Brownell v. Railroad Commissioners , 163 Mass. 276 ( 1895 )

Field, C. J.

Without considering the various technical objections made to the maintenance of this petition, and assuming for the purposes of the case in favor of the petitioners that St. 1894, c. 392, is constitutional, we deem it proper to express our opinion upon what may be called the merits of the case. There is nothing in this statute which limits the authority of the railroad commissioners in the matter of granting further time to the railroad company for beginning the operation of the ferry to proceedings begun before August 1, 1894, or which requires the order of the railroad commissioners granting further time to be made before August 1, 1894, and we are of opinion that the statute was intended to give to the railroad commissioners power to grant further time on a petition filed after August 1, 1894. The order actually passed by the railroad commissioners is dated October 29,1894 j it was passed on a petition of the Old Colony Railroad Company, filed September 29, 1894, and is as follows: “ Ordered, that, under and pursuant to the provisions of section 2 of the act aforesaid, the first day of February, 1895, be prescribed as the day after which, instead of after the first day of August, 1894, the said Old Colony Railroad Company shall forfeit to the Commonwealth one hundred dollars a day for each day’s delay in operating a ferry across the Acushnet River between the city of New Bedford and the town of Fairhaven, as provided in said act; with leave to the petitioner to apply for further postponement of time, and with leave to any ten or more citizens of said city or town to apply for a vacation of this order, for respective cause shown, and after notice and hearing on such application.”

On examining the whole return of the railroad commissioners, there is some reason to believe that they thought that they could grant further time, so far as concerns the incurring of forfeitures, without granting further time so far as concerns the enforcement in equity of the specific duty of operating the ferry, and that they intended to grant further time to the railroad company only so far as concerns the incurring of forfeitures, in order that the company might try without the risk of incurring forfeitures the constitutionality of the statute in the petition in equity referred to in the report, which had been brought to enforce the provisions of the act. That petition was filed on August 18, 1894, and is still pending. We are of opinion that the statute was not intended to authorize the railroad commissioners to make any such discrimination. The intention was that the railroad commissioners might grant further time for delay in operating the ferry, if they thought that, after a hearing, it should be granted, but further time, if granted, must be granted for all the purposes of the statute, and the grant would operate to excuse the railroad company from operating the ferry within the time granted, whether a suit should be brought for the recovery of forfeitures or for the specific enforcement of the other provisions of the act. But whatever may have been the reasons why the railroad commissioners passed the order in the form they did, the order must be construed according to its terms when taken in connection with the petition on which it was made and with the subject matter. The petition of the Old Colony Railroad Company requested the railroad commissioners, after a hearing, to “ prescribe such further time for delay in operating a ferry between New Bedford and Fairhaven, under chapter 392 of the Acts of the year 1894, as may appear to you [the Railroad Commissioners] to be reasonable.” The order, therefore, must be construed either to relate solely to forfeitures, in which case it would be altogether unwarranted, or to grant delay in operating the ferry for all purposes up to February 1, 1895. We are inclined to give to it the latter construction, and so construed we think that it was within the authority intended to be given to the railroad commissioners. The present case was heard by the full court on January 18, 1895, and it was apparent then that a decision could not be had before February 1,1895, when the time limited in the order expired, unless there should be a “ further postponement of time.” We have no knowledge that the time has been further extended, or that there has been any application for that purpose. The Old Colony Railroad Company is not, strictly speaking, a party to this proceeding, and the Commonwealth is not, unless the petitioners be considered as representing the Commonwealth. We therefore express no opinion upon the constitutionality of the statute, or whether forfeitures can be recovered by a petition in equity brought by ten or more citizens of the city of New Bedford or of the town of Fairhaven. As the order was made on a petition filed after the petition in equity was brought, and as the time limited in the order has expired, we see no reason why these questions cannot be determined in the petition in equity.

The present petition must be dismissed, without prejudice to the other proceedings. So ordered.