83 Vt. 421 | Vt. | 1910
February 11, 1908, John L. Bacon, and
thirteen others, freeholders of the town of Hartford, addressed a petition to the Board of Eailroad Commissioners, now the Public Service Commission, Acts of 1908, No. 16, stating in general terms that they believed that the approaches to the union passenger station at the village of "White Eiver Junction in the town of Hartford were such as to endanger the public safety and requesting a hearing on the matter, and also requesting that the sufficiency of the station with respect to the convenience and accommodation of the public should be considered in the hearing. May 18, 1908, this petition was amended so that the complaint thereof was more specific. The amended petition set out that the station is insufficient, is improperly maintained and is not properly located for access from the Main street of the village; that it is not so arranged as to accommodate the patrons of the railroads centering there and the public having business there; that the only approach to the station is by a crossing at grade over many tracks, and that the tracks at such crossing are used by the railroad companies for the shunting and yarding of cars, so that by reason of an almost continual use of the tracks for such purposes the crossing of persons and teams is a very great source of inconvenience and danger to the patrons of the railroads and to the portion of the public who have business there, and that the use of coal in engines and the noise made by engines in hauling ears there are sources of great annoyance and inconvenience to people in the vicinity. The amended petition prays the board to make such order as is just, proper and right as to the maintenance of a station such as is safe, convenient and proper for the use of the patrons of the railroads and for the public and to make a like order as to a change in the manner of approach to the station; that the tracks there be removed, and the shunting and yarding of cars there be abolished, and that such other changes be made in the approach to the station as shall make the crossing there reasonable and safe. The amended petition prays generally for such an order as may be just and reasonable in the premises.
To"this petition the Boston & Maine Eailroad and the Central Vermont Eailway Company filed their several answers, and a hearing was had in the cause. A report was filed and an order was made in September, 1908. The order provided for the con
This second case is a petition brought to the board of commissioners by the Central Vermont Railway Company, June 30, 1908, and before the report and order in the Bacon case were filed or made. It sets out that the crossing over the tracks, already referred to, is a public highway, is highly dangerous, and
This Court held that the Boston & Maine Railroad is interested in the question of whether the crossing in question is a public highway, and pointed out in what way it is interested, and further called attention to the fact that it had not been heard on that question, since that question was not raised by the Bacon petition to which it answered, and since it was not a party to the proceedings brought by the Central Vermont in which that question was raised. We held that the joint petition of the railroad companies was well within the mandate which had been sent down in the Bacon ease, but made no order in respect to the Bacon case nor in respect to the joint petition, which was treated as a dependency of that case, since the Bacon ease was not before
The commissioners fail to find that the crossing in question is a highway crossing within the meaning of the statute and give at some length their reasons for their inability so to find. It is claimed, however, that there are facts reported which, as matter of law, determine such to be its character. Whether the State of Vermont and the town of Hartford can be made to contribute to the expense of eliminating this grade crossing depends upon whether it is a highway crossing within the meaning of the statute invoked, and the report of the commissioners in that regard, and the questions raised in respect thereto, will be considered at the threshold.
It appeared by the records in the office of the town clerk of the town of Hartford that, in 1863, the selectmen of the town caused to be made a record of the laying out and survey by them of a public highway lying between the Junction House, so-called, and the railroad station. Their survey of the highway began in the range of the northerly end of the Junction House and three rods from the northeast corner thereof. The survey proceeds: "Thence south 69 deg. east, 7 rods and 10 links to the track of the Central Vermont Railroad. Said survey being the northerly line of said highway three rods in width southerly from the said northerly line.” The Junction House referred to was after-wards burned, and was subsequently rebuilt in such a manner that the northeast corner of the second structure, now standing, is coincident with the northeast corner mentioned in the survey. At the time of the survey only four of the eight tracks now
The phrase “railroad track” often means the same as the word “roadway” as used in P. S. 4327. See Drouin v. Boston & Maine Railroad, 74 Vt. 343, 52 Atl. 957.
Since this is so, since nothing that can properly be called a monument was established by the survey, since such a mistake in
It is argued in behalf of the railroad companies that in 1863 the westerly line of the right of way of the predecessor of the Central Vermont was a line parallel with and forty-two feet westerly of the most westerly rail of the tracks of the Central as they then were, and a contrary finding by the commissioners was eliminated by them, upon consideration of a request made by the railroad companies. Measurements on plans drawn to a scale, and referred to by the commissioners in their report as accurate, indicate that the north line of the surveyed highway stopped at, or near, this westerly line of the right of way as it is claimed to have existed in 1863.
