Mayor of Worcester v. Norwich & Worcester Railroad , 109 Mass. 103 ( 1871 )

Chapman, C. J.^*

The St. of 1871, c. 343, provides that the Boston and Albany, the Norwich and Worcester, the Providence and Worcester, the Worcester and Nashua, and the Boston, Barre and Gardner Railroad Companies may and shall unite in a station in the city of Worcester, for the accommodation of the passenger trains of all said corporations. It further provides that the station shall be located on the northerly side of the main tracks of the Boston and Albany Railroad Company, between Green Street and Grafton Street, or upon the easterly side of Grafton Street, and not more than fifteen hundred feet distant therefrom. It does not determine which of these locations shall be adopted, but authorizes this court to appoint three commissioners to hear the parties and determine that question, and their report, being returned to the court and accepted, is to bind all the parties. The station is to be erected and kept in repair by the Boston and Albany Railroad Company, and is to be used by the other companies for compensation as prescribed by the act. It provides for a discontinuance of the present stations of the several roads, and authorizes the other corporations to extend their tracks and do whatever else is necessary to unite at this union station, and take lands for the purpose; and with the consent of the mayor and aldermen of Worcester grades of streets may be changed.

The commissioners have been appointed, and have selected one of the places designated in the act, for the station, and their report is presented to us for acceptance. Some of the parties named in the act object to the whole proceeding, and objections are made to it in behalf of other parties not named in the act.

Proof is offered, that to extend the several railroads named to a union passenger station east of Grafton Street would make it necessary for each of them to extend its tracks a great distance, amounting in the aggregate to many thousand feet, and at a cost amounting in the aggregate to several hundred thousand dollars; and that these tracks must be laid through the heart of a populous city, and crossing over many highways, and lands must be taken now belonging to private persons. Some of the corporations have never assented to the act, and it is contended that their assent is necessary to its val’dity. Notice has been given by the commissioners to the parties above named; but it is contended that other parties not named were entitled to notice. For these reasons, and some others to be adverted to hereafter, both the validity of the act, and of the proceedings under it, are denied, and it is contended that the report ought not to be accepted.

On the other hand, the petitioners contend that the act is valid under the provisions of the Gen. Sts. e. 68, § 41; which are similar to prior statutes, affecting all railroads that have been chartered since March 11, 1831, and subjecting them to alteration, amendment or repeal at the pleasure of the legislature; and that the proceedings under the act are valid.

The court has repeatedly had occasion to consider the provisions of the General Statutes referred to. Fitchburg Railroad Co. v. Grand Junction Railroad Co. 4 Allen, 198. Commonwealth v. Eastern Railroad Co. 103 Mass. 254. Commonwealth v. Essex Co. 13 Gray, 239. Commissioners on Inland Fisheries v. Holyoke Water Power Co. 104 Mass. 446. In conformity with these decisions, we think that the act of 1871, c. 343, is a reasonable exercise of the right thus reserved to the legislature. In chartering a railroad corporation, and conferring upon it the power to exercise the right of eminent domain, a power is granted which is carefully guarded by the Constitution. The property must be taken for public uses. If the power were granted by the legislature for private uses only, the grant would be unconstitutional and void. The public use, for which it is granted to a railroad corporation, is as a way for "public travel and the transportation of property. One of the most obvious reasons for reserving to the legislature the right to alter, amend or repeal such charters is to enable it to compel an unwilling corporation to perfect and extend its connections with other railroads, as the convenience of the public may from time to time require. The Boston and Albany Railroad Company must of necessity have a passenger station in Worcester; and it is obviously important to the public that all the other railroads named shall be connected with it. At any rate, the legislature was the exclusive judge as to that matter, and an amendment of the several charters, so as to secure such an object, was a reasonable exercise of their reserved right. It is no valid objection to such amendments, that they require corporations to extend their tracks, and to exercise the right of eminent domain for this purpose, and to incur additional expense. The power to extend their tracks is often granted at their own request; and is granted with no less propriety when the interests of the public require it. The power to alter a charter includes the right to take away some of the powers granted by it, or to add new powers without which improvements of the greatest importance would be ultra vires. Their compensation for the outlay is in the tolls they receive from travellers or others.

It is contended that, if this act is sustained, it will imply a power in the legislature to require a railroad corporation to extend its track to the state line in any direction. This is putting an extreme case; but we have no occasion to consider such a case, for all the roads named in the act, and required to extend their tracks, have a terminus in the city of Worcester, and are to be extended only through a portion of the city to the station of the Boston and Albany Railroad. The power to require a track to be lengthened certainly exists to this extent, if it exists at all.

As the right of the legislature to alter, amend or repeal the charters of these corporations is absolute, and not dependent upon their consent, it is immaterial whether such consent has been given or not.

Nor was notice of the appointment or the proceedings of the commissioners necessary to be given to parties not specified in the act; the terms of the act not requiring such notice. It is undoubtedly true that the interests of many parties are affected more or less directly by the required change; as for example, parties who have contracts for running expresses over the several roads, or who have leases of rooms in the several station-houses for restaurants or other uses, or who have various other contracts with the corporations for the transaction of business, and more especially persons whose lands are liable to be taken. But the Boston, Hartford and Erie Railroad Company, which has a lease of the Norwich and Worcester Railroad, the trustees of the Berdell mortgage, and the assignees in bankruptcy of the Boston, Hartford and Erie Railroad Company, are the parties most directly and deeply interested. All these parties have derived their interests from the original corporations, to whom the power to exercise the right of eminent domain was granted, and they hold these as signed and derivative interests under express or» implied authority granted to those corporations by the legislature. Yet none of these leases or assignments can be construed to extend to the lessees or assignees the power to exercise the right of eminent domain, or to restrict the right of the legislature to alter or repeal the charters. Their, rights are subordinate to that right; and if the legislature shall see fit to exercise it, they are not bound to give notice to any of these parties. The new union passenger house might have been established by the act itself, without the agency of any commissioners. The act has provided for everything except the choice between two fixed places. This selection constituted the whole duty and authority of the commissioners; and as all other questions were settled by the act, there was no occasion to hear any parties, except those who were required to do the work prescribed, and the city of Worcester whose streets were subject to be changed. There is no ground for the assertion that other parties had any right to be heard on the question of the selection between the two places named in the act. The lease by the Norwich and Worcester Railroad Company did not make the lessees, or their representatives, parties to the grant of power to exercise the right of eminent domain. That right remained in the original corporation, ánd the legislature might properly deal with it exclusively in amending their charter.

It is contended that, by the terms of the twentieth section of the act, the Boston, Hartford and Erie Railroad Company is made a party to the proceedings. We do not so interpret it. It gives them rights in the new location and station, when completed, which will enable them to enjoy the benefit of their lease j but does not give them a right to be heard before the commissioners.

Report accepted.

* Colt, J., did not sit in this case.