Boston & A. R. Co. v. County Comm'rs of Hampden

• Decision Date: 22 October 1874
• Citation: 116 Mass. 73
• Parties: Boston and Albany Railroad Company v. County Commissioners of Hampden
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 73

Boston and Albany Railroad Company v. County Commissioners of Hampden

Supreme Court of Massachusetts

October 22, 1874

Hampden. Petition for a writ of certiorari, filed September 9, 1874. The case was heard and reserved by Endicott, J., for the consideration of the full court upon the petition and answer, and the record of the county commissioners, (a copy of which was annexed to the petition,) and was as follows:

On October 1, 1873, the directors of the Boston and Albany Railroad Company and the mayor and aldermen of the city of Springfield presented a joint petition to the county commissioners, under the St. of 1872, c. 262, § 1 representing that the petitioners were of opinion that it was necessary for the security as well as the convenience of the public "that the method of crossing Main and Chestnut streets, in said city, by said railroad should be altered," and requesting the commissioners "to prescribe such an alteration as will separate the grade of said railroad from the grade of said streets and allow said streets to pass under said railroad."

In the proceedings upon that petition, Simeon S. Southworth, one of the special commissioners of the county, acted in the stead of George R. Townsley, one of the county commissioners, who was a resident of Springfield, and therefore, as stated in the record of the county commissioners, disqualified to act.

The commissioners, after notice, view and hearing, on January 31 1874, adjudged that common convenience and necessity required that the prayer of the petition should be granted, and prescribed the manner and limits within which the alteration should be made, the details of which were stated in their order, and by which the grade of the railroad across Main Street was to be raised ten feet, and across Chestnut Street two and a half feet, and the grade of each street where it crossed the railroad was to be lowered; and named S. A Bartholomew, a resident and tax payer in Blandford in this county, "as one of three disinterested persons to determine the parties by whom the foregoing decision shall be carried into effect."

Main Street is a highway, part of which only is within the city of Springfield. Chestnut Street is entirely within it, and was laid out as a highway before Springfield was made a city.

The reasons assigned in the petition of the railroad corporation for a writ of certiorari to quash these proceedings were as follows:

"First. Because the statute authorizes only the county commissioners to act on the petition to them; and the said Townsley was not disqualified by residence to act; and the said Southworth had no authority to act in the premises; and the two county commissioners, and the said Southworth acting as a county commissioner instead of the third county commissioner, had no jurisdiction of the petition to the county commissioners, and their acts and orders in the premises are without authority.

"Second. Because the county commissioners have no jurisdiction to change the grade of the railroad of this petitioner, under the statute.

"Third. Because the petition to the county commissioners did not ask for a change of grade of the railroad, but did ask that the streets might pass under the railroad; and under the petition the county commissioners had no jurisdiction to change the grade of the railroad.

"Fourth. Because the county commissioners had no authority to appoint a member of the commission, provided for by the statute, to determine who should carry into effect any order relative to Chestnut Street, or the railroad crossing at Chestnut Street, a street the termini of which are entirely within the city of Springfield.

"Fifth. Because S. A. Bartholomew, named as one of the commission to determine by whom the order aforesaid should be carried into effect, was not and is not a disinterested person within the meaning of the statute, being a resident of and a tax payer in Blandford in the county of Hampden."

Writ of certiorari to issue.

A. L. Soule, for the petitioner.

B. F. Thomas & H. Morris, for the respondents.

Gray, C. J. Wells & Colt, JJ., did not sit.

OPINION

Gray, C. J.

This is an application for a writ of certiorari to quash the proceedings had upon a petition to the county commissioners, under the St. of 1872, c. 262, for an alteration in the method of crossing Main Street and Chestnut Street in Springfield by the Boston and Albany Railroad.

