The Portland daily press., 1895-06-14

provide that ''Acts of incorporation shall
be regarded as public acts. - And we
must therefore take notice of them with
out proof of their existence. Section 10,
OF that charter, so far as applicable to this
proceeding, reads as follows: No other
corporation or person shall be permitted
to construct or maintain any railway for
similar purposes, over the same streets,
roads or ways that may be lawfully occu-
pied by this corporation Z"
By section one of the said charter, the
said Portland and Cape Elizabeth Rail
way company, is authorized to construct,
maintain and operate by electricity or
animal power, a street railway in and
through the said town of Cape Elizabeth,
upon such streets, roads and highways in
said town as may from time to time be
fixed and determined by the municipal
officers of said town, and assented to in
writing by said Portland and Cape Eliza
beth Railway company. By an act of
the Legislature of 1895, that portion of
Cape Elizabeth in which the proposed
location is was set off from the town of
Cape Elizabeth, and has become the town
of South Portland. And as we have said,
the said Portland and Cape Elizabeth
Railway company has filed with us, its
release of any rights which they may
have by said charter, covered by this pro-
posed location, in the town of South
Portland
Whether, under all these circumstances,
the board of railroad commissioners now
has authority, under the statutes of this
state, to authorize a new corporation to
locate line of electric railway within
the streets and ways of South Portland,
is a question involving so much research
and consideration of authorities, that we
have not time now to consider it. Assum-
-. L G. e l.
hearing, without deciding, that the board
has such authority, we proceed to a
further consideration of the subject
matter.
We come now to very serious objection
to the granting of this petition, because
we are unable to determine by the
petition, just what we are asked to ap-
prove. "A this proceeding is under a re-
cent statute, and this being the first
petition under which we are called upon
to act, we feel that it is proper to make
some general observations, and give q
general idea of our construction of the
statutes authorizing the organization of
| electric railway companies, under the
| laws of this state.
| AS under this statue we may be called
upon to exercise the power of granting
the right of eminent domain, we observe,
| firSt that that power is vested primarily
in the legislatures of the several states.
This power can only be exercised by
virtue of a legislative enactment. The
time, manner and occasion of is exercise
are wholly under the control and discre-
tion of the legislature, except SO far as re-
strained by the Constitution. This
authority may be given by special act to
a person or to a corporation, Or it
may be given by general incorporation
laws. The legislature cannot divest itself
of its sovereign power in this respect, but
in exercising this power, it can select its
own agency or agencies.
In this state the legislature has con-
ferred its agency upon the board of rail
road commissioners, respecting the right
to grant this power of eminent domain to
railroad corporations under certain con-
ditions and restrictions. This right can
only be exercised by substantial, if not
strict compliance to the statutes of this
state.
One eminent writer has said that "all
grants of power by the government are to
be strictly construed, and this is especial
ly true with respect to the power of emil
nent domain, which is more harsh and
peremptory in its exercise and operation
than any other. -
One court in we'll considered case,
uses this very strong language: IAN act
OF this sort deserves no favor To con-
strue it literally would be SHINING
against the rights of property"
This principal is SO engrafted into our
common law that any considerable
citation of authorities would be mere
affectation of learning. We call attention,
however, to the opinion of our court in
Spofford, petitioner for certiorari VS..
Bangor and Bucksport Railroad COM
pany, 66 Me-, 26, which emphasizes this
principle by setting aside the proceedings
of the board of railroad commissioners in
authorizing the taking of land for the
use ofsthe defendant railroad company
While we do not wish to adopt a rule
too rigid in respect to those matters, pre-
ferring to give such construction to the
statutes as will carry into effect the mani
fest purpose for which they were enacted,
we do feel that in all proceedings before
the board, under and by virtue of the
statutes, there should be full and sub
stantial compliance with their plain pro-
visions
Applying this principle to the statute
under which we are called upon to act in
this proceeding, we find that section 6, of
chapter 26S, of the Public Laws of 1893,
as amended by section l, of chapter 81, of
the Public Laws of 1885, provides that
"eyery corporation organized under the
foregoing provisions, before commencing
the construction of it's road, shall present
to the railroad commissioners a petition
for approval of location, defining it's
course, distances and boundaries accom-
panied with map of the proposed route
on an appropriate scale, with the written
approval of the proposed route and loca-
tion as to streets ands or ways of the
municipal officers of the cities and towns
in which said railway is to be constructed
in whole or in part, and with a report
and estimate prepared by skilful engi-
neer."
Has this been done? The location of
| the route as to ways and streets and the
| courses, distances and boundaries is
given.
(Here follows the detailed location of
the road as previously published in the
PRESS
We do not consider the courses, dis
tances and boundaries here given, to be
such compliance with the statute as
Will authorize us to approve the location.
Ii this can be considered location, it
mn rIrf tnf,f