Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1895-06-14

4
State, to authorize a new corporation to
locate a 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
nave not time now to consider 1t. Assum-
Ing, however. for the purpose of this hear
ing, without deciding, that the board has
such authority, We proceed to further
consideration of the subject matter
We come now to very serious objcc-
ton to the granting of this petition, be-
cause we are unable to determine by the
petition Just what we are asked to an
prove. As this proceeding Is under n re.
cent statute, and this being the first
petition undor which we are called upon to
act We feel that it is proper to make some
general observations, and give general
idea of our construction of the statutes
authorizing the organization of electric
railway companies, under the laws of this
State
AS under this statute 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 its exercise
are wholly under the control and dscre-
ton of the Legislature, except So tar as re-
strained by the constitution This au-
thority may be given by special act to
natural person, OF to "a corporation, or
it may be given by general incor-
poration laws Tho Legislature cannot
divest itself of its sovereign power in this
respect, but in exercising this power il
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 do.
main to railroad corporations under
certain conditions and restrictions
This being q delegated authority can
only be exercised by substantial if not in
strict compliance to the statutes of this
State.
One eminent writer has said that "all
grants of power by the government are tn
be strictly construed and this is especially
true with respect to the power of eminent
domain, which Is more harsh and per
emptory In it's exercise and operation than
any other.
WIG tOuEb All ~ Ntll tOUSJNtTtu case,
uses this very strong language: AN act
OF this sort deserves no favor. To con
strue it literally would be SHINING against
the rights of property
This principle is so cngrafted into our
common law that any considerable cita-
ton of authorities would be mere affecta-
ton of learning. We call attention, how
ever, to the opinion of our court in Spot
ford, petitioner for certiorari, VS.. Bangor
Il Bucksport Railroad Company, 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 of the de-
PENDANT railroad company.
While we do not wish to adopt rule too
rigid in respect to these matters, prefer
ring 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 a proceedings before the
board under and by virtue of these
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 of
chapter 26S Of the Public Laws of 1898,
as amended by section | Of chapter 81 Of
the Public Laws of 1895, provides that
every corporation organized under the
foregoing provisions. before commencing
the construction of its road, shall present
to the railroad commissioners petition
for approval of location, defining it's
courses, 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-
ton as to street, roads 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 skillful engineer y
Has this been done?
The board then reviews the location as
proposed, and continuing, says;
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. If
this can be considered a location. it must
be in any and every portion Of the streets
and ways named in the petition.
We think the municipal officers have
ob'y w oPPipft bhC iout anu
location as to streets, roads or ways And
that it is left with the board Of railroad
commissioners to approve the location in
the streets and ways thus selected. The
statute does not require the courses, dis
tances and boundaries to be- filed with
the municipal officers. 1t does require them
to be filed with the railroad commission
ers, and for the apparently good reason
that to the board of railroad commission
ers is delegated the authority to say
whether public convenience requires the
construction Of the read in such ways and
streets, and in such location in said ways
and streets. We think the 'c)urses'
should be magnetic courses. The dis
tances' should be the distances of such
courses and the boundaries should be
the width of the location in said streets
and ways. and given, in such a manner
as will enable the board to determine just
where the track, or tracks or turnouts are
to be laid upon the face of the earth with
in said streets or ways This seems to be
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