in re Selectmen of Norwood

• Decision Date: 15 May 1894
• Parties: In re SELECTMEN OF NORWOOD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 259

37 N.E. 199

In re SELECTMEN OF NORWOOD et al.

Supreme Judicial Court of Massachusetts, Norfolk.

May 15, 1894

COUNSEL

J.J. Feely, for selectmen of Norwood.

F.A Farnham, Roger F. Sturgis, and Moorfield Storey, for New York & N.E.R. Co.

John C Lane, for respondent Shattuck.

OPINION

KNOWLTON J.

This case comes to us on exceptions of the New York & New England Railroad Company to rulings in the superior court, and on an appeal by the same party involving substantially the same questions as those raised by the bill of exceptions. There are also exceptions of one Shattuck, a landowner, who claimed a right to appear before the court, and be heard as a party. There are three petitions under St.1890, c. 428,--two by the selectmen of Norwood, and one by the New York & New England Railroad Company,--which were ordered to be consolidated, and heard as one. They relate to crossings of the New York & New England Railroad Company by public highways at grade, and they severally ask that such changes may be made in the way as will avoid a crossing at grade. Commissioners were appointed by the superior court; a report was made by the commissioners; a special master was subsequently appointed to hear the parties, and find the facts relative to certain objections made by the railroad company; and, after a report of his findings, a decree was entered by the court confirming the report of the commissioners.

The court rightly refused to rule that no proper petition had been filed. It is not necessary that a plan or specifications showing the nature of the alterations prayed for should accompany the petition, or that the alterations desired should be set forth with any greater particularity or precision than was done in these petitions. The precise manner in which the separation of the grades is to be accomplished is to be determined by the commissioners and the court, and need not be set forth in the petition.

There was no error in the refusal to rule "that the commissioners' report was erroneous, as a matter of law, in that it required the discontinuance of an existing way in each of the three cases in question, and the building of a new way, or of new ways, in substitution therefor, which were not prayed for in said petitions, or either of them." Such changes as were made under the two petitions of the selectmen of Norwood were within the language of the statute, which was followed in the petitions. In regard to the crossing on Washington street, and also that on Guild street, the petitioners asked "that an alteration should be made in such crossing, in the approaches thereto, in the location of said public way, or in the grades thereof, so as to avoid a crossing at grade." We are of opinion that this language is broad enough to authorize a change in the place of crossing, if, after the change is made, it remains a crossing of the same street, accommodating substantially the same travel, so that it can fairly be called the same crossing removed a short distance to a new location. An alteration of the public way is expressly authorized, as well as an alteration of the crossing; and these provisions, taken together, considered in reference to the purpose to be accomplished, plainly imply that the location of the crossing may be changed. In many cases the relative heights of the railroad track and of the land in the vicinity of a crossing are such as almost to require a permanent removal of the crossing for a short distance, in order conveniently to carry the way over or under the track. Davis v. Commissioners, 153 Mass. 218, 26 N.E. 848. It would be too narrow a construction of the language of the statute to hold that there could be no change of a crossing to a new location, which should leave it substantially the same crossing, and the same way. What the commissioners did under the petitions relating to these two crossings was to make a change in the location of each of the ways and of the crossings, which is apparently necessary to the construction of a way at an easy grade under the railroad, and which does not materially affect the public travel, save as it carries it under the railroad, instead of across it, at grade. The words, "or that such crossing should be discontinued with or without building a new way in substitution therefor," which immediately follow the language we have been considering, apply to a case where a crossing at grade is discontinued, and no other crossing is provided near it, and where one is provided on a new way materially different from the old one, in reference to its location, or the persons and travel which it is intended to accommodate, which new way may fairly be considered a substitute for the other.

It is contended that the statute under which these proceedings are had, as construed by the superior court, is unconstitutional. It is quite clear that a statute providing for general public improvements, to be paid for as the changes of grade are to be paid for under this statute, would be unconstitutional, as an attempt to impose taxes which would not be proportional. The cost of these changes is to be paid by the town, the railroad company, and the state, in proportions which are fixed, without reference to the value of the property owned by them, respectively and without reference to the benefits which they severally receive in any particular case. This would not be a legitimate exercise of the power of taxation to meet public charges. See Const.Mass pt. 2, c. 1, art. 4; Dorgan v. Boston, 12 Allen, 223-235; Merrick v. Amherst, Id. 500; Boylston Market Ass'n v. Boston, 113 Mass. 528; Howe v. Cambridge, 114 Mass. 388. The validity of this statute does not depend upon the right of the legislature to levy taxes. It was enacted rather in the exercise of the power of the legislature to enact all needful laws to prevent accidents, and to provide as well for the convenience as the safety of the public while traveling on highways across railroads, or while being transported in the cars of the railroad companies. It would have been in the power of the legislature, in granting charters to railroad corporations, to provide that the railroad should not be constructed across a public highway without carrying the highway over or under the railroad, and that all the expenses of changing the grade of the way, and constructing the approaches to the railroad, should be borne by the railroad corporation. If, by an increase in the amount of travel at a grade crossing, or of the number of trains running over the railroad, or changes in the manner of running trains, or of the modes of travel on a highway, or if for any other reason, it should seem to the legislature best for the public interest that a grade crossing should be abolished, it would be within the constitutional authority of the legislature to forbid the continuance of it, and to require the railroad company to pay the whole, or any part, of the cost of making the change. City of Roxbury v. Boston & P.R. Corp., 6 Cush. 424; Com. v. Eastern R. Co., 103 Mass. 254; Worcester v. Norwich & W.R. Co., 109 Mass. 103; In re City of Northampton, 158 Mass. 299, 33 N.E. 568; Railroad Co. v. Town of Bristol, 14 Sup.Ct. 437; Appeal of New York & N.E.R. Co., 58 Conn. 532, 20 A. 670; Appeal of New York & N.E.R. Co., 62 Conn. 527, 26 A. 122; Boston & M.R. Co. v. County Com'rs, 79 Me. 386, 10 A. 113; State v. Wabash, St. L. & P. Ry. Co., 83 Mo. 144. This it might do, in the exercise of the police power, for the protection of the people; and its decision in regard to what is right and proper in each particular case, or in any class of cases, would not be subject to revision by any other tribunal. This would not be taking from the railroad company its property, or any vested right. It would be merely prescribing, in the interest of the public, the mode of constructing its road. Of the power to prescribe such regulations for railroad corporations, there...