Selectmen of Brookline

• Decision Date: 02 July 1920
• Citation: 236 Mass. 260
• Parties: SELECTMEN OF BROOKLINE, petitioners.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 260

SELECTMEN OF BROOKLINE, petitioners.

Supreme Judicial Court of Massachusetts, Norfolk.

July 2, 1920

May 17, 1920.

Present: RUGG, C.

J., BRALEY, CROSBY CARROLL, & JENNEY, JJ.

Grade Crossing. Railroad. Statute. Damages, Apportionment of expense of rebuilding bridge over railroad. Constitutional Law Obligation of contracts, Police power, Public service corporations.

St. 1908, c.

542, amending St 1906, c. 463, Part I, Sections 23, 25, by broadening and extending their provisions so that, where previously they related only to the construction, maintenance and repair of highway bridges over railroad locations, after the amendment they applied to cases where there was need of the "rebuilding of a highway bridge or any structural change or renewal for the purpose of strengthening or improving it," while it could have no retroactive effect as to vested rights, conferred an authority coextensive with the statute which it amended which thereafter must be read as if it originally had been in the amended form, and neither the provisions of the amending statute nor those of the statute as amended are, restricted to railroad crossings altered after the amendment.

Upon proceedings tinder St. 1906, c. 463, Part I, Sections 23, 25, after their amendment by St. 1908, c. 542, a highway bridge in a town, which had been built over a railroad in accordance with a decree following proceedings under Pub. Sts. c. 112, Sections 131, 132, ordering that the town should bear "all future charges for keeping said bridge and the approaches thereto in repair," way be ordered to be rebuilt and a part of the expense of such rebuilding may be assessed upon the railroad. The provisions of St. 1908, c. 552, are not inconsistent with those of St.

1906, c. 463, Part I, Sections 23, 25, as amended by St. 1908, c. 542.

A railroad corporation is a creature of the Commonwealth engaged in the doing of a public business and is bound by any reasonable statutes for the regulation of this business which the Legislature chooses to enact.

St. 1908, c.

542, amending St. 1906, c. 463, Part I, Sections 23, 25, is not obnoxious to the provisions of either the Federal or the State

Constitution.

A part of the expense of rebuilding a highway bridge over a railroad or of making any structural change or renewal for the purpose of strengthening or improving it upon proceedings under St. 1906, c. 463, Part I, Sections

23, 25, as amended by St. 1908, c. 542, may be assessed upon the railroad corporation although it receives no benefit therefrom.

It could not be ruled as a matter of law, at the trial of an application under St. 1906, c. 463, Part I, Section 27, for a revision of a report of a special commission relative to the rebuilding of a highway bridge, previously constructed over a railroad in the town of Brookline, that the railroad corporation received no benefit from such rebuilding, because thereby there was furnished at a crossing over the railroad a bridge more substantial and safe than the previous bridge and thus possible delay and damage which might be incident to a defect in the previous bridge were prevented.

In the proceedings under St. 1906, c. 463, Part I, Sections 23, 25, as amended by St. 1908, c. 542, above described, which were new proceedings, the intent and understanding of the parties to the proceedings under Pub.

Sts. c. 112, Sections 131, 132, which resulted in the construction of the original bridge, were held to be immaterial.

Where, after a decree of county commissioners that a highway bridge over a railroad in a town should be rebuilt, the town carried the decree into effect "by agreement of all parties . . . and . . . paid the charges and expense of rebuilding" previous to a decree in proceedings instituted by it under St. 1906, c. 463, Part I, Sections 23, 25, as amended by St.

1908, c. 542, the railroad company, at the trial of an application under Section 27 of the amended statute for a jury to revise the report of the special commission appointed under the amended Sections 23, 25, is entitled to a ruling that it need not pay to the town interest upon that part of the amount so expended by the town which afterwards was apportioned to be paid by the railroad company.

