85 A. 693 (Vt. 1913), George W. Sabre v. Rutland Railroad Company And Central Vermont Railway Co.

Citation:85 A. 693, 86 Vt. 347
Opinion Judge:HASELTON
Party Name:GEORGE W. SABRE ET AL. v. RUTLAND RAILROAD COMPANY AND CENTRAL VERMONT RAILWAY COMPANY
Attorney:Edwin W. Lawrence for the appellant.
Judge Panel:Present: MUNSON, WATSON, HASELTON, and POWERS, JJ., and BUTLER, Superior Judge. POWERS POWERS, J., dissenting.
Case Date:January 21, 1913
Court:Supreme Court of Vermont
 
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Page 693

85 A. 693 (Vt. 1913)

86 Vt. 347

GEORGE W. SABRE ET AL.

v.

RUTLAND RAILROAD COMPANY AND CENTRAL VERMONT RAILWAY COMPANY

Supreme Court of Vermont

January 21, 1913

Page 694

Special Term, December, 1912.

APPEAL from an order of the Public Service Commission directing the construction, maintenance, and operation of gates at a grade crossing near the passenger station at Alburgh. The opinion states the case.

Our conclusion is that the Public Service Commission is a legally constituted body with authority to act and make orders with reference to the dangerous situation which, as the case now stands, appears to exist in the vicinity of the Alburgh station, and the cause is remanded to the Public Service Commission for further proceedings upon due notice and hearing.

Edwin W. Lawrence for the appellant.

Present: MUNSON, WATSON, HASELTON, and POWERS, JJ., and BUTLER, Superior Judge.

OPINION

HASELTON

Page 695

[86 Vt. 353] This is a petition of citizens of Alburgh addressed to the Board of Railroad Commissioners, now the Public Service Commission, asking for better protection at the railroad station in Alburgh, and requesting, among other things, that the commission order the defendant companies to install and operate gates at the highway crossing near the station. After due notice a hearing on the petition was had at Alburgh, November 16, 1911, the defendant companies appearing by their respective attorneys. Some time after the hearing the commissioners employed an expert who examined the condition complained of and made a detailed report to the commissioners. June 1, 1912, an order was made by the commission directing the defendants to construct and operate gates at the crossing in question. The Rutland Railroad Company brings the case to this Court by an appeal duly taken from the order of the commission.

The questions chiefly argued are constitutional ones; but we first discuss the other questions raised, for the constitutionality of an act will not ordinarily be considered unless such consideration is necessary to the disposition of the cause in hand.

It is claimed that the commission does not have, under the statute, authority to order gates and flagmen at highway crossings in towns as distinguished from cities and villages. P. S. 4433, is referred to and the reading of that section indicates that the Legislature did not intend to confer upon the commission authority to order gates to be erected and operated at crossings outside

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of villages or cities merely because of the situation created by such crossing. But the crossing in question is only some four or five rods from the station at Alburgh, which is a through station on the Central Vermont Railway, is also on the main line of the Rutland Railroad, and is the terminus of the Ogdensburgh Division of that Railroad. The passenger platform extends [86 Vt. 354] westerly from the grade crossing, and southerly of the platform are first the Central Vermont traffic track, then the main line of the Rutland Railroad, and then the line on which the trains of the Ogdensburgh Division arrive and depart. We omit mention of a house track, so-called, used by both roads, since the commission, while stating its existence, do not emphasize it as an element of danger. The traffic and the movement of locomotives and cars at the place of the crossing is very considerable and many persons daily pass over some or all of the tracks. East, or easterly, of the highway and crossing, that is, on the other side of the highway from the passenger station, are the freight yard, engine house, water crane, and coaling plant of the appellant. The round-house is east of the crossing. A large number of persons cross a track, or tracks, in going to and from the station. The situation is a very dangerous one. The facts that we have recited appear from the report of the commissioners.

