in re City of Northampton

• Citation: 158 Mass. 299,33 N.E. 568
• Parties: In re MAYOR, ETC., OF CITY OF NORTHAMPTON.
• Decision Date: 03 March 1893
• Court: United States State Supreme Judicial Court of Massachusetts

158 Mass. 299

33 N.E. 568

In re MAYOR, ETC., OF CITY OF NORTHAMPTON.

Supreme Judicial Court of Massachusetts, Hampshire.

March 3, 1893

COUNSEL

T.G. Spaulding, for petitioners.

William G. Bassett, for Connecticut River R. Co.

Robinson & Robinson, for New York, N.H. & H.R. Co.

OPINION

FIELD C.J.

None of the parties to this proceeding contends that any one of the provisions of St.1890, c. 428, as amended by St.1891, cc. 33 123, 262, and St.1892, c. 312, is unconstitutional. The petitioners, however, contend that St.1892, c. 311 ^[1] is unconstitutional, and the justice of the superior court so held. If this ruling is erroneous, the decree is to be set aside. It is not denied that the subject of the crossing of highways and townways by railroads is one which the legislature may regulate, from time to time, either by general or special laws. The legislature may itself prescribe the manner in which a railroad shall cross a highway in a particular case, or may delegate to a board of public officers, or to commissioners appointed by a court, the power to prescribe the manner in which the general or special provisions of law on the subject may be carried into effect. Any alleged errors of law in the proceedings of such boards are usually reviewed by this court on certiorari; but errors of law in the proceedings of such commissioners usually come before the court which appoints them, on some motion to confirm or reject or recommit the report, and thence by appeal, exceptions, or report to this court. The legislature itself can also apportion the expenses incurred in making the required changes in the grade of such crossings, or can confer upon such boards or commissioners the power to apportion the expenses in accordance with such rules as it may prescribe. This has been held to be within the authority granted by the constitution to the general court to make "all manner of wholesome and reasonable orders, laws, statutes, and ordinances," and to be an exercise of what is called the "police power" of the commonwealth for the protection and safety of the public. No municipality has any vested right to have such crossings maintained in any particular manner, but they may be changed from time to time, as from the growth of population or other causes the legislature may think the public interests require. A railroad corporation, also, especially when its charter is subject to alteration, amendment, or repeal at the pleasure of the legislature, must make such changes in the grade of its road and the construction of its track as the legislature, from time to time, may require. Neither is it necessary that the laws on the subject be uniform throughout the commonwealth. From the very nature of the subject, the regulations which reasonably may be required must vary with the circumstances, and the legislature may well adopt different rules for different crossings. It may make special provisions for some crossings, and general provisions for others, or leave the matter to the discretion of the board of commissioners upon whom it may confer the power of deciding. See Boston & L.R. Corp. v. Winchester, 156 Mass. 217, 30 N.E. 1139; City of Cambridge v. Board of Railroad Com'rs, 153 Mass. 161, 26 N.E. 241; Kingman, Petitioner, 153 Mass. 566, 27 N.E. 778; Spaulding v. Nourse, 143 Mass. 490, 10 N.E. 179; New York & N.E.R. Co. v. Boston, 127 Mass. 229; Worcester & N.R. Co. v. Railroad Com'rs, 118 Mass. 561; Boston & Albany R. Co. v. County Com'rs, 116 Mass. 73; Brewer v. Railroad Co., 113 Mass. 52; Mayor & Aldermen of Worcester v. Railroad Com'rs, Id., 161; Mayor & Aldermen of Worcester v. Norwich & W.R. Co., 109 Mass. 103; Com. v. Eastern R. Co., 103 Mass. 254; Hingham & Quincy Bridge, etc., Corp. v. County of Norfolk, 6 Allen, 358; Fitchburg R. Co. v. Grand Junction R. & D. Co., 4 Allen, 198; Roxbury v. Railroad Corp., 6 Cush. 424; Inhabitants of Cambridge v. Charlestown Branch R. Co., 7 Metc. (Mass.) 70; Inhabitants of Norwich v. County Com'rs, 13 Pick. 60; Pub.St. c. 122, §§ 119-138; Gen.St. c. 63,§§ 46-63; Rev.St. c. 39, §§ 66-70; St.1885, c. 194; St.1874, c. 372, §§ 90-95; St.1872, c. 262; St.1846, c. 271; St.1842, c. 22. If, then, St.1890, c. 428, had made special provisions for the railroad crossings at grade in the city of Northampton, and had required the consent of the city council of that city before the grade of the public ways in the city, where they are crossed at grade by one or more railroads, should be changed under the provisions of that chapter, there would seem to be no valid objection to such legislation. If St.1892, c. 311, can be construed to be an amendment of St.1890, c. 428, and to provide that the grade of the public ways in the city of Northampton, described in the petition, where they are crossed by railroads at grade, should not be changed without the consent of the city council, it would, we think, be open to no valid objection, and the fact that it was made to apply to a case then pending under the original statute would not render the act void. At any time before a final decree is rendered in this cause, the legislature can repeal the statutes under which it proceeds, and thus prevent any decree from being rendered in it. As the whole subject of the crossing of highways by railroads can, from time to time, be regulated by the legislature, the legislature can, even after a final decree has been rendered, make other provisions, and require the crossings to be constructed in a manner different from that established by the decree. The legislature can amend the statutes under which this proceeding has been commenced; and if the amended act is made applicable to the pending proceeding, and is valid, the court, in rendering a final decree, must proceed in accordance with the statutes as amended. State v. Wheeling & B. Bridge Co., 18 How. 421; Davis v. Sawyer, 133 Mass. 289, 136 Mass. 239; New London N.R. Co. v. Boston & A.R. Co., 102 Mass. 386. It results from this view that the present proceeding cannot be considered as a suit for the determination of private vested rights, of which the parties cannot be deprived except by a taking for a public use and the payment of reasonable compensation. It is merely a quasi judicial proceeding for enforcing the laws of the commonwealth regulating a subject which is within the control of the legislature. As was said in New London N.R. Co. v. Boston & A.R. Co., 102 Mass. 386, in a somewhat similar case, the powers and duties of the court "belong to that class not strictly judicial, but partaking of the judicial and the executive character, like those of laying out highways and assessing...