In re Railroad Commissioners' decision

Whitehouse, J. In a petition filed November 10, 1893, the Canadian Pacific Railway Company asked the railroad commissioners of Maine to determine whether a highway laid out by the county commissioners in an unincorporated town in Piscataquis county should be permitted to cross its railway at grade near its station called Lakeview; and also to determine the manner and condition of crossing and how the expense of building and maintaining that part of the highway within the limits of the railway, should be borne. In their decision reported to the February term, 1894, of the Supreme Judicial Court in that county, the railroad commissioners held that their only authority — 251 — in the premises was derived from Revised Statutes, c. 18, § 27, as amended by the acts of 1885, and 1889 : that the statutes thus amended have no application to such crossings by highways laid out in unincorporated towns, and therefore declined to take-jurisdiction of the subject matter. The presiding judge affirmed this decision in a pro forma ruling to which the petitioner has exceptions. The question now to be considered, therefore, is whether such jurisdiction of railroad crossings in unincorporated places is conferred upon the railroad commissioners by existing statutes. We think it is. An analytical and historical review of the legislation on this subject from 1853 to 1889, clearly shows the progressive tendency of legislative opinion to have been in harmony with the judgment of this court as expressed in re Railroad Commissioners, 83 Maine, 273, that, " public safety requires the intersection of railroad tracks and roads tobe under the control of the railroad commissioners and when the last enactment (c. 282, laws of 1889) is construed in the light of all preceding enactments on the same subject, it satisfactorily appears that their authority over such crossings in unincorporated places is unquestionably within both the literal terms and the true scope and purpose of the law. It was provided by the Act of 1853 (c. 41, § 3) that the conditions and manner of locating railroads across highways should be determined in writing by the county commissioners, and this provision appears in the Revised Statutes of 1857 and of 1871. Chapter 214 of the public laws of 1874 allowed town ways and highways to be laid out across, over or under any railroad track, and imposed upon the railroad company the expense of building and maintaining that part of the way within the limits of the railroad. Chapter 43 of the laws of 1878 provided that when such crossing wTas at grade such expense should be borne by the railroad, and when not at grade the railroad commissioners should determine whether such expense should be borne by the railroad company or by the town, or be apportioned between the railroad and the town. — 252 — Section 2 of chapter 167 of the laws of 1883, provided that "when any way is laid out across a railroad, the railroad commissioners, upon application of the parties owning or operating such railroad, shall . . . determine the manner and conditions of crossing such railroad.” But this act was not deemed a repeal by implication of the provision in the preceding act of 1878 that when the crossing was at a grade, the expense should be borne by the railroad ; for in the revision of 1883 it is still provided that when town ways and highways are laid out across, over or under any railroad track, the railroad commissioners, on application of the parties owning or operating the railroad, shall upon notice and hearing determine the number and conditions of crossing the same ; and when such way crosses such track at grade, the expense of building and maintaining so much of such way as is within the limits of such railroad shall be borne by the railroad company. R. S., c. 18, § 27. Chapter 310 of the laws of 1885, provides that the railroad commissioners should thus determine the manner and conditions of crossing " on application of the municipal officers of the city or town wherein such crossing is situated, or of parties owning or operating the railroad.” Although not directly related to the point under discussion, ■section 1 of the Act of 1883 above named, and chapter 312 of the laws of 1885, are further illustrations of the manifest intention of the legislature to place all railroad crossings under the supervision of the railroad commissioners. The former prohibited the laying out of any way across land of a railroad company used for station purposes except upon the adjudication of the railroad commissioners that common convenience and necessity require it; and the latter authorized railroad commissioners to determine the manner and conditions of locating railroads across highways and town ways. We come now to the latest expression of legislative will upon this subject, found in chapter 282 of the laws of 1889. 