Attorney General v. Eastern Railroad

| Mass. | Mar 4, 1884

Morton, C. J.

This is an information brought under the Pub. Sts. c. 112, § 156, which provides that “a railroad corporation which has established and maintained throughout the year for five consecutive years a passenger station at a point upon its road shall not abandon such station; ” and “ in case of a violar tian of the provisions of this section, the Attorney General, at the relation of ten legal voters of the city or town in which said station is located, shall proceed in equity by information to enjoin the corporation from further violation thereof.” The next following section provides that “a railroad corporation may relocate passenger stations and freight depots, with the approval in writing of the board and of the city council of the city or the selectmen of the town in which such stations or depots are situated.” By “ the board ” is meant the board of railroad commissioners, as appears by the Pub. Sts. c. 112, § 1. See also St. 1874, c. 372, § 117, of which this section is a reenactment.

The policy of the law is to prohibit railroad corporations from abandoning stations and discontinuing the accommodations provided for the people, when the station has existed for five years, without the sanction of the Legislature, but to permit them to make minor changes in the location of stations, upon obtaining the sanction of the board of railroad commissioners and of the city council or selectmen. No general rule of law, applicable to all cases, can be laid down, as to what change of a station will constitute an abandonment or a relocation. Every relocation involves in one sense an abandonment of the old station, and must, almost of necessity, be attended with inconvenience to some persons. It was the intention of the Legislature to leave to the decision of the railroad commissioners and of the city council or selectmen, the question whether a relocation of a station proposed by a railroad corporation should be permitted. We need not decide whether a case might not arise in which this court could revise the proceedings of these boards, and hold that a change made by their permission as a relocation was in fact an abandonment of the station. The statute at least gives to them a large discretion to determine whether a proposed change is a relocation or an abandonment; and, upon the facts of the case before us, they were clearly justified in treating the change of the station as a relocation within the statute.

The purpose and effect of the change was not to discontinue a stopping-place in the town of Everett, but merely to change the location of the station buildings to a place near by, in the same town and neighborhood, with the design of better accommodating the same community. Whether such a relocation was desirable, was a matter left to the judgment of the railroad commissioners and of the selectmen. The evidence offered by the relators, as to the inconvenience of the change to them and others, was proper for the consideration of these boards, but was not admissible to control their decision. If these boards have properly signified their approval of the relocation, we cannot revise their decision.

The relators contend that the relocation in this case was invalid, because the board of railroad commissioners and the selectmen have not given their “approval in writing,” within the provisions of the statute. The purpose of the statute was to prevent the mischiefs which might arise if the question of the legality of a relocation was made to depend upon uncertain oral testimony to show the sanction of these two boards. It requires, therefore, that their approval shall be in writing, but it does not prescribe that it shall be by a writing signed by them. The board of railroad commissioners is a board of public officers required to keep records and having a sworn clerk. The most appropriate way of expressing their approval of a relocation is by a vote passed and entered upon their records. A board of selectmen is not required by express provisions of statute to keep records, and its clerk, if it appoints one, is not a certifying officer. Commonwealth v. McGarry, 135 Mass. 553" court="Mass." date_filed="1883-10-30" href="https://app.midpage.ai/document/commonwealth-v-mcgarry-6421069?utm_source=webapp" opinion_id="6421069">135 Mass. 553. But it is a board which may act by vote, and a majority may bind the whole. It is usual and proper for selectmen to keep records or minutes of their votes and proceedings.

In the case at bar, the selectmen of Everett passed a vote in substance approving the relocation as approved by the board of railroad commissioners. They caused it to be recorded upon their book of records. Though entered by the clerk, it was their act, and the record of the vote was their approval in writing within the fair meaning of the statute.

The relators object to the vote of the board of railroad commissioners, because it states that the relocation was “proposed by the selectmen of Everett.” But it is immaterial who proposes the relocation, and such recital cannot affect the substance of the approval. They also object to the vote of the selectmen, because, instead of approving the relocation by the railroad, it relocates the station. This is merely an error of form. In substance, the vote is an approval of a relocation to be made by the railroad.

Upon the whole case, we are of opinion that no abandonment of the old station is shown. The railroad corporation has relocated the station, having first obtained the approval in writing of the two boards, as required by the statute; and its proceedings were legal and valid. Information dismissed.