Bacon v. Boston & M. R. R.

• Decision Date: 11 May 1910
• Citation: 76 A. 128,83 Vt. 421
• Court: Vermont Supreme Court
• Parties: BACON et al. v. BOSTON & M. R. R. et al. CENTRAL VERMONT RY. CO. v. TOWN OP HARTFORD et al.

76 A. 128

83 Vt. 421

BACON et al.

v. BOSTON & M. R. R. et al.

CENTRAL VERMONT RY. CO.

v. TOWN

OP HARTFORD et al.

Supreme Court of Vermont.

May 11, 1910.

Acts 1906, No. 126, § 23, gives the Board of Railroad Commissioners jurisdiction on due notice to hear, determine, and make orders and decrees in all matters provided for in the charter of any railroad corporation or in the statutes relating to railroads, and Acts 1908, No. 116, § 9, gives the Public Service Commission, which name was by that act substituted for that of "Board of Railroad Commissioners," jurisdiction in all matters respecting railroad crossings and highway grade crossings, etc., and the location, sufficiency, and maintenance of proper stations, tracks, etc., and of the manner of operating railroads. Held, that while the Public Service Commission had power to require every railroad company to discharge its public duties, whether imposed by charter, general law, or the nature of its business, its powers were only those of supervision and regulation and not of management and administration, and the commissioners could not, in ordering the abolition of a grade crossing and construction of a subway at a depot approach, require the removal of a number of tracks, unless that was a necessary incident to the construction of the subway, nor could it require the construction of an underground baggage room with an elevator, in connection with the order directing the construction of the subway, unless such baggage room was a necessary incident thereto; it only being authorized to require the construction of whatever is necessarily incident to a safe and convenient subway.

Appeal from order of Railroad Commission.

Petition by John l. Bacon and others against the Boston & Maine Railroad and others for the abolition of a grade crossing, etc., and petition by the Central Vermont Railway Company against the Town of Hartford and another, for the abolition of such crossing and apportionment of the expense thereof, which cases were consolidated. From the order of the Public Service Commission, as stated, petitioners in the last case appeal. Order reversed, and cause remanded for further proceedings.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

James G. Harvey and Alexander Dunnett, for John L. Bacon and others and Town of Hartford.

John G. Sargent, Atty. Gen., for the State.

Young & Young, for Boston & M. R. R. C. W. Witters and Henry H. Powers, for Central Vermont Ry.

HASELTON, J. February 11, 1908, John L. Bacon and 13 others, freeholders of the town of Hartford, addressed a petition to the Board of Railroad Commissioners, now the Public Service Commission (Acts 1908, No. 116), stating in general terms that they believed that the approaches to the Union Passenger Station at the village of White River Junction, in the town of Hartford, were such as to endanger the public safety, and requesting a hearing on the matter, and also requesting that the sufficiency of the station with respect to the convenience and accommodation of the public should be consideration in the hearing. May 18, 1908, this petition was amended so that the complaint thereof was more specific. The amended petition set out that the station is insufficient, is improperly maintained, and is not properly located for access from the main street of the village; that it is not so arranged as to accommodate the patrons of the railroads centering there and the public having business there; that the only approach to the station is by a crossing at grade over many tracks, and that the tracks at such crossing are used by the railroad companies for the shunting and yarding of cars, so that, by reason of an almost continual use of the tracks for such purposes, the crossing of persons and teams is a very great source of inconvenience and danger to the patrons of the railroads and to the portion of the public who have business there; and that the use of coal in engines and the noise made by engines in hauling cars there are sources of great annoyance and inconvenience to people in the vicinity. The amended petition prays the board to make such order as is just, proper, and right as to the maintenance of a station such as is safe, convenient, and proper for the use of the patrons of the railroads and for the public, and to make a like order as to a change in the manner of approach to the station; that the tracks there be removed, and the shunting and yarding of cars there be abolished; and that such other changes be made in the approach to the station as shall make the crossing there reasonable and safe. The amended petition prays generally for such an order as may be just and reasonable in the premises.

