New York & New England Railroad Company's Appeal from Railroad Commissioners

Carpenter, J. This is an appeal from the doings of the railroad commissioners in ordering the separation of the grade of the highwaj’- from the grade of the railway where the Norwich & Worcester Railroad crosses Cottage street in the town of Killingly. The application was made by the town. In such cases the statute authorizes the commissioners to require the town to pay not to exceed twenty-five per cent of the cost of separating the two grades. The commissioners ordered the separation, and apportioned one fourth of the expense to the town. The Superior Court, on appeal, affirmed the order. The appellants appealed to this court. The sole question in the case is, whether that portion of the act which limits the sum to be apportioned to the town to one fourth of the whole expense is unconstitutional. This, it is claimed, is not due process, inasmuch as it may prohibit the commissioners from requiring of the town its just and fair proportion of the whole expense. If the legislature should require the division of joint property between two persons equally interested in such a manner as to give one three fourths and the other but one fourth, it would be indefensible, being against natural right, and not due process of law. So too of a statute that should attempt to compel one of two joint obligors, jointly and equally interested, to assume the whole obligation as between themselves. But the case before us is not a case in which the legislature is attempting to apportion joint property or a joint contract obligation between the parties, but is a case of curing an evil where both parties, in some measure, but in different degrees, are responsible for the evil. If two jointly commit a tort, whereby another is injured, the law will compel either party to pay the whole damage ; and ordinarily no contribution is allowable. This case is somewhat analogous ; but we do not place our de [540] cisión on that ground. Two parties are engaged in legitimate business ; both supply public wants, and both, in some sense, discharge governmental duties. Both furnish ways to facilitate public travel. The way of each crosses that of the other at grade, and more or less danger unavoidably attends their use. As the use increases the danger increases. The policy of the state now is to abolish these grade crossings as rapidly as can be reasonably done. Legislation on this subject assumes that each party, in the discharge of its duty, is concerned in creating the danger, and that each may justly be required to contribute to the expense of its removal; or that either may be required to pay the whole; and if each contributes, that the proportion which each shall pay may be determined by the legislature in each ease as it arises, or by a general rule; by itself, or by a delegation of its power to the railroad commissioners. This exercise of power is justifiable on the ground that government itself, in the discharge of its governmental duties, undertakes to remove the danger; and does it in the same manner, and through the same instrumentalities, that it provides and maintains highways through and at the expense of towns and other corporations. So far as towns are concerned, it is a duty that has ever devolved upon them to keep the highways reasonably safe. They are compelled to act without compensation or pecuniary profit. Their sole motive is the public welfare. Railroad companies, in some sense, are but the agents of the government in affording to the public a more expeditious and vastly improved method of travel. As a compensation for their capital and labor invested they are permitted, as turnpike companies formerly were, to charge the public for the use of their ways. Unlike towns they do not act upon compulsion, but by choice. Their motive is private gain ; public benefit is incidental. Advantage to the public is a reason for granting the franchise ; but the enterprise itself is essentially a private one. They contribute largely to the danger, and the state may well require them to contribute largely to its removal. In Woodruff v. Catlin, 54 Conn., on page 295, this court [541] said:—“ The legislature having determined that the intersection of two railways with a highway in the city of Hartford at grade is a nuisance dangerous to life, in the absence of action on the part either of the city or of the railroads may compel them severally to become the owners of the right to lay out new highways and new railways over such land and in such manner as will separate the grade of the railways from that of the highways at intersection; may compel them to use the right for the accomplishment of the desired end ; may determine that the expense shall be paid by either corporation alone or in part by both; and may enforce obedience to its judgment. That the legislature of this state has the power to do all this for the specified purpose, and to do it through the instrumentality of a commission, it is now only necessary to state, not to argue.” Again :—“ Three corporations create the nuisance and are responsible to the public for its existence in as yet unmeasured and unknown proportions.” Here grade crossings are called, not in every sense perhaps, nuisances. It is not claimed that they are indictable, or that either party in the absence of negligence would be liable civilly; yet they are in the nature of nuisances, and are literally within Blackstone’s definition—“ Anything that worketh hurt, inconvenience, or damage.” We think that it is competent for the state to cause them to be abated, and that it may require any party responsible for their existence to pay any part or all of the expense. That being so, requiring the railroad company to pay three fourths of the expense, however just it might be to require the town to pay more than one fourth, is not a matter of which the railroad company can legally complain. The statute may operate harshly, as all statutes are liable to in certain cases, but it is not unconstitutional. There is no error in the judgment appealed from. In this opinion the other judges concurred.