Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1901-06-01
STATE OF MAINE.

course open to them. The decision in
full follows:
STATE OF MAINE.
In Board of Railroad Commissioners
Upon the foregoing petition, all the
notices having been given as ordered
the board met at the time and place
mentioned in said order.
Mr.. II. NJ. Heath appeared for the
petitioners
Mr.. Enoch Foster appeared for the
citizens of Freeport.
MIR. Seth M. Carter and Mr.. s. e.
Perry appeared for the Maine Central
Railroad
Inc board heard the testimony pre-
scented at, the hearing by the parties to
the proceeding. and adjourned to meet
1T Dover on the 18th day of Nav a. ID.
1901, where the hearing was concluded.
The Portland and Brunswick Street
Railway was organized as corpora
tioh by filing articles of association
with the board Of railroad commits
Sioners, which articles Of association
were approved on the twenty-sccond
day of April a. D., 1901.
This is petition under Section 6 Of
the L. l.. of 1893. Chapter 26S, as
amended. for a location of a street
railway from Brunswick to Yarmouth
asking that the railroad commission
ers will approve said location and find
that public convenience requires the
construction of said railroad.
Numerous objections have been
raised against the legality of these
proceedings. which objections need not
SfD Tod
them are considered in this decision.
IL Is objected first that the approval
of the location as to streets. roads and
ways by the municipal officers in the
town of Yarmouth. is not in compliance
win the statute, because il contains
conditions which the town officers have
no authority to impose, in relation to
the repair and future maintenance Of
the ways and bridges. We have OK
amined large number of cases where
the courts of other states have passed
upon this question, and while we find
many cases in which it is held that
the municipal officers have the right to
impose conditions. we also find that
THESE cases are in states where this
right is expressly reserved to said
municipal officers. either by the con-
stitutlon or the statutes.
In some cases a distinction Is made
between conditions precedent. and con-
dltions subsequent: and these cases
hold that while the former may be
imposed. the latter cannot be.
We do not deem it necessary in this
case to indulge in the refinements of
the law as to the effects of conditions
precedent and conditions subsequent
We believe that no approval of the
municipal officers as to streets roads
and ways should be burdened with
conditions which conflict with the
authority of the board of Railroad
commissioners, which is given by
statute, in the matter of the location
for the very good reason that by the
statutes of this state, the right to
impose conditions is not reserved to
the municipal officers. as il is in many
other states. Besides, it is provided
by Section 6, of the general laws that
if the municipal officers neglect for
30 days, after application in writing
to approve a location, as to streets.
roads and ways, the company has the
right to appeal to the supreme judi
cial court. and the matter is then
cipal officers. and delegated to a COM
mittee appointed by the court, who
shall fix a location. and report the
same back to the court; which location
shall be certified to the railroad com
missionerS. and received by them in
lieu of the approval of the municipal
officers.
We cannot, therefore, COncede that
the municipal officers of Yarmouth
have the right to impose conditions.
both precedent and subsequent. as
they have undertaken to do in this
case. In addition to this we have had
filed with the Board of Railroad Com
missioners a remonstrance from one
of the selcctmen of Yarmouth. 10
gether with $50 legal voters OF SAID
town. protesting against the location
across the bridges in Yarmouth. even
with all the conditions which the
other two selectmen have undertaken
to impose.
But there are still graver objections
! to this proceeding.
By Chapter 300. Private and Speciai
Laws of 1889. the Brunswick Electric
Railroad Company was incorporated
with a right to build an electric ran
road within the towns of Bruhswick
and Harpswell in the county OF Cuhi-
! berland, and Topsham in the county
of SagadahOc.
, There were certain conditions Ill the
original charter. none of whfch ser"
now to be Of any importance TO the
decision of this case. because sa'u
charter was amended in 1898. by ChaP
ter SAB. Private and Special Laws Oh
that year, which provided that sa'a
railroad shall be constructed anu
! maintained over such strects any.
WAYS i'm the town of Brunswick an"
Harpswell as the municipal Objects ~
said towns may from time to tin'e "e
termine.
That amendment was SUBJECT NJ" -
ever. to the general law. Chapter
Public Laws, 1893, Section To-
proyided that no corporation oi -
son shall be permitted to cohs.lu.' -
maintain any railway for sifhi'a' ~.
noses. over the streets. ROADS vi
that may be lawfully occuPic" ~
street railway in any city Oh
So that the charter OF tne aoa
wick Railroad Company as az" y, :,
in 1898 and subject to the ;,s
i, cd