
    Portland, Saco & Portsmouth R. R. Co., vs. Boston & Maine R. R. Co.
    Cumberland,
    1873.
    May 16, 1876.
    
      Sailroad. Constitutional law. Pleading. Trial.
    
    The act Of February 4th, 1872, c. 32, which prohibits any railroad company from constructing or maintaining any track or running any engines or cars on any street or highway so near any depot of any other railroad as to endanger the safe and convenient access to such depot and the use of it for ordinary depot purposes, being only a public regulation for the safety of the public, no constitutional objection exists against its application to a road chartered before its passage.
    The rule of court, 59 Maine, 605, by which the judgment on a demurrer to a bill in equity is made final, was mainly intended to prevent the filing of demurrers intended only for delay. When good cause is shown, the court at nisiprius, have power to allow a repleader upon terms.
    Bill in equity.
    
      J. H. Drummond, for the defendants,
    argued in support of the demurrer to the bill.
    The bill is founded upon the act approved Feb. 21th, 1872, which took effect on the day of its approval.
    This statute does not apply to the Boston & Maine Railroad. Their charter to construct a railroad through North Berwick became a law on the date of its approval, February 17th, 1871. By that charter the defendants were obliged to locate their railroad within one year from the date of approval; that year expired February 17th, 1872, just one week prior to the passage of the statute of 1872, on which this bill is founded.
    A statute is not to be held retrospective when it affects rights, unless such shall be the necessary construction. Given v. Marr, 27 Maine, 212; Veazie v. Mayo, 49 Maine, 156, see especially p. 158 ; Welcome v. Leeds, 51 Maine, 313.
    
      J. <& IS. M. Rand, for the complainants.
   Appleton, C. J.

The defendants have both demurred and answered to the complainants’ bill, but the cause has been argued before us on the demui’rer alone.

The act of February 4th, 1872, c. 32, which prohibits any railroad company from constructing or maintaining any track or running any engines or cars on any street or highway so near any depot of any other railroad as to endanger the safe and convenient access to and use of such depot for ordinary depot purposes, can be regarded only as police regulation for the safety of the public. No constitutional objection is raised against its validity.

The bill alleges that the defendants are about constructing a railroad in direct violation of the provisions of this section. The demurrer admits the truth of these allegations. It must therefore be overruled.

The rule of court., 59 Maine, 605, by which the judgment on a demurrer to a bill in equity is made final was mainly intended to prevent the filing of demurrers, intended only for delay. When good cause can be shown, the court at nisi prius, have ample power to allow a repleader upon just and reasonable terms.

Demurrer overruled.

Babrows, JDaotorth, Virgin and Peters, JJ., concurred.

Walton, J.

I concur, but inasmuch as the location of the railroad has been permanently changed and ought not to be reinstated, I think it would be better to make the judgment of the court final and not allow a repleader.  