Mayor & Aldermen of Worcester v. Board of Railroad Commissioners , 113 Mass. 161 ( 1873 )

Gray, C. J.^*

These suits involve the validity of the proceedings of the board of railroad commissioners, under the St. of 1871, c. 343, § 11, in locating and defining the course, grade and mode of construction of a viaduct, to be made by the Worcester and Nashua Railroad Company and three other railroad corporations jointly, from a point on the line of the Worcester and Nashua Railroad, over Bridge Street, Mechanic Street and Front Street, to a point on the line of the Boston and Albany Railroad near the union passenger station in the city of Worcester, without application to or consent of the mayor and aldermen.

The subject is brought before the court by a petition of the mayor and aldermen for a writ of certiorari to quash the proceedings of the board of railroad commissioners; and by an information in equity in the name of the attorney general, at the relation of the city and of the mayor and aldermen thereof, to restrain the four railroad corporations from building the viaduct, for the reason that it will obstruct the public travel upon those streets.

By the St. of 1871, c. 343, the Legislature has determined by its sovereign authority that it is convenient and necessary for the public that there should be established in the city of Worcester a union station for the accommodation of the passenger traffic of the Boston and Albany Railroad Company and of four other railroad corporations whose roads terminate in that city, and a new viaduct for the accommodation of the freight traffic of these four sorporations, and that portions of the existing locations of railroads over certain public ways and grounds should be discon= tinued. In order to guard against the defeat or hindrance of the execution of its purpose, by the several railroad corporations, by the municipal authorities, or by local influences, the Legislature has itself defined the limits within which the station and the viaduct shall be located, and has delegated the duty of carrying into effect the principal features of its scheme, not to the railroad corporations or the ordinary local tribunals, but to boards of commissioners appointed by the supreme judicial and executive powers of the Commonwealth.

The position of the union passenger station has been fixed by special commissioners appointed by this court, after hearing the five railroad corporations and the mayor and aldermen, and their report has been returned and accepted, and thus, by the terms of the act, and the decision of the court, has become “ binding on all said parties.” St. 1871, c. 343, § 1. Mayor § Aldermen of Worcester v. Norwich Worcester Railroad Co. 109 Mass. 103.

The powers, conferred by the provisions of the act upon the board of railroad commissioners appointed by the Governor and Council, embraced the determination of the plan of the station, of “ its location with reference to the adjacent streets, and to the tracks of all said corporations, located or proposed to be located in the vicinity thereof,” and “ of the arrangement and location of said tracks ” such “ as in their judgment the safety and convenience of the public and the interests of all said corporations require ; ” and also of the lands which the Boston and Albany Railroad Company might take for the purpose of the union station, and for providing suitable approaches thereto, “ including the location of any street or way; ” as well as the establishment of the rules and regulations for the use of the station by the different railroad corporations j the fixing of the rent to be paid therefor by the other corporations to the Boston and Albany Railroad Company, and of the compensation to be paid by that corporation to the others upon the discontinuance of parts of their present locations; and the determination of the portions which some of those corporations, in extending their roads to the union station, might take and use of the locations of the others, and the lands which either might take within the city for depot or station purposes. St. 1871, c. 343, §§ 2, 3, 4, 6, 8, 9,10,15. No appeal is given from the decision of the railroad commissioners upon any matter submitted to them, except that by § 8 any party, dissatisfied with their award of compensation for rights under existing contracts or leases affected by the discontinuance of existing locations, may have the same reassessed by a jury.

As the earlier sections of the statute make the union of the five railroad corporations in one passenger station, the location and establishment of that station, and its erection by the Boston and Albany Railroad Company, independent of the wishes or the opposition of either corporation; so the eleventh section imperatively requires four of them to “ unite in the location and construction of one or more railroad tracks for their joint use, commencing at a point on the line of the Worcester and Nashua Railroad at or near Bridge Street in said city, and extending by a curved line across Bridge Street, Mechanic Street and Front Street, to a point on the line of the Boston and Albany Railroad east of Green Street; ” and submits all questions of the amount of contribution to the expense of this viaduct, and the manner of use of the same by each corporation, to the final determination of the railroad commissioners.

