Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-04-07

flying that | had used this percentage
when l had been Il commissioner.
At 2.45 Mr.. I:uker announced that the
case of the company was in with the
exception OF IL few questions which he
wanted to ask one or two witnesses
who were not then present. 1t was
agreed that they could be heard later,
and the appraisers then took up the
matter of the Admission OF the DeNinc
lease in evidence. upon which de-
cisiOn had been reserved for over q
week. Nj Ryder OF the commission
asked Mr. Heath il the Devine COM
pan$' by the lease had wholly disabled
itself from performing its public duties
Under its franchise. Mir Heath in re-
Ply said that the DeVine company,
without legislative authority, had
leased all its plant and property, SUCH
IS reservoirs, Fires, services, etc, but
had not leased its franchise rs such.
The company is able now to put III Il
ne% system here and do business IL
parts of the city. since its franchise Is
still it's own. But Mr.. Heath went on
TO show by the citation Of many cases
and reference to leading authorities
that 4 public service corporation mas no
right to sell or lease even Il small paft
Of its property without special author
ity. The DcVin~ Lease IS void and Il
legal" said MI death. for By 1t
the I,evine conn. ny has disabled itself
from performing public service upon
the streets where its pipes now are. us
public duty is upon ali streets, and 1t
cannot disable itself by leasing even an
inch of pipe line when that line has
once been i'll use"
In reply Mir. Itilcr spoke for two
hours. saying in substance: Il DO net
dispute the general rule of law as
quoted by Mr.. Heath. but | DO deny
that il applies 10 this particular case.
rs a general r,il" corporations can dis
rose of their property by vote of stock
holders. Some corporations, notably
railroads. are exceptions to this rule.
Docs the Dcviuc company come under
the rule, c" is it an exception: TIE
cinrtcr of tho Dcvinc company gave 1t
only the limited power Of eminent DO
main in the single matter of rights Cl
way. This power Was never exercised.
and the DcNinc company has never done
anything which an Individual might
not do. It's charter Gavn the company
no rights which the private owners
had not had previously. Any indi"idu-
III, b. consent Of INC city government
may Inv pipes in the streets. Before
its c;,artor tho Dcyinc company WAS
maintaining tho same system of pines.
which it later maintained and leased as
Il corporation. Hy becoming incorpor-
&tcd. did tn"sc owners lose the power
to sell or lease? 4 chatter gives new
rights rather than takes away existing
rights. They did not sell or lease any
thing which they could not have sold
or leased as individuais before getting
the carter. They held al the proper
ty in fee before getting the charter. A
Railroad company cannot alicnat" its
property because under its charter il
owes duties to the state which tho
State can compel it TO perform. How
different is the case Of the owners Of
these Dovine springs and pipes. M
.i;ldTc would issue y writ of naEdlmu'
"a compel %uCil 4 waite: company to
cuHtilrr its business. Tho DOWN"
system mover was and mover could he i
competitor Of tho .NuT;Iet water COM
pany It's Sur;'ly Of water is suitable
and adnpllnte only for drinking pur-
poses. ana il merely supplements til"
surrlv Of city wafer. i:1!t oven il the
Dcy-inc tompany falls under the Samo
class; Of corporations AS railroads. ii
has not disposed Of anything by tho
lclso which prevents il from doing
business under its charter. The lease
has not even an implication that the
fr.uc',i+c is disposed Of. The company
ro1,!1. TO-DAY. acquire now springs iuy
now pipes ana supply the city with
ysai"-. An ordinary water Comra"v
might fil urdcr the general rule
nlnng with railroads. hut the case with
The !jcvi:.r COMPANY is altogether dif
fcr"nt. /! had tho right to lcas" its
property. and the lease is legal. Even
if il were Illegal. an act Of tho J"@is-
latIra would maze it r2lid ana All acts
'!t,dor it valid from the beginning. Thus
M tf:rco grounds this lease should be
admitted III evidence: On Tho DcVine
Water COM any is mot 2 public "e"vicc
corporntinf: (21 its lease did not dis
able II. ana go the Lease is capable
Of ratification"
70 these now propositions, Mr.. Heath
r"ulia,l that The charter of the Dnyine
Cnmnauy gave il 4" !:cr"h mower rs the
Augusta Water Company got unae- its
charter. ara Il rs mCc'! - public SER
yico CORPORATION. lie declared it 70 be
the settled law in Maine that the power
10 ll.e the public streets for pines is
found only in 4 grant from the State:
ana that no Individual cGuli lawfully