Inhabitants of Veazie v. Mayo , 49 Me. 156 ( 1861 )

The opinion of the Court was drawn up by

Tenney, C. J.

The statute of 1853, c. 41, § 3, provides, that "no railroad shall be located across any county road,-until the place, manner and conditions of such crossing shall have been ordered and determined in writing by the County Commissioners, and recorded in the County Commissioners’ office.” "And no railroad shall cross any street of a city, not a county road, without the written assent of the mayor and aldermen of the city, which written assent shall determine and state the manner and conditions iipon which such crossing may be made, and shall be recorded in the County Commissioners’ office. And every such crossing, made contrary to the foregoing provisions, shall be considered a nuisance, and liable to all the provisions of law relating to nuisances, and the directors of the company making the same shall be personally liable therefor.”

Under the provisions referred to, the plaintiffs claim to recover of the defendants, as damages, the amount of a judgment, rendered in favor of one Phillips against the plaintiffs, for an injury caused by a cut across a highway, at a time when the defendants were directors of the Penobscot Railroad Company, in the town of Veazie, made for that railroad. The railroad was located by the County Commissioners, in 1852, prior to the passage of the Act invoked in support of this action, and the provisions of that Act, it is not insisted by the defendants, were afterwards conformed to by the company.

The plaintiffs having offered to prove the making of the cut, as alleged in the writ, by the railroad company while the defendants were its directors, without compliance with the requirements stated, so far as the crossing of the highway was concerned, and that the allegations in the writ of Phillips against the plaintiffs, were true, that the work on that section of the road was not commenced till after the Act of 1853, c. 41, was in force, although work had been done on other parts of the railroad, before the Act went into operation, a nonsuit was directed.

It appears, that before the passage of the Act invoked in support of this action, a contract had been made between the railroad company and Hezokiah C. Seymour, for the construction of the railroad, including the part where the cut in question was made,' by one Nash, who was a sub-contractor under Seymour.

Although, the statute of 1853, c. 41, is to be treated as a general law and a remedial statute; and the passage thereof is to be regarded as the exercise of a power of police, which must of necessity exist in the people; and this law is to be applied, so far as it can be done with propriety and consistently with its terms, to all corporations embraced in its provisions, whether existing at the time or coming into existence afterwards, still it cannot be construed as creating the obligation in railroads, which have been located, to locate anew, so as to conform to these provisions. The language of the Act being prospective, it could not have been designed to refer to the railroads last mentioned, and such interpretation is not insisted on by the plaintiffs. Neither can the Act apply with propriety to a railroad, where the location has been completed and duly filed in the office of the County Commissioners,, and the construction of the road actually commenced, under a binding contract between the corporation and the party who is to make the railroad. The time for a change of location, at the crossings over such road or street, may have been so far exhausted that the necessary delay to make such change, according to the statute of 1853, may work a forfeiture of the charter. And a contract for construction is of binding obligation, so that neither party, nor the Legislature, can impair it.

In the opinion in this case, 45 Maine, 560, when it was before the Court, it is implied that the statute of 1853 will" not apply to railroad corporations chartered before its enactment, where they had entered upon the construction of the road under prior existing laws. This doctrine is correct, and, if the case required, it might be extended to roads previously chartered, when the location had been completed, and a binding contract made for its construction.

JVbnsuit to stand.

Rice, Appleton, Cutting, Mat and Kent, JJ., concurred.