Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-04-15
general or special law of this state or

| StHtIdI vi SpeCidl law VI ii4'' S'NNN "a
otherwise.
July 90, 1891, the Maine Water Com
pany executed a mortgage to the Maine
| Trust and Banking Company rs trus-
tee for bond holders and all other in
terested parties of its entire property
lacuuired from the Waterville Com
pany. with all additions thereto, to-
gether with several other similar
properties located in various places in
| Maine ana New Brunswick to secure
first consolidated mortgage bonds OF
said Maine Water Company to the
amount Of $2,000.000, Of which bonds
$J82,000 are outstanding, and of the
remainder of such bonds there are re-
tanned by said trustee 100000 for fu-
ture purchases of water plants by said
! Maine Water Company and $9lS,O0O
| for refunding OF first mortgages on va
rious water plants covered by said
mortgage.
| December 81, 1897, said Maine Water
Company. executed to said Maine
Trust ana Banking Company second
mortgage Of the same property TO Sc
cure 5000. 000 Of second mortgage bonds
Of the Maine Water Company Of which
| $4,000, are now outstanding.
1t is objected by counsel for the
complainant that neither the demurrer
| nor parts Of the defendants answers
are sufficiently definite in their terms
to cover the points Of defense raised
hereunder. The case is important and
! we do not deem it advisable to decide
it upon mere questions of pleading.
| We shall therefore consider and de-
termine the clause upon its legal and
constitutional merits.
To provisions Of the legislative en-
actment creating the kennebec Water
| District and to the maintenance of this
! bin hereunder various constitutional
! objections are raised by the defence.
! First: It is contcndcd by the de-
! fence in behalf Of the Maine Water
Company that the provision in the
| charter Of he Kepnebcc Water Dis
| trict authorizin. the latter to acquire,
| hy the exercise Of the power of emil
nent domain. the entire plant. prop
! erty ana franchises, rights ana priyi-
lcges held by the former company is
| unauthorized and in violation of the
constitution Of the state.
Whether the public eXi%cncy re-
quires the takiu" of private property
| Tor public uses is a Legislative ques-
ton, the determination Of which by
the legislature is final and conclusive.
! Spring V. Russell, Me, 213; Allen V.
Joy, 50 Me, 12f; Concord Ry. Y. Gree
| ley. Il II. H., II. Whether the use for
which such taking is authorized is q
! public use is a judicial question for the
| determination Of the court. Allen Y.
Joy, supra; Talbot Y. Hudson, is Gray,
| AZ: Concord Railroad ". Greeley,
supra Olmsted Y. Proprietors of Aque-
duct, n N. J. l.. 5l1. The supply Of
water to the people Of q municipality
or territory is everywhere recognized
as a public use.
II is to be observed that neither the
charter of the Waterville Water Com
| pany nor that of the Maine Water
! Company confers exclusive franchises
or rights upon their respective cor
porations, so that the Legislature in
granting the charter of the Eennebec
| Water District was, in that respect
under no restriction or embarrassment
The power of eminent domain is not
| created BY constitution or statute II
| is an inherent attribute of sovereignty:
| it existed in the sovereign long before
| the adoption of any constitution. me
| article in our bill Of rights, Art. 1
| See. q. declaring that, Private prop
erty shall not be taken for public uses
without just compensation nor unless
public exisencies require il" does hot
confer the power but by implication
recognizes it as existing in the State.
The sovereign power of the State, by
which Isl meant the people of the State
in their sovereign capacity, acting
through their representatives,, the
| legislature, possesses and has the right
| to exercise the great power of eminent
domain over all the private property
and property rights within the limits
of the state of whatever nature, cor
poroal or incorporeal and by whomso-
ever owned, whether by individuals or
corporations. The property Of a cor
| poration is not exempt from the exer-
else Of this power, even though it may
have been granted exclusive fran
chises ana privileges. a legislature in
granting charter. cannot even by eX-
press terms, however strong may be
the language used, preclude another
legislature, or even itself, from eXer-
cising the sovereign power of eminent
domain over the charter thus granted
and the property and rights acquired
hereunder. The legislature cannot
barter away the sovereign power of
the State. All grants by the State
whether of property or rights or fran
chises are subject to this power.
Though the granting by the legisla-
ture Of a charter to a corporation and
its acceptance by the corporation may
be regarded as a contract, the subse-
qucnt taking of the franchise and
property of the corporation or public
uses is not an impairment Of the obli-
cation Of the contract. The provisions
for just compensa ton for the fran
rhiac. as well as for the property ana
other rights so taken, is recognition
of the contract.
The principles here laid down are
sustained by the text writer's and by
the decisions of the courts in cases
where the question involved have been
adiudged by the courts.
Judge Cooley (Const. Linn. 5th Ed,
3tl) says: 1T must be conceded under
tho authorities, that the state may
grant exclusive franchises but
| y.yixr y-riIt