New York, New Haven & Hartford Railroad v. Bridgeport Traction Co.

Baldwin, J. The plaintiff’s complaint is in the nature of a pure injunction bill. It avers that it sends about two hundred regular trains of cars daily, some of which carry the mails of the United States, and the rest passengers and freight, across Fairfield avenue in the city of Bridgeport, at grade; that the defendant threatens to obstruct the plaintiff’s right of way by forcibly laying tracks for an electric railway over said crossing and upon the plaintiff’s tracks; and that if such new tracks are so laid and used, it will seriously impair the plaintiff’s power to fulfill its chartered purposes, disarrange its train service, put it to great additional expense in the operation of its road, and greatly endanger the lives of the passengers and employees on all trains crossing such avenue. The defendant’s answer admits the character and extent of the plaintiff’s business, as alleged, but sets up a grant by the last General Assembly of express authority to construct the crossing in question, at grade. It appears by an agreed statement of facts (made subject to the opinion of the court as to their relevancy) that Fair-field avenue was a public highway long before the plaintiff’s railroad was constructed, and that the proposed crossing by the defendant’s railway “ impairs the property of the plain — 423 — tiff, interferes with the accustomed and necessary operation of its road, and endangers the lives of its passengers and employees. But the defendant does not intend to injure the property of the plaintiff, or interfere with the accustomed and necessary operation of its road, or endanger the lives of its passengers, and will not, except such as naturally follows from the location and operation of its trolley road across the tracks of the plaintiff at grade.” These facts are relevant and material to the issue. They show that the proposed crossing, if constructed, will interfere with the necessary operation of the plaintiffs road, and endanger the lives of all whom it transports across Fairfield avenue in the two hundred trains which daily pass there. It would be difficult to make out a stronger ease for the interposition of a court of equity, if it has the power to interpose. Only by an injunction can the defendant be prevented from setting up across the tracks of a steam railroad iu constant use, an obstruction of: a continuing character, which would daily put in peril hundreds or thousands of human lives. It is argued that the plaintiff’s claim is in substance simply one for an injunction against threatened trespasses, or repeated obstructions of a right of way, and that it is not claimed that the defendant is not pecuniarily responsible for any damage it may do, nor that the plaintiff will be exposed to irreparable injury. But the plaintiff holds its right of way charged with the performance of a public trust for its continuous use for public accommodation. Gates v. Boston New York Air Line R. R. Co., 53 Conn., 333, 341, 343. Its railroad is a great avenue of communication between one part of the State and another, and between this and other States. Any impediment to its safe and proper use is a matter of public concern, not to be measured by money, or dealt with on the footing of a claim for damages. If erected without authority from the State, it may be that the State’s attorney might properly sue for an injunction; but the same remedy would be open to the plaintiff, for it suffers a special injury, and is charged by the State with a — 424 — special duty of maintaining its road at this crossing in uninterrupted use under safe conditions. Borough of Stamford v. Stamford Horse R. R. Co., 56 Conn., 381, 395; Frink v. Lawrence, 20 Conn., 120. As the plaintiff has stated a case sufficient to support its action, we are brought to the consideration of the merits of the defense founded on a legislative grant. In June, 1893, the East End Railway Company owned and operated a horse railroad in Bridgeport and Stratford, under a charter granted many years before, which railroad crossed the tracks of the plaintiff’s railroad at grade, upon a highway known as Seaview avenue. By an amendment to this charter, approved June 28th, 1893, it was authorized to extend its lines in each town by laying tracks through certain designated streets, “ and also from Stratford avenue on and along Pembroke street, across the tracks of the New York, New Haven and Hartford Railroad Company at grade, until said tracks are elevated, to Old Mill Green; subject to such regulations and restrictions as to said railroad crossing as the board of railroad commissioners may at any time order upon the application of either of said companies ; and from the lower bridge westerly, over and under the tracks of said railroad to the junction of Fairfield avenue and Water street; provided, however, that when said railway company shall abandon its present crossing with its tracks at grade with the New York, New Haven and Hartford Railroad Company at Seaview avenue, in the city of Bridgeport, it may cross the tracks of said steam railroad at grade at or near the junction of Fair-field avenue and Stratford avenue, at the southerly end of the railroad station of said steam railroad in the city of Bridgeport; subject, however, to such regulations and restrictions as the railroad commissioners may at any time order upon the application of either of said companies; and from the junction of Fairfield avenue and Water street southerly along