Parsons v. City of Northampton
| Decision Date | 24 September 1891 |
| Citation | 28 N.E. 350,154 Mass. 410 |
| Parties | PARSONS et al. v. CITY OF NORTHAMPTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.G. Delano, for petitioners.
R.W Irwin, for respondent.
This petition of 10 tax-payers, brought under the provisions of Pub.St. c. 27,§ 129, [1]asks us to enjoin the city of Northampton from defraying any part of the expenses of the separation of the railroad and the street at the South-Street crossing. The alterations, which at the time of the filing of the petition were in process of construction under a decree of the superior court, have been adjudged necessary, and ordered by the county commissioners, on proceedings under the provisions of Pub.St. c. 112, § 129, [2] of which they assumed and exercised jurisdiction upon an expression of opinion and petition purporting to be made by the mayor and aldermen. It is now claimed that the payment of any part of the expenses of these alterations by the city would be an abuse of its powers, because public school property has been taken by the proceedings, and because the county commissioners assumed and exercised jurisdiction in consequence of the opinion of the mayor and aldermen that an alteration of the crossing was necessary, while in fact that board had never in regular session passed a vote or taken any action with reference to the subject, and there is no record of such action.
The power of the commissioners was considered by this court in the case of Davis v. Commissioners, 153 Mass.--, 26 N.E. 848, a petition for certiorari, brought by citizens and tax-payers who owned lands upon that portion of South street discontinued by the alterations. The objections there urged were overruled. But these petitioners aver that they were none of them parties nor privies in estate or intent to the decree of the commissioners, and were not entitled to bring a petition for a writ of certiorari to quash the same; and also that on December 29, 1890, the mayor and aldermen have instituted, under the Statutes of 1890, c. 428, other proceedings for the separation of the grades of South street and the railroad at the same crossing. The petition for certiorari was filed on May 21, 1890, and dismissed on February 25, 1891. The award of the special commission was confirmed by the superior court on June 4, 1890. The Statutes of 1890, c. 428, which placed upon the state a proportion of the expense of the separation of grades in cases thereafter commenced, took effect June 21, 1890. The work of constructing the alterations at the crossing was commenced about March 15 1891, and was prosecuted continuously and in good faith by the railroad company. The present petition was not filed until June 20, 1891, at which time $15,000 had been expended.
The report of the single justice finds that the location of the bridge and its approaches is a reasonable and suitable one and that the school lot is not materially injured for school purposes, and that its market value is but little diminished. The city has never objected to the taking of the school lot, nor made any claim for damages, while the only heir of the grantor of that portion of the lot taken has released all right in it, and does not object to the taking. The rapid growth of the city and the great increase of traffic upon the railroad are matters of common knowledge. The protection of the lives and property of the general public from the dangers incident to level crossings has long been recognized as an imperative necessity, and the purpose of the legislature to do away with such crossings so far as possible is, as was said in Davis v. Commissioners, ubi supra, obvious.
The facts required by Pub.St. c. 112, § 129, to give the county commissioners jurisdiction are that there shall be a crossing, and that either the mayor and aldermen of the city or the selectmen of the town, in which the crossing is, or the directors of the railroad corporation, shall be "of the opinion that it is necessary for the security or convenience of the public that an alteration should be made." Neither the mayor and aldermen, selectmen, nor directors make an adjudication of the necessity, which is to be determined by the commissioners; and the statute prescribes no mode in which the opinion of the mayor and aldermen, selectmen, or directors shall be arrived at or communicated. In the present instance, the mayor and aldermen signed and presented...
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