Under the provisions of an act passed in 1849, and in force in 1863 and thereafter until 1886, a highway could not be laid out across a railroad at grade. Act of 1849, No. 41, §26; C. V. R. Co. v. Royalton, 58 Vt. 234, 4 Atl. 868; Conn. & Pass. Rivers R. Co. v. St. Johnsbury, 59 Vt. 320, 10 Atl. 573.
This fact is referred to by the appellants in connection with the argument that the surveyed highway was laid out at grade to the very westerly rail itself of the tracks in existence in 1863. But the statute could not have contemplated that that could be done. If it could have been, then wherever there was but one track a highway might have been laid out on each side of it to the corresponding rail, and persons, animals and other objects, might be within a foot or less of one rail or the other, and so in a position to occasion such a disaster as the statute was aimed to prevent, and still be within the limits of a highway. Highways so constructed would, of course, invite trespasses upon the ground between the rails. The statute must be reasonably interpreted with reference to the evil which it was intended to remedy and the dangers and liabilities which it was intended to avert, and we
In the recorded survey referred to the highway is described as “laid out through lands claimed to be owned by Isaac B. Culver and by the Central Vermont Railroad Company and in part by Noah B. Safford,” and the record recites the award of one dollar to each of such claimed owners. It is, in substance, argued that this description, in connection with other facts, shows the true construction of the survey to be that it put the east end of the highway surveyed upon the forty-two foot strip of railroad land next west of the most westerly rail as the rails lay in 1863. The other facts just referred to are these: — In June, 1859, land bounded on one side by this forty-two foot strip was set off to Noah B. Safford on an execution against the Vermont Central Railroad Company. Within a year this land had been quit-claimed by Safford to one Appleton, by Appleton to one Tilden and by Tilden to Isaac B. Culver. In 1858, to go back a little, other land bounded on one side by this forty-two foot strip was set off to Noah B. Safford on an execution against the railroad company. It is claimed by the appellants that the westerly end of the surveyed highway was wholly on land to which either Culver or Safford held title by virtue of the levies and quit-claim deeds referred to, and that so the survey would not have mentioned the Central as claiming any interest in the land surveyed if the survey had not in fact extended easterly over the forty-two foot strip. The commissioners report that they are unable definitely to locate the land described in the executions referred to. But if the claim of the appellants as to the land set off on the executions is correct, their argument on this point is without force. Notwithstanding the proceedings on the executions, the railroad company might well be claiming an interest in the lands described therein, and to give the railroad company notice and treat it as a party to the proceedings was but common prudence on the part of the selectmen. The appellants claim that after the highway in question was laid out the railroad company repurchased what was set off on the executions and received deeds of the same. The commissioners are unable to find that the deeds referred 'to did, in fact, convey the land described in the two executions. But, if we assume that they did, the giving and the
It ought to be said that the commissioners find that at the present time all of the land between the station and Main street, including the park mentioned, is part of the right of way of the Central Vermont Bailway Company. And it ought further to be said, in view of the claims of the railroad company and of the evidence on which they are founded, that we do not understand this finding to mean that the company has not, in some of such land, a greater interest than a mere right of way. We understand that the railroad company claims' to own a portion, at least, of this land, in fee, and without going into details with respect to the nature of its claims and holdings, we deem it sufficient for the purposes of this case, and a sufficient protection to the railroad company against possible, or apparent, prejudice in respect to its rights of ownership to say, as we do, that we do not treat the finding of the commissioners as to the company’s "right of way” as a denial of any greater or further interest. To prevent misunderstanding the digression made in this paragraph has seemed called for.
Everything in the case indicates that the selectmen, in surveying the highway which they laid -out, labored under no misunderstanding and were the victims of no mistake, and the true and only construction to be put upon the survey is such that the land included in it did not extend to the westerly rail of the tracks as they were in 1863, and probably is not crossed by any of the rails now on the ground.
