90 Me. 80 | Me. | 1897
Fifteen tax payers, in the county of Washington, seek by this bill to restrain the county commissioners and county treasurer of Washington county from any further payment to the Washington County Railroad Company, upon the county’s subscription for 1500,000 of the preferred stock of the railroad company. The complainants claim upon several grounds that the county has been released from all liability.
It will be noticed that the act of 1895 refers to the original charter, as chapter 54 — when it should have been 454. Chapter 54 was an act in regard to larceny. But the act extends the time for the construction of the “ Washington County Railroad Company” incorporated in 1893. The only act of incorporation of the Washington County Railroad Company in that year was by chapter 454. The latter act identifies the railroad, eo nomine, and it would be puerile to hold, that, because of the mistaken number of the chapter, the later act did not apply to the original charter of 1893. Woodworth v. Grenier, 70 Maine, 242. By chapter 91 of
It will be noticed that the charter of the railroad gives its termini as “some point on the Saint Croix River in the city of Calais or vicinity ” and “ some point on the Maine Central Railroad in Hancock county.” There is no other direction oe limitation upon its location, other than it must “ pass through the counties of Washington and Hancock by such route as the directors may select.”
When the vote to take preferred stock was had, no location of
The vote of the county having been canvassed and declared by the county commissioners and properly recorded on August 15, 1895, the railroad company on September 5, 1895, made a contract with George P. Wescott and James Mitchell by which the entire line was to be constructed by the contractors for a price stipulated therein. Although the line had not then been located, the contract bound the contractors to build between the termini, through Washington and Hancock counties, wherever it might be located by the directors. They also bound themselves to conform
To hold their rights under this subscription, as provided in § 7 of ch. 91, special laws of 1895, it was necessary that the'work of actual construction of the road within the county of Washington should have been begun on or before January 1st, 1896. The bill alleges “that work was begun on said railroad about October 1st, 1895, and continued by said contractors (Wescott and Mitchell) in the towns of Machias and Jonesboro ” upon which the county commissioners paid to the railroad company over twenty-two thousand dollars, in accordance with § '6 of c. 91, which required a pro rata payment by the county upon its stock, when the company “ shall have graded any section of five miles of its line.” At this time the line had not been actually and finally located, but it was known where the-line would be, at the place of this work, and the subsequent location in fact is identical with it. The evidence shows that about seven miles of the road had been graded by Wescott and Mitchell under their contract prior to January 1st, 1896 — and that prior to that time the contractors had expended in the grading and right of way over forty-five thousand dollars and
The rights of the parties had now become fixed, and if the contractors had proceeded with the construction of the road, the corporation would have been entitled to receive and the county bound to pay under its subscription, for every section of five miles graded, the pro rata amount provided for in § 6 of c. 91. The contract of Wescott and Mitchell described the line, as running through Ilobbinston, Perry and Pembroke to Dennysville, although no actual location had then been made by the directors. They undoubtedly contemplated locating it through those towns, and in March, 1896, the directors did regularly locate the line through those towns to Dennysville, and from thence to the Maine Central, which location was duly approved by the railroad commissioners.
Meantime Wescott, one of the contractors to construct the road, becoming sick, utterly refused to proceed under the contract. The railroad company then had the right, by suit to recover damages for breach of the contract, and the county commissioners could have resorted to a suit upon their bond. But all parties desired the road to be built. These suits would not have accomplished that result. In this dilemma, the railroad company made a new contract for the construction with James Mitchell for the same cost, and practically upon the same terms and conditions; who gave a bond to the county commissioners, with sureties satisfactory to and approved by them, for the performance of his contract; and this substituted contract and guarantee was accepted by the county commissioners in lieu of the first contract and guarantee. Under the new contract and guarantee the county commissioners and the railroad company had reason to believe that the actual building of the road was assured. It could make no difference to the county by whom the work of construction was done if the cost was not increased. The important and greatly desired object was to have the road built.
Complainants earnestly contend that tbis change of contract and guarantee was unauthorized, and released tbe county from its subscription. Tbe objection does not impress us as valid. On tbe contrary, under tbe circumstances of tbe case, tbe directors acted wisely in making a new contract to insure the construction of tbe road instead of resorting to a suit for damages, under tbe contract. Tbe commissioners would bave encountered tbe same practical difficulty in a suit upon tbe original bond.
Before any work was done upon that portion of tbe line between Calais and Dennysville, tbe directors found that tbe great cost of grading tbis road through Bobbinston and Perry, endangered tbe success of tbe enterprise, and that a route from tbe Saint Croix in Calais through Baring and Charlotte to Dennysville could be graded at a saving of at least one hundred thousand dollars, without increasing tbe distance, or lessening tbe usefulness of tbe road as a through line to tbe Maine Central. They therefore deemed it wise, for tbe interest of tbe railroad, tbe county and tbe state to change tbe location through Bobbinston to one through Baring and thence to Dennysville, — a distance of about twenty miles, — no change of location from Dennysville to tbe Maine Central, a distance of about eighty miles was contemplated or made. Accordingly the directors abandoned tbe former location from Calais to Dennysville, and located a new line to Dennysville, through Baring and Charlotte. Tbis location commenced at tbe Saint Croix and Penobscot Bailroad in Calais, on tbe bank of tbe Saint Croix Biver at a point about five miles westerly of tbe eastern
It is strenuously urged by the complainants that the change was unauthorized — that when the first location had been made and approved, that the delegation to the railroad company of the right of eminent domain, under the charter, had been exhausted; and that if the railroad shall be constructed upon this line under purchase of the right of way, it is such a deviation as absolves the county from liability under its subscription to stock.