Water street, westerly to Main street; * * * also from the northerly terminus of the line of said horse railway on East Main street across the tracks of the New York, New Haven and Hartford Railroad Company at grade, until said — 425 — tracks are elevated, to the north side of East Washington avenue ; subject, however, to such regulations and restrictions as the railroad commissioners may at any time order, upon the application of either of said companies.” Special Acts of 1898, pp. 878, 879. This amendment also empowered the company to equip and operate its road with electric power, and to consolidate and make common stock with any other street railway company having lines in Bridgeport, or to transfer to it its property and franchises. A horse railroad had been in operation in Bridgeport for many years, owned by the Bridgeport Horse Railroad Company. By an amendment to its charter, approved June 28th, this company was authorized to consolidate with any other street railway company; to equip its lines with electric power; and to extend them through various streets, among which were Congress street “ across the railroad tracks of the New York, New Haven and Hartford Railroad Company at grade, until said grade crossing is abolished by the steam railroad company; * * * subject to such regulations and restrictions in the matter of crossing the tracks of said steam railroad at grade as the railroad commissioners may at any time make upon the application of either of said companies; ” and also North avenue, Broad street, Lafayette street, South avenue, and “Fairfield avenue in the western section of said city,” each of which five streets was crossed by the plaintiff’s steam railroad at grade, and in respect to each of which, the company was empowered to construct a grade crossing over such steam railroad, in the same words used regarding the Congress street crossing, and subject to the same restrictions. On the same day, the Bridgeport Railway Company was chartered, with power to construct and operate an electric railway through certain streets in Bridgeport; to cross the tracks of any steam railroad, at grade, under such regulations and restrictions as the railroad commissioners should establish for the safety of the public; to acquire all the rights and franchises of the East End Railway Company, and of the Bridgeport Horse Railroad Company; and to become consolidated with them by the name of the Bridgeport Traction — 426 — Company. The concluding section of this charter ran thus: “ Except as otherwise herein expressly provided, this charter shall be subject in all its parts to the general laws relating to street railways and street railway companies.” Special Acts of 1893, § 19, p. 877. The amendment to the charter of the Bridgeport Horse Railroad Company also contained substantially the same provision. The consolidation and transfer of franchises thus authorized was duly made prior to August 16th, 1893. By a Public Act, which took effect on June 1st, 1893, (Public Acts of 1893, p. 307,) it was enacted that no street railway company already existing or thereafter incorporated, should lay new tracks in any city, until its plan of construction and operation had been approved by the mayor and court of common council. Soon after the consolidation, the defendant, as owner of the rights and franchises of each of the three companies so consolidated, presented its' plan of construction and operation (which involved the abandonment of the Seaview avenue grade crossing, and the laying of a double track on Fairfield avenue, to cross the plaintiff’s railroad at grade by means of electric power supplied to a trolley from overhead wires) to the mayor and court of common council of Bridgeport, and it was duly approved. On June 14th, 1893, a Public Act was passed (Public Acts of 1893, p. 361, Chap. CCVIII.) amending Chap. CLXVIII. of the Public Acts of 1889, so as to read as follows: “ No electric, cable, or horse railroad shall hereafter be constructed across the tracks of a steam railroad at grade, except upon application to and approval by the railroad commissioners, nor shall any steam railroad cross any such electric, cable, or horse railroad at grade, except upon like application and approval.” By another Act, approved June 30th, it was enacted that all the Public Acts of the session, unless otherwise provided, should take effect thirty days from the rising of the General Assembly. The Assembly rose on June 30th. On August 16th, the defendant, after having abandoned the grade crossing at Seaview avenue, applied to the railroad commissioners for permission to construct the tracks of its — 427 — “ horse railroad ” at grade across the plaintiff’s railroad on Fairfield avenue, under such regulations and restrictions as the commissioners might approve. The application was after-wards amended by adding a request that they would establish, pursuant to the charter of the Bridgeport Railway Co., such regulations relative to such crossing of the two railroads at grade, as they should see fit for the safety and protection of the public. The commissioners decided that the General Assembly had given the defendant the right to cross, and that they had no jurisdiction to approve or disapprove the proposed crossing; but proceeded to establish certain regulations as to the manner of its construction and operation. The main contention of the plaintiff is that the Public Act-of June 14th, which took effect July 80th, repealed or modified those parts of the special grants, made