Selectmen of Gardner v. Templeton St. R. Co.

• Decision Date: 21 October 1903
• Citation: 184 Mass. 294,68 N.E. 340
• Parties: SELECTMEN OF GARDNER INHABITANTS OF GARDNER v. TEMPLETON ST. RY.(two cases). INHABITANTS OF GARDNER v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 294

68 N.E. 340

SELECTMEN OF GARDNER INHABITANTS OF GARDNER v. TEMPLETON ST. RY.(two cases). INHABITANTS OF GARDNER v. SAME.

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1903

COUNSEL

James A. Stiles, for petitioner.

Walter A. Buie and Clarence F. Eldredge, for defendants.

OPINION

LORING J.

On July 18, 1899, the selectmen of Gardner, acting under St. 1898, c 578 (now Rev. Laws, c. 112), granted to the defendant a location in the public highways within that town. It is provided by section 13 of this act (now Rev. Laws, c. 112, § 7) that, in case they are of opinion that public necessity and convenience require the granting of the location, the selectmen may 'prescribe how the tracks shall be laid and the kind of rails,' and other appliances which shall be used, and that they may 'impose such other terms conditions and obligations in addition to the general provisions of law governing such companies as the public interest may in their judgment require.' Acting under this section, the selectmen prescribed in the third article of the location that the company should use a T rail, with two exceptions. In case of the first exception the selectmen prescribed that from one point to another point therein specified a girder rail should be used, and in case of the second exception it was provided that between two other specified points, 'if the road * * * prove unsatisfactory to the selectmen, the board may at any time within two years from the completion of the road order that portion of the track laid under this location and lying between said crosswalk and the brook next westerly to be taken up and girder rails substituted therefor, with granite block paving between the rails and for eighteen (18) inches outside thereof.' On June 11, 1901, the board, after hearing, determined 'that the track of said street railway company' between the points specified in the second exception 'is not satisfactory,' and directed the defendant, in compliance with the third article of its grant of location, to 'take up its track now laid between the aforesaid crosswalk and the aforesaid brook and substitute therefor a track laid with nine (9) inch girder rails, with granite block paving between the rails and for eighteen (18) inches outside the same. The entire work to be done and the street to be left in a condition satisfactory to this board.' This the company refused to do, and a bill in equity was brought, under Rev. Laws, c. 112, § 100, to compel the observance of this order of the selectmen. We are of opinion that it is well brought.

The defendant's first contention is that, when the selectmen had prescribed what the original construction of the road should be, their power was exhausted, and this provision was void. But we are of opinion that in prescribing the original construction the selectmen could prescribe that the company, at its election, could use a cheaper rail without granite paving within the rails and for eighteen inches outside, on condition that, if that construction did not prove satisfactory to them, it should be changed within a specified time, and the more expensive construction carried into effect by the railway. This bill is brought, not to enforce a contract between the railway and the town, as the defendant contends, but to compel the observance by the railway of this 'order' made by the selectmen of the town of Gardner in accordance with the provisions of what is now Rev. Laws, c. 112, § 100.

The payment by the defendant of the excise tax under what is now Rev. Laws, c. 14, §§ 43-47, exempts it from making repairs on the public ways (Id. c. 112,§ 44), but it has nothing to do with its duty to construct the road in compliance with the grant of location.

There was nothing in the long offers of evidence made by the defendant. It was immaterial that the present owner of this street railway is financially embarrassed, and is not able to carry the order of the selectmen into effect. The fact, if it was a fact, was also immaterial, that the selectmen ought to have been satisfied with the T rail. It is competent for selectmen, acting under Rev. Laws, c. 112, § 7, to prescribe that the construction shall be done to their satisfaction. If they do so prescribe, their determination, at least in the absence of fraud, is final, and cannot be transferred to or controlled by the court. See, in this connection, Rice v. Middlesex Commissioners, 13 Pick. 225. It was not competent to vary and control the written grant of a...