The Portland daily press., 1895-06-14

of streets and ways for the purpose OF
electric railways is inconsistant with tne
primary purpose for which they were
originally dedicated. This use can only
be made on such streets and ways py
authority of the legislature. In this case
this authority is delegated by the leglsla-
ture, to some agency. 1t cannot be that
it has chosen two agencies. 1t has noI
authorized both the municipal officers OF
towns and cities and the board of railroad
commissioners to exercise this power. II
SO, there might, and probably would
arise, at once conflict of authority
| We believe the legislature has delegated
this authority to the board of railroad
commissioners, to be exercised on certain
conditions; and one of these conditions 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
petitioning corporation is entitled to have
it done. The experimental stage of an
electric street system is passed. 1t has
| fully established its rights in the streets
from a commercial standpoint, and the
courts have recognized its rights from
coaches were prohibited on the Kings
highway in the reign of Charles IL, all
| innovations upon the conventional use
Of public streets and ways have found
opponents and critics. Whether the
electric railway has come to stay in this
country, we have no occasion to express
an opinion. They have come in this
state, by force of the mandate of the
legislature. which is the sovereign power.
The legislature has, to some extent,
wisely or unwisely, committed certain
matters concerning them to our jurisdic-
tion. So far as we are directed by statute,
we must follow it.
In Finch vs. Rinerside and Arlington
Railway company 81 CAL, 597, statute
ofithe state provided that street railway
tracks must be constructed as nearly as
possible in the middle of the street.
| There was testimony tending to show
that it was impracticable to lay the track
except in the place where it was laid.
But the court say that it has no power to
authorize a track to be laid where it was
prohibited by the statute. The court say,
las matter of course it is always
physically possible to lay track in the
middle of the street., and an unauthor-
lied laying of such track anywhere else,
is an unauthorized construction.
In this state we find no statute limiting
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, it must be found affirmatively by
the board of railroad commissioners, that
public convenience requires the construc-
tion of such road in the proposed loca-
ton. In this case we do not find any
have before stated; but upon examination
of the route as pointed out to us, we find
it is proposed to lay double tracks in GER
| tain streets which are so narrow that
when the tracks are laid there will not be
space on either side of the tracks for
carriages to pass and repass.
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 are entitled to
travel over these ways with teams. We
are informed that the abutting owners
in writing. But the streets and ways are
not alone for the citizens of South Port
land. Any citizen of the state has a right
1 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
| travellers, with their teams and horses"
| We do not see how a 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 hat if we
showed attempt to authorize the laying of
SO many rails in narrow street, as to
practically exclude travellers by any other
mode of conveyance, the court would be
justified if it interferred on the ground
that we were not using our discretion,
but were abusing it.
| When the legislature gave the board of
/ t1,,ao ct<r,n n in,
this matter, it must have intended, to be
legal discretion, and not an usurping
one.
1t may be said that the legislature by
it's charter, gave the Portland and Cape
Elizabeth Railway company authority to
lay double tracks. We do not care to dis
cuss that, for the reason that in that
charter there were conditions in relation
to paving and keeping in repair. which
we have no power to impose here. Be-
sides, the legislature did not see the
streets as we saw them, and by the
general law, upon which this proceeding
| is based, the legislature authorized us to
form our opinion upon view of the route
and a hearing upon the merits. This we
have done, and for the reasons given we
do not approve the proposed location, and
do not find that public convenience re-
quireS the construction of the road named
in said petition.
| JOSEPH b. PEAKS,
BEN. +. CHADBOURNE,
FREDERIC DANFORTH,
Railroad Commissioners.
Dated this 18th day of June A. D., 1895.
| What Mr.. Krutz Says.
Mr.. Thomas Krutz who represents the
controlling interest in the Portland and
Cape Elizabeth Electric railroad, said
last evening that the decision as rendered
a surprise to the company. The compa-
ny has not decided what course they will