To this petition the Boston & Maine Railroad and the Central Vermont Railway Company filed their several answers, and a hearing was had in the cause. A report was filed and an order was made in September, 1908. The order provided for the construction of two subways under the tracks, eight in number, of the Central Vermont Railway Company westerly of the station. One of these was to be a footway 10 feet high and 12 feet wide, and the other a driveway 12 feet high and 20 feet wide. In addition to these subways, this order provided for an underground chamber beneath the platform and baggage house now at the station, and for a baggage room in this underground chamber, and for an elevator for transferring baggage to and from this underground baggage room and the baggage room above. The order in all its particulars need not be set out. From this order the railroad companies appealed to the Supreme Court, where such proceedings were had that October 27, 1908 the cause was recommitted to the board of commissioners for further proceedings. The mandate of that date provided that the appellants, or either of them, might file with the board a petition for the modification of the order; that the commissioners should hear evidence in support of such petition and such evidence, offered by any party to the cause, as had reference to the practicability and expense of the construction ordered and appealed from and to the expense of other proposed plans; and that, after such further hearing, the commissioners should make such modifications and alterations of the order, such additions thereto, and such omissions therefrom as should seem to them just and proper; that they should report the advantages and disadvantages of each plan proposed for eliminating the grade crossing, and the probable cost of the work ordered and of each plan proposed. This mandate further required that the commissioners should report the advantages and disadvantages of the elevator system ordered and the annual cost of operating the elevator, together with any objections to a plan for an underpass proposed by the Boston & Maine Railroad. By the terms of the mandate, it was not to be construed as limiting the jurisdiction of the commissioners. The terms of this mandate are recited in C. V. Ry. Co. v. State and Town of Hartford, 82 Vt. 145, 152, 72 Atl. 324, which is the second of the cases to which this opinion relates.

This second case is a petition brought to the board of commissioners by the Central Vermont Railway Company June 30, 1908, and before the report and order in the Bacon Case were filed or made. It sets out that the crossing over the tracks, already referred to, is a public highway, is highly dangerous, and ought in the interest of public safety to be abolished, and represents as matter of opinion that it can be abolished by the construction under the eight railroad tracks, referred to, of a highway and a passenger footway. The petition prays for the abolition of such highway crossing at grade and for the apportionment of the expense of such changes as the public welfare and safety may require among the state, the town of Hartford, and the Central Vermont Railway Company. The commissioners, after hearing, made an order dismissing this petition, and from this order the petitioner appealed. Pending this appeal, December 24, 1908, the Boston & Maine Railroad and the Central Vermont Railway Company brought their joint petition to the commissioners in accordance with the mandate of the Supreme Court that has been referred to, and in that petition set out that the crossing was a highway, and they made therein substantially the same representations as have been made in the sole petition of the Central Vermont, and they prayed that the crossing in question be abolished and for the apportionment of the expense of its abolishment among the joint petitioners, the state of Vermont and the town of Hartford. In answer to this petition the state of Vermont and the town of Hartford set out, among other things, that the matter thereof had been determined and adjudged by the board of commissioners. The commissioners refused to hear evidence in support of the joint petition. Thereupon the Central Vermont Railway Company in its sole petition then pending on appeal in this court made an application praying that the last-named case be remanded and consolidated with the Bacon Case, the first named of the cases to which this opinion relates. This court held that the Boston & Maine Railroad is interested in the question of whether the crossing in question is a public highway, and pointed out in what way it is interested, and further called attention to the fact that it had not been heard on that question, since that question was not raised by the Bacon petition to which it answered, and since it was not a party to the proceedings brought by the Central Vermont, in which that question was raised. We held that the joint petition of the railroad companies was well within the mandate which had been sent down in the Bacon Case, but made no order in respect to the Bacon Case nor in respect to the joint petition, which was treated as a dependency of that case, since the Bacon Case was not before us. Nevertheless the order...