'Section 1 of this act, amends section 27 of chapter 18, B. S., so as to read as follows :" Town ways and high ways, may be laid out across, over, or under any railroad track . . . except that before such way — 253 — shall be constructed, the railroad commissioners, oil application of the municipal officers of the city or town wherein such way is located, or of the parties owning or operating the railroad, shall . . . determine whether the way shall be permitted to cross such track at grade or not, and the manner and condition of crossing the same, and the expense of building and maintaining so much thereof as is within the limits of such railroad shall be borne by such railroad company, or by the city or town in which such way is located, or shall be apportioned between such company and city or town, as may be determined by said railroad commissioners.” . . . Section 2 of the act prohibits the crossing of a public way by a railroad unless authorized by the railroad commissioners; and section 3 gives these officers jurisdiction over the change of grade, or of the course of public ways to facilitate the crossing of a railroad, or to permit a railroad to pass at the side of the same. This chapter is only a revision of prior enactments with a modification of the authority of the railroad commissioners in regard to the assessment of the expense. It contains no suggestion of a purpose to deviate from the uniform tendency'- of previous legislation to place all intersections of railroads and public ways under the control of the railroad commissioners. On the contrary, their authority over all such crossings is here reaffirmed and enlarged. In its literal terms the statute confers jurisdiction over all such crossings wherever situated. Unincorporated places are not expressly excepted from its operation ; and no reason has been or can be assigned why the railroad commissioners should not have control of such crossings in unincorporated places as well as in cities and towns. But it is suggested that unincorporated places must be held to be excepted by implication because in case of cities and towns, there is express authority for the municipal officers to make the application and for the railroad commissioners to apportion the expense between the railroad company and the city or town; while no provision is made for such application by the county commissioners, who have analogous powers and duties relative to ways in unincorporated places, and no authority expressly — 254 — given to the railroad commissioners to apportion the expense between the railroad on the one hand and the county, or the county and land owners on the other. If it were quite certain that the legislature intended no distinction between incorporated and unincorporated places with respect to the right of application and the payment of the expense and that the failure to make express provision therefor in the case of the latter was purely accidental; and it should further appear that the leading purpose of the legislature would be otherwise defeated, there would be much force in the argument that such omission ought to be supplied by judicial construction, — on the authority of numerous cases holding that the "meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeded from the end in view or the purpose which was designed.” U. S. v. Freeman, 3 How. 55; Murray v. Baker, 3 Wheat. 541; Gray v. Co. Com. 83 Maine, 436 ; Endlich on Int. of Statutes, § 108. But as there may be a doubt whether the legislature did not intend to make a distinction in the particulars mentioned, and as the general purpose of the legislature in this case may be otherwise attained, such a liberal construction of the statute might be deemed an assumption of legislative functions. To place all railroad crossings, within thq limits of the state, under the control of the railroad commissioners has manifestly been the paramount object of the legislation on this subject since the enactment of 1878. The several provisions in regard to the right of application and the apportionment of the expense, enacted in different years, are of a subordinate character and of secondary importance. They are not all conditions precedent to the jurisdiction of the railroad commissioners in unincorporated places. The fact that all the provisions of the statute 'respecting the right of application and the adjustment of the expense in the case of cities and towns, are not also applicable to unincorporated places cannot take away the jurisdiction of the railroad commissioners over the latter while there is an express provision applicable to all crossings, authorizing an application — 255 — by the railroad company and also placing upon the company the burden of the expense. In the case of cities or towns, either the municipal officers or the railroad company may invoke the jurisdiction of the railroad commissioners, and thereupon the expense of building the way within the limits of the railroad, may all be imposed on the railroad company, or be apportioned between the railroad company and the town as the commissioners may determine. But with respect to ways in unincorporated places where there are no municipal officers, the application can only be made by the parties owning or operating the railroad ; and inasmuch as there is no provision for the payment or apportionment of the expense applicable to such a case, except that which places this burden on the railroad company, " the expense of building and maintaining so much thereof as is within the limits of such railroad shall be borne by such railroad company.” And we have seen that prior to 1885, such ivas the law relative to all grade crossings under the respective provisions of the acts of 1878 and 1883 above mentioned. In this case the application appears to have been duly made by the Canadian Pacific Railway Company, and the railroad commissioners should have taken jurisdiction of the subject matter by virtue of chap. 18, sect. 27, R. S., as amended by the acts of 1885 and 1889 above specified, and after due notice should have heard and determined the questions presented. Exceptions sustained.