It is true, that in many cases, the exercise of a granted power is once for all. But aside from statute, the better opinion now is, as to railroads, that the exercise of the right of eminent domain is not exhausted by the first location. Railroads are of great utility to the business of a community. They generally attract population and new industries along their line, and to meet the necessities thus produced, and to afford greater service to the people, it becomes necessary, from time to 'time to have enlarged terminal facilities, new stations, sidings, etc. These needs cannot always be foreseen —and if they could, it might be difficult or impossible to raise sufficient funds to provide for these future demands at the inception of the enterprise; and accordingly it is now held that the right of eminent domain continues in the corporation, unless
This court has held that a railroad company cannot condemn land for an extension of its road, after tbe time limited in its charter for completing the road. Peavey v. Calais R. 30 Maine, 501. But this doctrine is not inconsistent with the right of a railroad company to condemn land for necessary stations and sidings as the necessity therefor may arise. But the matter is regulated in this state by statute. Revised Statutes, c. 51, § 6, relating to railroad corporations created under the general law, provide that the location of the route shall be presented to the railroad commissioners, and also filed with the county commissioners, and if the railroad commissioners approve the location, and determine that public convenience requires it, the corporation may proceed with the construction, “but the locatipn so filed shall not vary, except to avoid expense of construction, from the route first presented to said board of commissioners unless said variation is approved by them.” This section is made a part of the charter of the Washington County Railroad. Under it, it is obvious that a variation from the original location, to avoid expense of construction, which is this case, could be made, subject to the approval of the railroad commissioners. As this section applied only to .corporations created under the general law, unless specially referred to in the charter, and as many if not most of the large roads existed under special charter, the legislature in 1893, by c. 193, authorized any railroad corporation, under the direction of the railroad commissioners, to make any changes in the location deemed necessary ox-expedient, and fox- this purpose they were authorized to purchase, or condemn lands uxxder the right of eminent domain. While this statute is not in terms an amendment of § 6 of c. 51, it relates to the same subject xnatter, and being ixx pari materia should be construed with it. Collins v. Chase, 71 Maine, 434. It confers
It follows that the change in the location, as approved by the railroad commissioners, was authorized by law. All the provisions of law were complied with which were necessary to render it valid.
Such change did not release the county from its liability under its original subscription for stock. The second subscription was unnecessary. It was made from abundant caution, but it did not change or invalidate the first and original subscription. At most, it was a substitution of a subscription for one already in force, upon which the county commissioners took a guarantee to secure the building of the road under the new contract, and was within the power of the county commissioners, and binding upon the county. It neither enlarged nor changed the liability which the county by its votes authorized its commissioners to assume for it. It was not a new execution of a power once completely executed, but a re-affirmance of a former act, done by consent of parties, with full authority from the county.
It must be remembered that the charter was for a road from the Saint Croix, at or near Calais, through Washington and Hancock counties, to a junction with the Maine Central upon such line as the directors should determine. The vote of the county was to take stock in a road to be built under this general charter. No condi
This was known to the voters, when they cast their ballots, and to the county commissioners when they subscribed for stock. If the vote or subscription had been upon a condition, the subscriber would not be held if the condition had not been performed. Railroad v. Brewer, 67 Maine, 295. But here there was no condition. In such case a change in the charter does not relieve the subscriber: South Bay Meadow Dam Co. v. Gray, 30 Maine, 547; nor does a change or extension in the route. Agricultural Branch R. R. v. Winchester, 13 Allen, 32; Nugent v Supervisors, 19 Wall. 242; Cantillon v. Dubuque R., 78 Iowa, 56; Bank v. Concord, 50 Vt. 279; Martin v. Railroad, 8 Fla. 370, (73 Am. Dec. 720.)
A radical, fundamental change in the character of the original enterprise releases the. subscriber for stock who does not consent to it; it does not have that effect if consented to. In this case, the county, through its county commissioners, have consented to the changed location, as shown by their re-subscription for stock. There being nothing in the vote of the county to the contrary, the county commissioners had authority to give consent. But we hold the change was not of that radical and fundamental character which would relieve a non-consenting stock subscriber. Moesen v. Port Washington, 37 Wis. 174.
It is claimed that ¿the work done in grading before January 1st, 1896, was done before location of the line, which might be located elsewhere, and therefore it cannot be treated as work upon the road within chap. 91, of. Special Laws of 1895. But it-was evidently known from preliminary surveys where the line-would be
Bill dismissed, ivith costs.