N.Y. & N. E. R. Co. v. Town of Bristol

• Court: Connecticut Supreme Court
• Writing for the Court: ANDREWS, C. J.
• Citation: N.Y. & N. E. R. Co. v. Town of Bristol, 26 A. 122, 62 Conn. 527 (Conn. 1893)
• Decision Date: 06 March 1893
• Parties: NEW YORK & N. E. R. CO. v. TOWN OF BRISTOL et al.

26 A. 122

62 Conn. 527

NEW YORK & N. E. R. CO.

v. TOWN OF BRISTOL et al.

Supreme Court of Errors of Connecticut.

March 6, 1893.

Appeal from superior court, Hartford county; F. B. Hall, Judge.

Petition of the town of Bristol and others to require the New York & New England Railroad Company to remove a grade crossing. From the action of the railroad commissioners on the petition the railroad company, which is styled "plaintiff," appealed to the superior court, and from the judgment there entered, it appeals. Affirmed.

S. E. Baldwin and E. D. Robbins, for appellant.

J. J. Jennings, for appellees.

ANDREWS, C. J. The danger of grade crossings has received the attention of the general assembly of this state on numerous occasions. That every such crossing is a menace to human life is recognized; and repeated enactments, each supposed to be more stringent and effective to lessen the danger than former ones, have from time to time been passed. Indeed, the legislative will seems now to have become settled that all such crossings shall be removed without unnecessary delay. To carry out this determination, the general assembly, at its session in 1889, passed an act entitled "An act relating to grade crossings," which contains these provisions, (the whole act, chapter 220, Pub Acts 1889, is noted in the margin:)¹ "The directors of every railroad company which operates a railroad in this Btate shall remove or apply for the removal of at least one grade crossing each year for every sixty miles of road operated by it in this state, which crossings so to be removed shall be those which, in the opinion of the directors, are among the most dangerous ones upon the lines operated by it; and if the directors of any railroad company fail so to do the railroad commissioners shall, if in their opinion the financial condition of the company will warrant, order such crossing or crossings removed as in their opinion the said directors should have applied for the removal of under the above provisions, and the railroad commissioners in so doing shall proceed in all respects as to method of procedure and assessment of expenses as if the said directors had voluntarily applied therefor." In an earlier part of the same section the rule of procedure to be followed by the commissioners in making such order is given, viz.: "And if the aforesaid petition is brought by the directors of any railroad company, or in behalf of any railroad company, they shall order the expense of such alterations or removals, including the damages to any person whose land is taken, and the special damages which the owner of any land adjoining the public highway shall sustain by reason of any change in the grade of any such highway in consequence of any change, alteration, or removal ordered under the authority of this act, to be paid by the railroad company owning or operating the railroad in whose behalf the petition is brought." All the prior statutes respecting grade crossings had been permissive. They had authorized the directors of any railroad, or the proper officers of a municipality, to apply to the railroad commissioners for an order by which some grade crossing should be removed. None of them had made it compulsory upon any one to ask for such an order, nor had they laid the duty upon any one to take the steps necessary to remove such crossings. As expenses—sometimes quite large expenses—would be incurred in the changes incident to such removal, perhaps it is not strange that those statutes had done very little to abate the evil aimed at. The legislature of 1889 proceeded to apply a more rigorous rule. While leaving the permissive features of the former acts to remain in force, they commanded the directors of every railroad in the state to remove, or to apply for the removal of, a certain ratable number of the most dangerous grade crossings on the roads operated by them. But the railroad directors were interested, and might not obey the command, and another provision was added. Jurisdiction was conferred on the railroad commissioners. It is this last provision which the present case brings before the court for examination. What is the power of the railroad commissioners conferred by the act? And how must they proceed?

