portland. Any citizen Of the State has
right to pass over them.
Section SO of chapter Is of the Revised
Statutes provides that highways, town
ways and streets, shall be kept in repair
SO as to be safe and convenient for travel
ers, with their teams and horses. "
We do not see how narrow street,
covered with steel rails for electric cars,
can be considered convenient, to leave
out the element of safety, with no space
at either side of the rails for teams to turn
off from the rails into the travelled part OF
the street or way. We feel that If we
should attempt to authorize the laying CT
SO any rails in narrow street, as TO
practically exclude travellers by any other
mode of convenience, the court would be
justified if it intcrfered, on the ground
that we were not using our discretion, but
were abusing it.
When the Legislature gave the board oil
railroad commissioners discretion IN TINS
matter,pit must have intended to be a
legal discretion, and not a usurping one
1t may be said that the Legislature by
Its charter, gave the Portland Il Cape
Elizabeth Railway Co authority to lay
double tracks. We do not care to discuss
that, for the reason that in that charter
We're conditions in relation to paving ana
keeping in repair which we have no power
= to impose here Besides the Legislature
did not see the streets as we saw them,
and by the general law, upon which lts
proceeding is based the Legislature au-
turized us to form our opinion upon we"
Of the route and hearing upon It's inerls'
This we have one, and for the reasons
named, We do not approve the proposed
location, and do nos find that pubic con
venience requires the construction OF eh'
road named in said petition.
Dated at Augusta this 10th DAY o.
June, A. d. 1895.
Joseph B. Peaks, Benz. Is. Chadbourne