TWO PETITIONS, filed in the Superior Court on April 6, 1916, under St. 1906, c. 463, Part I, Sections 23, 25, as amended by St. 1908, c. 542, Sections 1, 2, for the appointment of special commissions to determine questions relative to the rebuilding of bridges over the Boston and Albany railroad at Cypress Street and at Aspinwall Avenue in Brookline under decrees of the county commissioners of Norfolk County entered on February 1, 1916.

Commissions were appointed and filed reports, which are described in the opinion.

Thereafter the Boston and Albany Railroad Company and the New York Central Railroad Company applied, under St. 1906, c. 463, Part I, Section 27, for revision of the reports of the special commissions. The applications were tried together before Keating, J. Material evidence, the substance of requests of the railroad companies for rulings and instructions, and the special findings of the jury are described in the opinion. The judge under St. 1913, c. 716, reported the cases to this court for determination, stating that he did so "upon the following terms and conditions which shall apply to each case: If upon all the evidence my rulings and instructions were correct, a decree shall be entered for the petitioners in accordance with the jury's special findings; if my rulings or instructions were wrong, a decree shall be entered in accordance with such rulings as I ought to have made, if the court is satisfied that it has before it all the facts necessary for determining the questions in dispute. If the court shall be of the opinion that it has not before it sufficient facts to determine said questions, the case shall stand for such further hearing as shall accord with the determination of the court.

"

St. 1908, c.

542, approved May 26, 1908, amending St. 1906, c. 463, Part I, Sections 23, 25, reads as follows:

"Section 1. Section twenty-three of Part I of chapter four hundred and sixty-three of the acts of the year nineteen hundred and six is hereby amended by inserting after the word `board,' in the seventeenth line, the words: -- This proceeding may include any case where there is need of the rebuilding of a highway bridge or any structural change or renewal for the purpose of strengthening or improving it, -- and by inserting after the word `building,' in the twentieth line, the words: -- rebuilding, changing, renewing, -- so as to read as follows: -- Section 23. If a public way and a railroad cross each other, and the board of aldermen of the city or the selectmen of the town in which the crossing is situated, or the directors of the railroad corporation, or the directors of a street railway company having tracks on the said way are of opinion that it is necessary for the security or convenience of the public that an alteration which does not involve the abolition of a crossing at grade should be made in the crossing, the approaches thereto, the location of the railroad or way, or in a bridge at the crossing, they shall apply to the county commissioners, or, if the crossing is situated in the city of Boston, to the board of railroad commissioners, who shall, after public notice, hear all parties interested, and, if they decide that such alteration is necessary, shall prescribe the manner and limits within which it shall be made, and shall forthwith certify their decision to the parties and to said board. This proceeding may include any case where there is need of the rebuilding of a highway bridge or any structural change or renewal for the purpose of strengthening or improving it. In case any street railway company is authorized to lay and use tracks upon the said way, the said company shall bear such part of the expense of building, rebuilding, changing, renewing, repairing or improving a bridge forming a part of said way, or of altering or improving the approaches thereto, as shall be deemed to be just by the commission provided for in sections twenty-five and twenty-six.

"Section 2. Section twenty-five of Part I of said chapter is hereby amended by inserting after the word `such,' in the sixth line the words: -- bridge or, -- and by inserting after the word `such,' in the twenty-first line, the words: -- bridge or crossing and, -- so as to read as follows: -- Section 25. A special commission of three disinterested persons, who shall be appointed as provided in the following section, shall determine which party shall carry such decision into effect and which party shall pay the charges and expenses of making such alteration and the future charges for keeping such bridge or crossing and the approaches thereto in repair, as well as the costs of the application to the county commissioners, or the board of railroad commissioners, and of the hearing before said special commission; and it may apportion all such charges, expenses and costs between the railroad corporation, the street railway company having tracks on said way, and the counties, cities or towns in which said crossing is situated and other cities and towns which may be specially benefited. If a street railway company is authorized to lay and use tracks upon any bridge in a highway which is built or repaired or altered as above provided for, or the approaches to which are altered or improved as above provided for, the said commission shall determine what part of the charges and expenses of making such changes or improvements, or of keeping such bridge or crossing and approaches in good condition, shall be paid by the said street railway company."

St. 1908,...