Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1915-05-21


n1ine- Said board NAY require tbs
officers Of The railroad company and
Ct tie municipality 10 attend & hear
ing II the matter after such notice
o. the hearing TO all parties in inter
est IS said board may deem proper
Said cornnD ssoners shall determine
Al such hearing the repairs, renewals
or strengthening of parts. or If neces-
sary, the manner of rebuilding such
bridge required 10 make the same
safe for the uses TO which il is pm.
They shall determine who shall bear
the expenses Of such repairs renew
ais. strengthening or rebuilding, o.
they may apporlion such expense be-
tween the railroad company and the
city or town as the case may be, N
such manner as shall be deemed by
the board just and fair. and shall
make their report as hereinafter pro-
yioed'
The evident purpose Of the Legislat-
IRE in enaeIing the foregoing section
was 10 give 10 this Commission ttcr-
nerIy The Railroad Connission) au-
tto-ity 10 determine whether any
bridge. erected by { municipality and
used by street railway. is al all
times safe for the use Of the travelling
public The Statute does not proYio :
for any petition, but makes II the duty
Of the Commission 70 inform itself
as 10 the condition Of any bridge. and.
i. found 70 be unsafe. cause the mu-
ricipaIity and the railroad 70 attend
hearing and receive instructions as
10 the manner in which the bridge Is
10 be made safe. II is true thar the
Statute provides for an apporrion-
Dent OF the expenses. bu. there can
be no ~appo-r;onnent' until there has
bean q finding Of an unsafe condition
and an order for repairs made. Can
We, therefore, have jurisdiction as .
The appor;ionmen, o. expense when
the parties, by their own acts and
agreements. have taken from the
Court provided by Statute the Juris-
dictional foundation upon which the
authority 70 appor,ion the expense
rests?
The Commission has not. Of its own
motion. proceeded under the Statute
10 determine the condition OF This
bridge as 20 safety or 1he repairs nee
interested parties, by petition, aske !;
Us 20 act under the Statute as ID
these matters They have simply
done what they perhaps had q right
TO DO. viz: Agreed thai the bridge
was unsafe: what repairs were nsces-
sary: that they should BE- made by
the ci-y: and the expense 10 be ap-
portionec in manner later 10 be de-
terrnined. All but the last has ac-
cording 10 the lending petition. beer
carried OUT according 70 agreement,
The parties have had falling out as
70 this last. and now we are asked IN
hold q posI-morter2 as 10 the things
which have passed on without an op-
portunitr TO view the TeIIa3nsD and
determine hon the funeral expenses
shall be borne by The so-rowing reIa-
t:ves
II tire rartles agreed that tte mem
bers Of the Commission. as individuals
and sitting IS referees. should decide
this matter Of apportionment- we
gould act but. even Il the parties
consented that we might take lur-s
ciction under the Statute. We should
still have to inquire as 10 our author
.ty The answer would be land isl
found in long line Of decisions hold
ing that Jurisdiction cannot be con
ferred By consent tsee Nillken W.
Mercy. s. re. 3.0). and thai the es-
san-:als q jurisdiction are power ove-
the parties and the subject matter
,Aierrill ". Curtis. . Ne. H.; Adams
w. Macfarlane So Ne. 143)- AS this
case nov. stands. there IS no -subject
matter" !. e. Z bridge n an unsafe
condition requiring now certain re-
pairs and Strengthening q parts 10 be
specifically designated ny rs no~-
II the City Of Augusta mas expended
i,s u7o-e- By virtue OF valid agree
nrent with this railroad, which agree
ment the railroad refuses 10 carr
cut. j, is not unlikely tina, court
having jurisdiction, IN proper action
will award adequate damages for this
breach Of contract.
But We are satisfied We have n
Jurisdiction, and il IS
ORDERED. That the petition be
dismissed for the reasons set forth in
the amended motion.