1. By the express terms of the Gen. Sts. c. 17, § 12, if any part of a road upon which the county commissioners are to act lies within the city or town in which either of them resides, he is disqualified to act thereon (unless a board cannot be organized without him) and one of the special commissioners of the county is to act in his place. A petition to the county commissioners under the St. of 1872, c. 262, is addressed to them in their official capacity. In the present case, the petition required their action upon two streets within the city of Springfield. One of the county commissioners, residing in Springfield, was thereby disqualified to act thereon, and one of the special commissioners rightly acted in his stead. The board of county commissioners was therefore legally organized for the performance of the duties required of it by the St. of 1872. Tolland v. County Commissioners, 13 Gray 12. Haverhill Bridge v. County Commissioners, 103 Mass. 120.

2. The next and the most important question in the case is whether the St. of 1872, c. 262, has authorized the county commissioners to change the grade of a railroad at a place where it crosses or is crossed by a highway.

In determining the true interpretation and legal effect of this statute, we must keep in mind several important considerations of a general nature, which have been pointed out in the opinions of this court in similar cases.

The statute is not to be read according to the mere letter, but having regard to the nature of the subject matter, the various interests, public and private, which are to be affected, and the policy and intent of the legislature, as appearing from a comparison of the statute to be expounded with earlier enactments upon the same subject. The much greater weight and speed of the engines and cars moved by steam upon a railroad, than of the wagons and carriages travelling upon an ordinary highway, render it necessary that the railroad should be constructed nearly upon a level, and make it much more practicable, in accommodating the necessities of the one to those of the other, to vary the grade of the highway than that of the railroad. The court of county commissioners is a tribunal which has long been vested by law with various and extensive powers in the laying out, discontinuance and alteration of highways, but which was never before clothed with any authority to alter the grade or location of railroads once constructed. And a change of legislative policy in so important a matter is not to be presumed unless clearly expressed. Springfield v. Connecticut River Railroad, 4 Cush. 63, 68. Roxbury v. Boston & Providence Railroad, 6 Cush. 424, and 2 Gray 460. Boston & Maine Railroad v. Mayor &c. of Lawrence, 2 Allen 107. Mayor & Aldermen of Worcester v. Railroad Commissioners, 113 Mass. Lancaster v. County Commissioners, Ib.

A recapitulation of the material provisions of the general railroad act, as existing at the time of the passage of the St. of 1872, will show that the railroad corporation alone was authorized to change the grade of its railroad at a crossing, and that only the grade of the highway and the structures at the crossing were submitted to the regulation of the county commissioners.

Upon the laying out of a railroad across a highway or town way, the railroad corporation was required by the statute, without any order of the county commissioners, to make its road so as not to obstruct the way; either by passing over it, leaving a sufficient space to conveniently accommodate the travel upon the way; or by passing under it, building and maintaining such bridges with suitable approaches thereto, as in like manner to accommodate such travel. It was only when the corporation found it necessary to raise or lower the way, or to alter its course, or when the railroad caused an obstruction to the way, or when in the opinion of the county commissioners subsequent alterations of the way or additional safeguards were required at the crossing, that any order of the county commissioners was required or authorized; and such an order was limited to prescribing "what alterations may be made in the way, and the manner and time of making the alterations or structures the commissioners may require at the crossing." Gen. Sts. c. 63, §§ 46-49, 55, 60.

The railroad corporation was required to maintain and keep in repair "all bridges with their approaches and abutments," which it constructed over or under any highway or other way. Gen. Sts. c. 63, § 61.

After a railroad had been laid out and made, the county commissioners might, at the expense of the county, city or town, layout, or authorize the mayor and aldermen or selectmen to layout, a way across it, passing over, or under, or, if public necessity so required, upon a level with the railroad; and if over, determining and specifying in what manner the bridge necessary for the crossing should be constructed; and it was expressly provided that "such ways shall be so made as not to obstruct or injure the railroad." Gen. Sts. c. 63, §§ 57-59.

"The original jurisdiction of all questions touching obstructions to turnpikes, highways or town ways, caused by the construction or operation of railroads," was vested in the county commissioners. Gen. Sts. c. 63, § 62. But that section, taken in connection with the other provisions of the...