on June 28th, (when the Private Acts took effect under the provisions of the General Statutes), under which the defendant claims an absolute right to construct the crossing in question. The doctrine that a later statute repeals by implication all provisions of former ones which are inconsistent with it, rests on the ground that the last expression of the legislative will ought to control. It assumes that there have been successive and different expressions of such will, in relation to the same subject; and the latest of these governs, precisely as the last word of a master governs his servants, however much it may vary from his previous directions. Such is presumed to be his intention; and the intent of a statute is determined by the same rule and the same reason. The General Assembly, on June 14th, provided that no street railway should thereafter be constructed across a steam railroad at grade, except upon application to and approval by the railroad commissioners. By the general laws then existing (Public Acts of 1889, Chap. XXIX) this Act would have taken effect on the first day of July following the rising of the Assembly; but on June 30th, the time when it went into operation was postponed to July 30th. The Act of June 14th was designed, either to change the general laws as to the crossing of steam railroads by street railways, or to — 428 — make clear their meaning. In either case it was intended to remove impediments to the construction of such crossings. It declared it to be the general policy of the State that such crossings might be made with the approval of the railroad commissioners, and not otherwise. On June 28th, the Assembly granted permission for the construction of certain crossings of this kind in a particular city. These grants must have been based on petitions which sought permission to construct street railways on the streets in question, and were brought on due notice to the public and all parties adversely interested. General Statutes, §§ 388, 392, 393. The attention of the legislature was specially directed to the railroad problem in Bridgeport, and it decided to give the defendant and its predecessors in title power, after abandoning the Seaview avenue crossing, to lay tracks across those of the plaintiff on Fairfield avenue, at grade, upon such plan of construction and operation as the city authorities should approve, subject only to such regulations and restrictions as the railroad commissioners might order, on the application of either company. There can be no question that the defendant could have proceeded to make this grade crossing, after the fulfillment of the three preliminaries above mentioned, at any time between June 28th and July 30th, notwithstanding the passage of the Public Act of June 14th. Powers v. Shepard, 48 N. Y., 540, 545. To say that that Act, on July 30th, imposed the new restriction which is claimed, upon the exercise of the defendant’s franchises, is virtually to make it nullify the special grants obtained after its enactment, so far as they relate to grade crossings of steam railroads. On July 30th, the defendant, had its charter contained no provision on the subject, other than the permission to extend its lines through Fairfield avenue, could have constructed the crossing in question, under the general law, upon obtaining the approval of a crossing at that place by the railroad commissioners, and of the method of constructing and operating it, by the mayor and court of common council. By the general law (Public Acts of 1893, p. 308, — 429 — § 3), the city authorities have “exclusive direction over the placing or locating of any tracks, wires, conductors, fixtures,” or structures by any electric railway company' in the highway's of the city, “ including the power of designating the material, quality, and finish thereof,” and “ may make all orders necessary' to the exercise of such power of direction and control.” If, then, all these general laws affect the defendant, and it is also bound by the provisions of its charter, its construction of the crossing in question must, in any case, be subject to the regulations of the city' and also of the railroad commissioners, as to methods of construction and operation. But other companies, laying tracks without any' special privileges as to the mode of construction, across a steam railroad at grade, would have nothing to do with the railroad commissioners, except to get their approval of the crossing; the regulation of the mode of constructing and using it being left to be determined by the municipal authorities exclusively. Unless, then, the defendant is exempted by its charter from recourse to the railroad commissioners for the approval of this crossing, it is in a worse condition than if its charter had been silent on the subject; for as to modes of construction it is subject to two masters, instead of one. “A special and local statute, providing for a particular case, or class of cases, is not partially repealed or amended, as to some of its provisions, by a statute general in its terms, provisions, and application, unless the intention of the legislature to repeal or alter the particular law is manifest; although the terms of the General Act would, taken strictly', and but for the special law, include the ease or cases provided for by it.” Matter of Commissioners of Central Park, 50 N. Y., 493, 497. Where a special charter is followed by general legislation on the same subject, which does not in terms, or by necessary' construction, repeal the