In arriving at the legislative intent as expressed in any statute it is always expedient to recur to the circumstances which surrounded the legislature at the time the statute was passed. In 1889 there was an urgent public demand for efficient legislation to remove the danger arising from grade crossings. At that time the Asylum street bridge commission was about finishing its labors. That commission had been created by the legislature, and directed to take such steps as were needed to remove a grade crossing in Asylum street in the city of Hartford. The validity of that commission had been established. Its efficiency and success had been demonstrated. In that instance, by the instrumentality of a commission, one grade crossing of exceptional danger had been removed. That was a precedent which might safely be followed. All grade crossings were dangerous, although not so highly dangerous as the one in Asylum street. A special commission was needed for the removal of that one. But in ordinary cases a general commission would be adequate. In the Asylum street case the legislature acted because the railroads and the municipality neglected to act. That commission was successful, because it was the instrument of the supreme power of the state. If, in other cases, the directors of railroads disobeyed the commands of the statute, and neglected to remove the dangerous crossings another commission, acting in like manner by the supreme power of the state, would be likely to be successful. In the one case the legislature had proceeded upon the theory that the Asylum street crossing was a nuisance dangerous to human life. Now the legislature was about to proceed upon the theory that all such crossings were nuisances dangerous to human life. Reading the statute now in question in the light of these circumstances, it is impossible not to believe that the legislature intended to invest the raiload commissioners, in the cases of grade crossings over which they were given jurisdiction by this act, with power of the same kind and clearly analogous to the power with which the special commission had been invested. The general commission, like the special one, was to be an instrumentality of the supreme power to remove dangerous nuisances. What was said by this court of the statute which created that special commission may with equal justice be said of the statute of 1889. "In scope and purpose it concerns the protection of life. Neither in intent nor fact does it increase or diminish the assets of any railroad corporation. It is the exercise of the governmental power and duty to secure safe highways. The legislature, having determined that the intersection of a railway with any highway at grade is a nuisance dangerous to life, in the absence of action on the part of the municipality or of the railroad may compel them to become the owner of the right to lay out new highways and new railways over such land, and in such manner as will separate the grade of the railway from that of the highway at intersections; may compel them to use the right for the accomplishment of the desired end; may determine that the expenses shall he paid by either corporation alone, or in part by both, and may enforce obedience to its judgment. That the legislature of the state has the power to do all this for the specified purpose, and to do it through the instrumentality of a commission, it is now only necessary to state, not to argue."

On the 12th day of March. 1891, the railroad commissioners, intending to obey the command contained in the said act, and to conform to the rule of procedure therein prescribed, issued an order, in which, after reciting that the directors of the New York & New England Railroad Company had failed to remove or apply for the removal during the year ending August 1, 1890, of any grade crossing of a highway which crossed or was crossed by their railroad, and that in their (the railroad commissioners') opinion the said directors should have applied for the removal of the grade crossing of their road and the highway known as Main street in the town or Bristol, and also the various notices, appearances, and hearings that had been had in the matter, they ordered and directed as follows: "And now, after such notices and hearings, we, being of opinion that the financial condition of the said New York & New England Railroad Company will warrant such order, and that public safety requires the same, do hereby order such crossing removed, and do determine and order that the following alterations, changes, and removals be made and done, to wit: That the method of crossing be altered so that said highway, instead of crossing said tracks at grade, as at present, be carried under said tracks, and for that purpose that the location of said crossing he changed by the removal of said tracks," etc., setting out minutely the changes to be made. "All of said changes and alterations and removals to be made and done by said railroad company, and the expenses thereof, including the damages to any person whose land is taken, and the special damages which the owner of any land adjoining the public highway shall sustain by reason of any change in the grade of such highway in consequence of any change, alteration, or removal ordered to be paid by said railroad company." From that order the said railroad company made the present appeal to the superior court in Hartford county. They made the town of Bristol, the railroad commissioners, and divers other parties defendants, and caused notice to be served on them to appear and make answers. In the superior court there were various pleadings filed; sundry motions were made, and there were orders thereon; there was a hearing and...