This section further provides that “ said tracks shall pass over said Bridge Street, Mechanic Street and Front Street, by suitable bridges; and said tracks and bridges shall be located, constructed and arranged in such manner and form as the board of railroad commissioners determines and directs, after due notice and hearing of said corporations and the mayor and aldermen of said city.” The Legislature, in framing this section, evidently deemed it essential to the fulfilment of its entire scheme for the accommodation of both the passenger and the freight traffic of all the corporations, that the powers of the railroad commissioners should be as paramount in relation to the viaduct, as they had already been made by the previous sections in regard to the station and the tracks in its immediate neighborhood.

The Legislature itself approximately determines the position of the two ends of the viaduct, and so far defines its course as to declare that it shall extend by a curved line over Bridge Street, Mechanic Street and Front Street. Within these limits, the location of the tracks and bridges of the viaduct is in the most explicit terms submitted to the determination of the railroad commissioners. The propriety of the course and direction of the location of railroad tracks, even when entrusted to the judgment of the railroad corporation itself, cannot be revised by this court, except in case of exceeding the limits prescribed by the Legislature, or of bad faith. Fall River Iron Works v. Old Colony & Fall River Railroad Co. 5 Allen, 221. The enactment now in question, while it provides that “ said tracks shall pass over ” these three streets “ by suitable bridges,” declares not only that “ said tracks and bridges shall be located,” but that they shall be “ constructed and arranged,” “ in such manner and form as the board of railroad commissioners determines and directs.” The power thus granted clearly includes the authority to fix and establish the height and grade, as well as the mode of construction in other respects, of these tracks and bridges; for the grade of the viaduct, in order to make it of any value for the object proposed, must have reference to the grade of the union station and of the intermediate tracks, and not be subordinate to the supposed necessities of the travel upon the three streets over which it passes or upon the other highways of the city. The “ suitable bridges,” here mentioned, must, in the light of the other provisions of the section and of the whole statute, be taken to mean such bridges, prescribed by the railroad commissioners, “ as ” (in the words applied in § 4 to the other tracks in the vicinity of the union station) “ in their judgment the safety and convenience of the public and the interests of all said corporations require.” We have no authority therefore to pass upon the comparative con- - enience of the location and grade of the viaduct, suggested by the mayor and aldermen, and of those determined by the railroad commissioners.

In this section, as elsewhere throughout the act, the mayor and aldermen of the city, so far as regards the union station, and the system of railroad tracks connected therewith, are treated, not as public officers entitled to any control, but as one of the parties subjected to the jurisdiction of a paramount authority. In the first and fourth sections, relating to the original location of the union passenger station, they are in terms classed with the several railroad corporations as “ parties in interest.” In this eleventh section, they are dealt with in the same manner, as parties to whom notice is to be given and who are to be heard, not as a tribunal which is to adjudicate. Their assent is not required to the taking of land by the Boston and Albany Railroad Company under § 2, for the purposes of the union station, and of suitable approaches thereto, although “including the location of any street or way,” nor to the taking of land by any of the railroad corporations under § 15, for the purposes of the act, or of depots or stations. They have no power under § 7, over the discontinuance of' existing locations, but only to allow the railroad tracks to remain temporarily thereon after such discontinuance ; and by § 22, on the contrary, they are required to lay out streets, as therein prescribed, over such discontinued locations, and to maintain railroad tracks thereon for the use of the abutters.

The seventeenth section does not, in our judgment, affect this case. It in no wise restrains or qualifies the power and authority of the railroad commissioners under § 11, and has no application to the acts required to be done by the four -railroad corporations jointly, in accordance with the direction of the railroad commissioners, in constructing the tracks and bridges which they are peremptorily required to construct over the three streets named in that section; but is limited in effect, and indeed in terms, to changes which, for the purposes of the act, “ said corporations respectively” are authorized, without being directed, to make in the grade and construction of their railroads; and requires the consent of the mayor and aldermen only when the several corporations have occasion “ to raise, lower, alter the course of, oi otherwise change any streets or ways in said city.”

The eleventh section does not require or authorize the railroad commissioners or the railroad corporations to raise or lower, alter the course of, or otherwise change, either of the three streets named therein, or any other street or way in the city. It simply provides for the building and maintaining of the viaduct according to the directions of the railroad commissioners.