particular grant, “the two are to be deemed to stand together: one as the general law of the land, the other as the law of the particular case.” State v. Stoll, 17 Wall., 425, 436. The defendant’s charter expressly contemplates and regu — 430 — lates the effect of general legislation inconsistent with its provisions, by the declaration with which it concludes, that it is to be subject to the general laws relating to street railways, “except as otherwise herein expressly provided.” The “ general laws ” intended must have been both t-hóse then in force and those which might come into force thereafter. The Act of June 14th was one of the latter class. It required electric railway companies generally to obtain the approval of the railroad commissioners before constructing a grade crossing upon a steam railroad. But, as respects the grade crossing at Fairfield avenue, the charter of the defendant had expressly provided otherwise, for it had given explicit and full permission for the construction of this crossing, whenever that at Seaview avenue should be abandoned. The general police power of the State resides in the General Assembly. It can forbid grade crossings of highways by railroads or of one railroad by another, at any particular place. Woodruff v. Catlin, 54 Conn., 277, 295. It can, by the same authority, permit them at anjr particular place, conditionally or unconditionally. By an amendment to the charter of the State Street Horse Railroad Company, approved June 23d, that company was authorized (Special Acts of 1893, p. 846) to equip its lines with electric power, and to extend them through certain streets in Fair Haven, “ or said company at its option may lay its tracks and operate its cars across the tracks of the Shore Line Railroad on Ferry street until said tracks of the Shore Line Railroad are removed; provided, that during said time this -company place a watchman at said railroad crossing at its own expense; ” and it was declared that the Act should be subject in all its parts to the general laws relating to street railways “except as otherwise expressly provided herein.” In this instance also, therefore, the legislature, in regard to a designated crossing, exercised its own judgment as to the expediency of allowing its construction at grade, and the mode of regulating its use, when constructed, so as to secure public safety; thus expressly pro — 431 — viding for a course of proceeding, as to a particular locality, differing from that prescribed by the general laws. The plaintiff contends that the number of grade crossings of steam railroads, apparently authorized by the various charters and amendments of charters to which reference has been made, is so great • as to raise a necessary presumption that the General Assembly must have intended them to be subject to the approval of the railroad commissioners, under the general law, previously enacted, and subsequently taking effect. It is true that grade crossings of highways by steam railroads have repeatedly been pronounced by this court to be dangerous to human life, and that the general policy of the legislature for a considerable period of years has been to secure their abolition as speedily as it can reasonably be effected. Dyson v. New York and New England R. R. Co., 57 Conn., 21; New York and New England Railroad Company's Appeal, 62 Conn., 527, 540; 151 U. S., 555. But the special legislation, now under consideration, does not increase the number of such crossings. It increases, no doubt, the danger of their use; but if, notwithstanding this, the General Assembly has seen fit to make the grants relied on, they must be construed like every other statute, according to the intention which they express, rather than that which might perhaps have been anticipated, in view of the course of previous legislation. The frequent references, indeed, to the temporary character of most of the proposed crossings, as that they are to continue until the steam railroad tracks are removed, or elevated, may be some indication that the legislature thought the very construction of the electric railway tracks across those of the steam railroad might be an incentive to the speedier removal of the latter from the surface of the highway. The plaintiff urges that the State cannot bargain away its police power, and that any permission, however explicit and unqualified, to construct a dangerous crossing may be modified or repealed as soon as it is given. This is undoubtedly true. Pennsylvania Railroad Co. v. Braddock Electric Rail — 432 — way Co., 152 Pa. St., 116, (25 Atlantic Rep., 780). But the question before us is not whether there was a right of repeal, but whether such a right was exercised. We think that there is no sufficient ground for the contention that it was the intent of the legislature, by the Public Act of June 14th, to repeal the special and local grants not yet made, under which the defendant claims, and which were afterwards inserted in the Private Acts of June 28th. The case falls within the rule, Generalia speeialibus non derogant. It is further insisted that these special grants, if otherwise effectual, give the defendant no right to construct the crossing without first making compensation for the direct damage it will do to the plaintiff’s property. The injunction was asked to prevent a threatened obstruction of the plaintiff’s “ right of way.” It is not alleged or found that it owns the fee of the highway. It has only a right to cross it at grade. The defendant’s tracks are laid upon the