Inhabitants of Lancaster v. County Commissioners

Colt, J. The county commissioners are required by St. 1872, c. 262, upon the application of the selectmen of any town, or the mayor and aldermen of any city, or the directors of any railroad corporation, to prescribe the manner and limits within which the “ approaches to or method of ” any railroad crossing shall be altered so as to secure the safety and convenience of the public. In the case before us, the county commissioners, upon an application by the selectmen of Lancaster under the statute, after a full hearing decided that the public safety and convenience required that the location of the highway at the crossing in question should be changed so as to cross the railroad at a point fifty feet distant from the existing crossing by a new way and railroad bridge constructed wholly outside of the present location, which should take the place of the existing bridge at the present location of the highway. And as all the evidence in support of the application was confined to the change of location above stated, [102] they thereupon ordered the petition to be dismissed, assigning as a reason that in their opinion the changes found necessary do not come within the provisions of the St. of 1872. The only question raised by this petition for a mandamus is whether the construction adopted by the commissioners is the true construction of the act. It is insisted by the petitioners that the Legislature intended to provide for a class of cases not before included in any of the provisions of the statutes ; and that unless authority to make alterations outside the located limits of the highway is given, then nothing is added to the previous legislation on the subject. In the absence of any express power given, authority is claimed to be conferred by necessary implication. There would be weight in the consideration if, as claimed, the act were otherwise without meaning. Under the provisions of Gen. Sts. c. 63, §§ 53, 54, which were expressly repealed by the St. of 1872, the county commissioners, on the application of the mayor and aldermen of any city or the selectmen of any town, might order a highway to be raised or lowered, so as to pass over or under the railroad, at the sole expense of the railroad corporation. If the commissioners refused so to order, the cost of the application must be paid by the petitioners. There was no existing provision by which the expense of any proposed alteration could be equitably apportioned between the railroad corporation and the town or county, or assigned to either party as justice might require. Nor was there any law by which the directors of the railroad corporation could initiate these proceedings, if the municipal authorities declined or neglected so to do. These features appear for the first time "in the St. of 1872, and are important changes in the law. It gives to railroad directors the power to require the action of the county commissioners on a question of vital importance to the safety of that part of the public who travel by railway, and by the provision for placing the expense of the alteration in the road upon the party or parties by whom it should in justice be borne, it introduces an element which must have a direct bearing upon the question of public convenience and necessity; and this must al [103] ways be considered with reference to the expense of the proposed alteration and the party who is to bear it. The construction given to the act by the county commissioners does not take away its meaning or render its provisions inconsistent. The alteration which they have the power to order must be made within the limits of an existing highway crossing, and must be confined to the “ approaches to or method of such crossing.” It cannot be extended by implication to the construction of a bridge at a crossing established on a different location, with the laying out of a new way to conform to it, and the discontinuance of the old one. Petition dismissed.