The orders of the railroad commissioners, which are complained of in these suits, determine the course and grade of the tracks and bridges of the viaduct, direct that the abutments of all the bridges shall be placed upon the boundary lines of the three streets, and shall be built of the height of fifteen feet below the rails, and thirteen feet below the bottom of the superstructure, with a foundation of four feet more, which, if the grade of those streets should be lowered by the proper authority to the level of the top of the foundations, would afford ample room for the public travel over those streets to pass under the bridges.

For the reasons already stated, the court is of opinion that these orders cannot be held to be invalid, either for the reason that the bridges are not suitable, or because the consent of the mayor and aldermen has not been given to their location, arrangement or construction in the mode directed by the railroad commissioners.

The rights of all parties sustaining damage by these proceedings are fully secured by “ the general laws in like cases,” which the eighteenth section of the act expressly makes applicable, “ except as herein otherwise provided.”

The damages occasioned by laying out and maintaining the joint road of the four corporations by means of the viaduct may be assessed by the county commissioners, or, in case of dissatisfaction with their estimate, by a jury, under the Gen. Sts. c. 63, §§ 21 & seq. Parker v. Boston & Maine Railroad, 3 Cush. 107. It being admitted that this road, where it crosses the streets in question, will cause obstructions thereto, the railroad corporations cannot proceed to construct the viaduct until the county commissioners, upon the application of the railroad corporations or of the mayor and aldermen, shall have made a decree prescribing what alterations shall be made in those streets, and what structures at the crossing, (conformable, of course, to the viaduct as ordered by the railroad commissioners,) and requiring of the railroad corporations satisfactory security for compliance with the lawful requirements of the county commissioners, and for the indemnity of the city, under the Gen. Sts. c. 63, §§ 48, 49. For the damages caused to the estates of third parties by such alterations, the railroad corporations would be liable. Gardiner v. Boston Worcester Railroad, 9 Cush. 1. If they do not comply with such requirements, they may be compelled to do so by this court sitting in equity, or may perhaps be liable to indictment. Gen. Sts. c. 63, § 50. Roxbury v. Boston & Providence Railroad, 6 Cush. 424, and 2 Gray, 460. Commonwealth v. Vermont Massachusetts Railroad, 4 Gray, 22.

Several minor objections to the orders of the railroad commissioners remain to be noticed. (1.) The route of the tracks in question is fixed and determined by the St. of 1871, e. 343; and the provisions of the Sts. of 1872, c. 53, §§ 6-8, and c. 180, § 3, have therefore no application to the case. (2.) The corporations could not file a location of these tracks until it had been determined by the railroad commissioners. (3.) The general course of the line prescribed by the railroad commissioners being a curve, it was “ a curved line,” within the meaning of the St. of 1871, c. 343, § 11, although a short piece of it, taken by itself, was straight. (4.) That section providing for “ one or more railroad tracks,” the objection that the orders require the construction of two tracks is untenable. (5.) It was within the authority of the railroad commissioners, to require to be taken, for the construction of the tracks and bridges, and the convenient transaction of the business of the four railroad corporations interested, a strip of . land thirty-eight feet wide, being less than half the width of the land authorized to be taken for the ordinary location of a railroad under the Gen. Sts. c. 63, § 17. (6.) The St. of 1869, c. 408, establishing the board of railroad commissioners, containing no provision (such as is made by the Gen. Sts. c. 17, § 13, in the case of county commissioners) requiring the presence of three commissioners, the case falls within the general rule that a joint authority given to three or more public officers may be executed by a majority of them. Gen. Sts. c. 3, § 7, cl. 3. Reynolds v. New Salem, 6 Met. 340, 343.

The result is, that the orders of the board of railroad commissioners, determining the location, arrangement and construction of the bridges and tracks in question, are valid, and the Writ of certiorari is refused, and that, as other adequate remedies "are provided by law to compel the making of the necessary alterations of the streets over which these tracks pass, and the payment of damages occasioned thereby, therefore, upon the information of the attorney general, there must be Judgment for the defendants.

* This case was argued at Boston on November 17, before all the judges but Ames and Devens, JJ.