In connection with their claim that the highway surveyed in 1863 extended to the west rail of the fourth track, counting westward from the station, the appellants claim that the owners and operators of what is now the Central Vermont, of their own motion, extended the highway to the platform of the passenger station, that they constructed and maintained and kept in repair planking across their tracks and so dedicated to the public a highway which has been in constant use by the public for more than forty-five years, and that so there is a continuous highway, from Main street to the station, existing in part by the action of
The tenor of these cases is that the statutory proceedings, without the recorded certificate that the road is open for travel, do not impress upon the road laid out the character of an actual public highway, and that, without such record, the road does not become a public highway unless, and until, it is recognized by the town as such by some unequivocal act. It is argued that, in the absence of evidence of the record of this certificate, there is a presumption that such a certificate was recorded or filed for record, that it is to be presumed'that the selectmen performed their legal duty in this behalf. But the burden of showing that the crossing is a public highway was on the appellants under their petitions alleging that it was, and if they relied upon the record of the certificate in support of their contention it was for them to show it. The record, or a certified copy thereof, was the best evidence upon this point, and without evidence of the destruction or loss or inaccessibility or effiacement or mutilation of the record or of books in which it should have been made, secondary evidence could not be let in, and no presumption of regularity could operate, since the case is not one which has to do with records, the antiquity of which of itself suggests any difficulty in producing the best or primary evidence. The appellants could not resort to the record evidence of the laying out of the highway and stop with its production, and then say that, as to the cer
Where school district officers paid out money for repairs on a school-house, and there was no evidence that the district had authorized them so to do, it was held that there was a presumption of previous authorization on the part of the district. Brock v. Bruce, 59 Vt. 313, 10 Atl. 93.
Where at a sheriff’s sale property was sold at a farm house, to which the sale had been adjourned, and there was no evidence that the farm house was not a public place within the meaning of the law, it was presumed that it was, as such fact coexisting with the sale, was essential to the validity of the act of the sheriff in making the sale. Fairbanks v. Benjamin, 50 Vt. 99.
Where an officer advertised and sold property on an execution, and his return did not show that the property was advertised and sold in the town in which it was taken, as the law required, this attendant fact was presumed. Jewett v. Guyer, 38 Vt. 209.
Where the treasurer of a town made a payment upon a debt owed by the town, and there was no proof of authorization of the town, it was held that the approbation of the town was to be presumed. Sargeant v. Sunderland, 21 Vt. 284.
Where, in an action of debt on a jail bond, the plaintiff alleged a commitment to the jail in the city of Yergennes on an execution issuing from Addison County Court, it was held that,
Where selectmen made and had recorded a certificate of alteration in a highway necessary to the construction of a railroad, but required to be by agreement between the selectmen and the railroad company, a presumption of the prior agreement requisite to the regularity of the certificate was held to arise. Wead v. St. J. & L. C. R. Co., 64 Vt. 52, 24 Atl. 361. We have other cases which illustrate the general rule which here obtains.
As the rule is above stated there are cases which must be excepted from it, as cases of tax sales, where the regularity of antecedent proceedings must be shown, and cannot be presumed in aid of the regularity of the sale, Brush v. Watson, 81 Vt. 43, 69 Atl. 141, and the eases there cited. So too the general statement of the rule as made above is hardly broad enough to cover all eases. It hardly covers the well established presumption that a letter properly addressed, stamped and mailed reaches its destination in consequence of the regularity of the officials of the postoffice department in the discharge of their duties. Walworth v. Seaver, 30 Vt. 728, 73 Am. Dec. 332; Oaks v. Weller, 16 Vt. 63; Rosental v. Carbondale &c. Co., 140 U. S. 25, 35 L. Ed. 332, 11 Sup. Ct. 691.
But the rule cannot be so construed as to permit the presumption here claimed — so construed as to alter the rule that the existence and contents of a record must be proved by the record, unless something is shown which prevents or excuses the production of the record. Sherwin v. Bugbee, 17 Vt. 337; Brunswick v. McKean, 4 Me. 508; United States v. Ross, 92 U. S. 281, 23 L. Ed. 707.
As has been said, or intimated, a road laid out, may, without a certificate of its opening, become an actual public highway in consequence of acts of the town in reference thereto. The question of the performance, or non-performance, by the town of Hartford of acts having such efficiency was fully considered by the commissioners. They find that the highway described in the record of 1863 was never worked by the town of Hartford nor by any one under its authority; and the subordinate facts which they report fully sustain this finding. Stress is laid upon an item in the report of the treasurer of the town for 1874 which
But it is claimed that the crossing, or a part of it, became a public highway by dedication and acceptance and by long continued travel over it. This claim is more particularly made in connection with the claim that the town otherwise established a public highway from Main street for a part of the way to the station, and that the dedication was of the rest of the way. But independently of the former claim already ruled upon, the claim that the crossing, or any part of it, is a highway by dedication, acceptance and use, is to be considered.