The railroad companies have under our practice, which is conformable to the practice in chancery, a right on appeal to raise the question of a sufficiency of the evidence to support the findings, but they have not done so, and in arguing the question now under consideration they rely solely upon the claim that the statute does not undertake to give the commission authority to make the order which it in fact made. But a railroad company is under obligation to make the surroundings and approaches to its stations reasonably safe, and the statute undertakes to confer upon the Railroad Commission authority to enforce that obligation. P. S. 2611; Bacon v. Boston & Maine, 83 Vt. 421, 442, 443, 445, 76 A. 128. See also Rutland etc. Co. v. Clarendon etc. Co., 86 Vt. 45, 54, 83 A. 332; Clarendon v. Rutland R. Co., 75 Vt. 6, 52 A. 1057; Beard v. Connecticut & Passumpsic Rivers R. Co., 48 Vt. 101; Sawyer v. Rutland & Burlington R. Co., 27 Vt. 370; Hale v. Grand Trunk, 60 Vt. 605, 15 A. 300; Nelson v. Vermont & Canada R. Co., 26 Vt. 717; Covington Stock Yards v. Keith, 139 U.S. 128, 35 L.Ed. 73, 11 S.Ct. 461.

The appellant also contends that the order of the commissioners must be reversed on the ground that the hearing required by statute was not given to the railroad companies.

In matters like that in question the statute contemplates that the commission shall act upon due notice and hearing, and it here sufficiently appears from the report that after the hearing of November 16, 1911, the commission employed an expert who [86 Vt. 355] made investigations and laid the result thereof before the commission, and that no opportunity was afforded the defendants to examine the expert or to present evidence in rebuttal or to argue the case as it finally stood. And it sufficiently appears that the report of the expert was considered by the commission and aided them in arriving at their conclusions. So we think that the order was not made in pursuance of statutory authority.

This brings us to the constitutional questions. The appellant claims that the statute creating the Board of Railroad Commissioners is void, and that the board is without legal existence or authority, and further that, in any view, the provisions of the statute under which the board acted in this case are unconstitutional and void. The decision of these constitutional questions is essential to the disposition of the case here; for if the Railroad Commission is a legally existing body and had authority to act in the premises, this case should be remanded for a new hearing before the commissioners, but if the Railroad Commission has no legal existence, or has no authority in the premises the case should be disposed of here for we have no right to send the case for hearing to any illegal body or to a body which has no authority to act.

The appellant claims that all laws creating or relating to the Public Service Commission or conferring any authority upon it, and particularly the provisions of P. S. 4611, are unconstitutional because they undertake to confer legislative, executive, and judicial functions upon the commission and that such functions are, by the laws referred to, hopelessly commingled, contrary to the provisions of the Constitution of this State.

In order to gather the legislative intent expressed in the Act of 1906, the constitutionality of which is questioned, it is permissible and desirable to trace briefly the history of previous legislation upon the same subject.

In 1854, a bill establishing the office of Railroad Commissioner was introduced into the Senate, and passed that body. However, the bill failed to pass the House. But at the session of the year named a joint resolution was adopted requesting the Governor to appoint three commissioners who should be required, among other things, to report, upon an investigation, what legislation was necessary for the protection of the rights of the State and of the public in respect to railroad corporations, [86 Vt. 356] and for the protection of the shareholders, bondholders, and general creditors of such corporations. Journal of the House, 1854; Journal of the Senate, 1854; Acts of 1854, p. 72.

The Governor accordingly appointed three commissioners who reported at the legislative session of 1855. These commissioners were Jacob Collamer, Daniel Kellogg, and Hyland Hall, all of whom had been Judges of this Court and were profound constitutional

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jurists. At the time when the report was made Collamer had entered upon his distinguished service as Senator from this State. They recommended the passage of an act establishing a Board of Railroad Commissioners to be appointed by the Governor with power to examine into the physical and pecuniary condition of every railroad in the State, to require each railroad to report to them under oath, and to examine the books, papers, and documents of a railroad corporation, or its officers, to examine such officers, or the employees of a road, or other persons under oath, to issue subpoenas, and administer oaths in the same manner and with the same powers to enforce obedience thereto "as belong and pertain to Courts of Law in this State." They recommended that every person who should hinder or impede the commissioners in the execution of their duties should be subject to the punishment provided by law for hindering and impeding officers, judicial or executive, that any person who should fail to make the return required should be guilty of a misdemeanor and punishable by fine and imprisonment, that any person refusing access to the papers referred to, or refusing information required by the commissioners in the discharge of their duties should in like manner be deemed guilty of a misdemeanor and be liable to fine and imprisonment, and that any person who should be guilty of wilful falsehood, or suppression of truth, in making any return, or in furnishing information or making a statement under oath to the commissioners should be deemed guilty of perjury and punished accordingly.

The...

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