Cent. Vermont Ry. Co. v. State

• Decision Date: 19 March 1909
• Citation: 82 Vt. 145,72 A. 324
• Parties: CENTRAL VERMONT RY. CO. v. STATE et al.
• Court: Vermont Supreme Court

72 A. 324

82 Vt. 145

CENTRAL VERMONT RY. CO.

v. STATE et al.

Supreme Court of Vermont.

March 19, 1909.

Petition by the Central Vermont Railway Company against the State and the Town of Hartford for the abolition of a highway grade crossing. From a final decree of the railroad commissioners dismissing the petition, petitioner appealed to the Supreme Court, and asked that the petition be remanded to the board of railroad commissioners. Decree reversed pro forma, and cause remanded.

Argued before TYLER, WATSON, MUNSON, and HAZELTON, JJ.

John Young, C. W. Witters, and Wm. B. C. Stickney, for petitioner. James G. Harvey and Alexander Dunnett, for defendants.

ROWELL, C. J. This is an appeal from the final decree of the board of railroad commissioners dismissing the petition of the railway company against the state and the town of Hartford, praying for the abolition of a highway grade crossing over the company's tracks at White River Junction, and the establishment of a highway and a footway for passengers in such manner as appeared to the board most conducive to the public welfare and safety, and for an apportionment of the expense of such changes as should be ordered among the state, the town, and the railroad company, which also appealed from said decree to the court of chancery within and for the county of Windsor. The case now comes on for hearing on the company's petition, dated January 8, 1909, praying that it be remanded, with a mandate that it be consolidated with a prior case now pending before the commissioners, instituted by John L. Bacon and others against the petitioner, the Boston & Maine Railroad Company, and the Woodstock Railroad Company, praying, among other things, for such changes in said crossing as will lessen the danger thereof to the public. The town moves to dismiss the appeal for want of jurisdiction, claiming that the court of chancery is the appellate court in such cases, and not the Supreme Court. This depends upon whether the part of No. 125, p. 134, Acts 1906, that gives an appeal in such cases to the court of chancery within and for the county in which the crossing is located, is repealed, by implication, by No. 126, p. 138, a later act of the same session, which gives an appeal to the Supreme Court, in general language broad enough to include the case in hand.

No. 125, p. 134, Acts 1906, which constitutes chapter 194 of the Public Statutes, is entitled, "An act relating to railroad crossings," and provides a way for altering, changing, and removing highway grade crossings by order of the board of railroad commissioners on its own initiation, or the petition of the selectmen of the town, or of the railroad company, and for the apportionment by (he board in certain cases of the expense among the state, the town, and the railroad company, and for the taking of land necessary for the purposes of the act. Said act repeals all acts and parts of acts inconsistent therewith. Section 6 of the act provides that any person aggrieved by the order of the commissioners may appeal therefrom to the court of chancery within and for the county in which the highway or crossing is located, and that the court may hear the appeal, and re-examine the question of the propriety and expediency of the order appealed from, either by itself, or by reference to a commission appointed by it, and, in case the order is not affirmed, may make any other order that it may deem proper, and that might have been made by the railroad commissioners, and award costs; that such appeal shall supersede the order appealed from until the final order of the court, and that its final order may be enforced by attachment, mandamus, or otherwise, as the court shall deem proper.

No. 126, p. 138, Acts 1906, which makes up chapter 196 of the Public Statutes, is entitled, "An act to create a board of railroad commissioners and to define and regulate its powers and duties." It gives the board the powers of a court of record, both at law and in equity, in the determination and adjudication of all matters over which it is given jurisdiction. It may render judgments, make orders and decrees, and enforce the same by any suitable process issuable by courts of law and equity in this state. It is required to prescribe the forms, pleadings, procedure, and rules of practice before it, and to print the same for general use. It is required to hear all matters, and state its rulings when excepted to, and its findings of facts are given the force and effect of the reports of special masters in courts of equity whenever the cause is taken by appeal to the Supreme Court. Parties aggrieved by the final order, judgment, or decree of the board are given the right to take the case to the Supreme Court by appeal for the correction of any errors excepted to in its proceedings, or any in the form or substance of its orders, judgments, and decrees on the facts found and reported. Such appeals are to be taken, and the case entered, in the Supreme Court in the county in which the cases arise, in the manner and under the law and rules of procedure that govern such appeals from the court of chancery, and the Supreme Court is given the same power therein as it now has over appeals from the court of chancery. It may reverse or affirm the judgments, orders, and decrees of the board, and remand the cause to the board with such mandate as law or equity shall require, and the board shall enter judgment, order, or decree in accordance with the mandate. Such appeal shall not vacate any judgment, order, or decree of the board; but the Supreme Court, or a judge thereof when the court is not in session, may suspend execution there of as justice and equity shall require, unless otherwise specifically provided by law. Section 23 of said act gives said board jurisdiction, on due notice, to hear, determine, render judgment, and make orders and decrees in all matters provided for in the charter of any railroad corporation, or in the statutes of this state, and like jurisdiction in all matters respecting divers other subjects specifically mentioned, among which are "all highway grade crossings, and signs, signals, gates, or flagmen at the same." It provides that nothing contained in the section shall be construed as affecting special provisions of law relating to anything therein contained. Chapter 172 of the Vermont Statutes, and all amendments thereto, and all acts and parts of acts inconsistent with said act, are thereby repealed. Said chapter of the Vermont Statutes is entitled "Railroad Commissioners," and relates to their appointment and general powers and duties, and to the duties of persons and corporations operating railroads in this state.

A statute will not be construed as repealing a former act on the same subject, in the absence of express words to that effect, unless there is such an inconsistency between them that they cannot stand together, or unless the later act is evidently intended to supersede the former act in respect to the matter in hand, and to comprise in itself the sole and complete system of legislation on that subject. Passing, for the present at least, the question of inconsistency between these acts, we come to consider what the intention of the Legislature was in the respect indicated. It was held, in Brown v. United States, 171 U. S. 631, 19 Sup. Ct. 56, 43 L. Ed. 312, that when a statute provides for a writ of error to a specified court of appeals, it must be considered as a repeal of any previous statute providing for a writ of error to another and different court. That case was in error to the United States Court in the Indian Territory, to review a judgment thereof by which the plaintiff in error was convicted of a capital offense. A motion to dismiss was interposed by the government for want of appellate jurisdiction. By an act of Congress passed March 1, 1889 (25 Stat. 783, c. 333) a United States court was established for said territory. It conferred no jurisdiction over felonies, but exclusive original jurisdiction over all other offenses. By a later act of Congress, passed March 1, 1895 (28 Stat. 693, c. 1-15), the jurisdiction of the territorial court was extended to capital cases and other infamous crimes, and a territorial court of...