Appeal of Milbridge & C. Electric R. Co.

• Decision Date: 06 January 1902
• Citation: 96 Me. 110,51 A. 818
• Parties: Appeal of MILBRIDGE & C. ELECTRIC R. CO.
• Court: Maine Supreme Court

51 A. 818

96 Me. 110

Appeal of MILBRIDGE & C. ELECTRIC R. CO.

Supreme Judicial Court of Maine.

Jan. 6, 1902.

(Official.)

Exceptions from supreme judicial court, Washington county.

Appeal of the Milbridge & Cherryfield Electric Railroad Company from refusal of the town of Milbridge to approve the location of a street railway. Demurrer to the complaint was overruled, and the town of Milbridge took exceptions. Exceptions overruled.

This was a complaint under St. 1893, c. 268, § 3, as amended by St. 1899, c. 119, § 1, on appeal from the municipal officers of the town of Milbridge, who, it was alleged, refused and neglected to approve the route and location of the appellant's street railroad in the streets and highways of the town of Milbridge in the county of Washington for more than 30 days after the railroad company's application to them therefor was presented.

The municipal officers of Milbridge filed a demurrer to the complaint The demurrer was overruled at nisi prius, and appellees took exceptions.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, FOGLER, and PEABODY, JJ.

E. A. Hubbard, F. I. Campbell, and J. O. Bradbury, for appellant.

H. H. Gray, for appellee.

SAVAGE, J. This is an appeal based upon the alleged neglect or refusal of the municipal officers of Milbridge to approve of the proposed route and location of the appellant company in certain streets and ways in the town of Milbridge, and is controlled by the provisions of chapter 268, § 6, Pub. Laws 1893, as amended by chapter 119, § 2, Pub. Laws 1899, relating to the organization of street railroad companies.

The appellees have demurred, and they seek to sustain their demurrer,—first upon the ground that it is nowhere alleged in the appeal that the railroad commissioners had determined that public convenience required the construction of the railroad. The appellees' position is that such determination is a necessary prerequisite to any proceedings by the railroad company under charter or certificate of organization; that without such determination the company obtained no franchise, and no right to call upon the railroad commissioners or the municipal officers of Milbridge for an approval of its route and location; that the municipal officers of Milbridge had no jurisdiction in the premises, and no authority to act upon the railroad company's application to them; and that this court has no jurisdiction on appeal. In short, the appellees say that the determination by the railroad commissioners that public convenience requires the construction of the railroad is an essential jurisdictional fact, and hence that it must be averred.

It is undoubtedly true that in proceedings of this character enough must be directly alleged to show that the court has jurisdiction (Pettengill v. Commissioners, 21 Me. 377); and if there be an omission to allege any fact without which the court would not have jurisdiction, advantage may be taken of the omission by demurrer, or upon a motion to dismiss (Rines v. City of Portland, 93 Me. 227, 44 Atl. 925). It is also true that, under the statute in question, it was essential that the railroad commissioners should find that public convenience required the construction of the railroad, before the railroad company could do any business. It was preliminary even to complete organization. In re Portland Railroad Extension Co., 94 Me. 565, 48 Atl. 119. The amendments to this statute (chapter 187, Pub. Laws 1901) do not affect this case.

Now, while it is necessary for the appeal to allege enough to show that the appellant had the right to apply to the municipal officers for an approval of its route, it is not necessary to allege all the steps by which the appellant obtained that right.

The statute regulating such an application and appeal (Pub. Laws 1899, c. 119, § 2) gives that right to every "corporation organized" under the provisions of chapter 268 of the Public Laws of 1893. It does not require the appeal to set forth the steps which led up to the organization. It would have been sufficient for the appellant to have alleged simply that it was a "corporation organized" under the statute referred to. Under such an allegation, all things essential and preliminary to lawful organization would be presumed, so far as averment is concerned, and no specific allegation would be necessary. McClinch v. Sturgis, 72 Me. 288.

As preliminary to the organization of such a corporation under the statute of 1899, it was essential that the railroad commissioners should find, not only that public convenience required the construction of the railroad, but that all the provisions of sections 1 and 2 of Public Laws of 1893, chapter 268, had been complied with; that is, that at least five persons, of whom a majority were citizens of this state, had made and signed proper articles of association, that not less than $4,000 of capital stock for every mile of road proposed to be constructed had been subscribed for in good faith by responsible parties, and 5 per cent paid thereon in cash to the directors, and that a majority of the directors had made the affidavit required by section 2. The determination of all of these facts was preliminary and essential to the organization of the company. But in an appeal like this it is no more necessary to allege as to the finding of public convenience than as to any other of the findings. They are all implied in the expression "corporation organized."

The appeal before us not only alleges that the appellant is a "corporation duly organized and established in conformity to the laws of the state of Maine," in the year 1900, but...