highway by the authority of the State, and as a mode of rendering it more serviceable as a highway for public travel. We are not called upon to consider whether electric car tracks impose any additional burden upon land occupied for a highway, for which the owner of such land can claim compensation. The plaintiff is not in a position to raise that question. It claims that the proposed crossing at Fairfield avenue will affect the safe and beneficial use of its right of wray, at that point, and thereby impair the general value of its franchises and property. But it holds these subject to the police power of the State, under which the use of highways for all purposes of public travel is fully within the control of the legislature. Elliott v. Fair Haven & Westville Railroad Co., 32 Conn, 579, 582. The same authority which can make it lawful for electric railways to cross, at grade, any and every highway intersecting the street upon which their tracks are laid, can make it lawful for them to cross, at grade, any and every steam railroad intersecting that street. To raise or depress the street, or the structure bearing the electric tracks, so as to carry it above or beneath the steam railroad, might, in a particular — 433 — case, cause more inconvenience or even danger to the traveling public than it would avoid. The failure of a brake upon an electric car to act would naturally cause more peril to the passengers, and to those traveling on the street, if the car were, at the time, on an up or down grade. The difficulty of hauling heavy loads increases with every considerable ascent or descent in the highway. To divert the electric tracks from the street, in order to effect a crossing of a steam railroad elsewhere, necessarily leaves part of such street unsupplied with the facilities for quick communication which it might otherwise enjoy. To stop the electric cars on each side of the steam railroad, for the transfer of their passengers on foot from one car to another, involves them in personal inconvenience and delay, and without absolutely freeing them from the danger of being struck by a passing train. . The approval given in behalf of the State to the location of the plaintiff’s railroad across Fairfield avenue, made it lawful to construct and use the crossing at grade; but it conferred no greater power to control the use of the highway by others, than any individual traveler possesses. The company could not use the highway without legislative authority, but its rights of passage are not superior in kind to those of the individual, who needs no such authority, or to those of any other corporation which the State may authorize to use it for purposes of travel. The legislature has deemed it proper to allow the construction of electric railways in certain streets of the city of Bridgeport. It was bound to regard the safety and convenience of those who were to ride upon them, as well as the safety and convenience of those who were to ride over the steam railroads already laid upon those streets. In full view of the danger attending a grade crossing of the plaintiff’s by the defendant’s road on Fairfield avenue, it has deemed it for the public interest to permit its construction; and it was no more bound to provide for compensation to the plaintiff, for the injury it may suffer, than to provide for it in favor of any individual who may have occasion to cross the defendant’s tracks, at the hazard of a possible collision with its cars.: — 434 — Bridgeport v. N. Y. & N. H. R. R. Co., 36 Conn., 255, 267, 268; Massachusetts Central R. R. Co. v. Boston, Clinton and Fitchburg R. R. Co., 121 Mass., 124; Metropolitan Railroad Co. v. Highland Street Railway Co., 118 Mass., 290; New York and New England Railroad Company v. Waterbury, 60 Conn., 1. The plaintiff took the risk of suffering such an inconvenience or peril, when it elected to build its road over Fair-field avenue at grade. Such a crossing, in the center of a busy city, was a source of danger before the defendant’s charter was granted. Had it been constructed above grade, no use of the street by the defendant could have impaired the value or safety of the plaintiff’s road. The defendant’s charter does not create a danger so much as increase a danger; and as it is one incident to the lawful use of the highway, the plaintiff suffers nothing which it should not have contemplated as possible when it made its original location, and nothing to which such a location did not necessarily make it subject. The impairment' of its property, the interference with the accustomed and necessary operation of its road, and the danger to the lives of those whom it transports, present simply a case of damnum absque injuria. It was claimed by the defendant that the grant to the East End Railway Company of permission to construct this crossing at grade, when it should abandon the grade crossing then existing at Seaview avenue, the acceptance of this charter amendment, and the abandonment of that crossing, show an' executed contract between the State and the defendant, as the successor to the original company, the obligation of which could not be impaired by subsequent legislation. It is unnecessary to inquire whether such a claim would be tenable, since it does not appear that the Seaview avenue crossing was abandoned before the Act of June 14th came into effect. ■ There is error and the judgment of the Superior Court is reversed. • In this opinion Torrance and Fenn, Js., concurred; Andrews, C. J., and Hamersley, J., dissented.