As has already appeared the tracks of the Central Vermont are immediately in front of the station-building, treating the front as the side, westerly of which lies the Junction House, and, in general, the village. The commissioners find and report that no one can go by team or on foot from the village or the sur
And when it does this, the use of its right of way by persons having business on the leased premises is not a circumstance tending to show the dedication of a highway. That a railroad company may make a dedication of a highway across its right of way and tracks has been settled, in cases in which railroad companies have resisted claims similar to that which the appealing companies here assert. But neither the public welfare nor corporate rights require or permit that such acts on the part of a railroad company as have been shown in this case should be considered sufficient evidence to sustain a claim of dedication.
Williams v. New York &c. R. Co., 39 Conn. 509, was a case in which the claim was made that a railroad company had by dedication made a public highway of a space which connected with a public street in front of one of its stations, and the facts that appeared therein made the claim much more plausible than is the claim made here, but upon injunction proceedings brought
In Lake Erie &c. R. Co. v. Town of Boswell, 137 Ind. 336, 36 N. E. 1103, a railroad company was held to have made a dedication of a highway across its tracks, but, among other things, the company had, as required by statute, filed as a public record a map showing the street dedicated, had furnished to its officers and employees a map showing the street across its right of way, had suffered the town to make, and had cooperated with the town in making improvements upon the street, and had seen houses and churches built and shade trees planted in reliance upon the existence of a highway.
In Louisville &c. R. Co. v. Sonne, 21 Ky. Law Rep. 848, 53 S. W. 274, the railroad company had, among other things, maintained, at the claimed street for about forty years, warning boards required at highway crossings, and many houses had been erected in reliance upon the existence of the street. The court thought that the evidence in the case tended to show that the street was a public highway before the railroad company ever acquired its right of way, but held that, however that might be, the railway company could not be permitted to deny the existence of the street. The commissioners find that in this case neither warning boards were ever put up nor bells rung nor whistles sounded in accordance with the provisions of the statute applicable, if this crossing was in fact a highway.
In connection with the Connecticut ease, above referred to, negativing a dedication, reference is' made to Hast v. Piedmont &c. R. Co., 52 W. Va. 396, 44 S. E. 155, where the insufficiency of such facts as are here relied on to prove a dedication is clearly shown, and where numerous cases and various text books are cited in discussion of the question.
It appears from the commissioners’ report that some people live easterly of the station and between it and the Connecticut river, and the commissioners’ report shows that, at all times material to the claim of the appellants, persons so residing, including school children, have used the crossing in going to and from the village and that from 1863 till about 1882, when an iron bridge was built across the Connecticut River, people residing at Lebanon, across the river, used the crossing when they had occasion to walk to White River Junction or to walk back. But this
A town or other municipality cannot have forced upon it as highways whatever ways and paths individuals may open and lay out with a view to the enhancement of their private property, or for other reasons.
But it is suggested that, though the crossing may not be a legal public highway, it is a road in fact, and that its existence as such is all that is necessary to proceedings under P. S. Chap. 194; that the law invoked deals simply with the dangerous condition regardless of how that condition came to exist. The State, through the exercise of its police power, does deal with such dangerous condition, however it may be that it came to exist; but, in the elimination of this or a like dangerous crossing, the law does not provide for the charge of a part of the attending expense upon the State and a part upon the town unless the crossing is one of the public highways of the State which the town as an instrumentality of the State Government is bound to repair. The'subject of highways is fully covered by statutory provisions and we know no such thing as a highway which nobody is bound to repair. “What,” said Lord Mansfield in construing an Act of Parliament relating to roads, ‘ ‘ are they to continue them and leave them to be impassable.” Lofft, 465.
Towns are bound to keep in repair all highways within their respective territorial limits unless there is some special statutory
It is said in the brief of one of the appellants that a dedication must be accepted. But this is not the law of Vermont as the cases already cited abundantly show. Burdens cannot be imposed upon towns by any one to whom it occurs that it will be for his advantage to have a highway through or past 'his land. It is for the towns to determine what shall be highways therein, subject, of course, to the appeals from the action of the selectmen provided by statute.
The commissioners’ findings and refusals to find in respect to the claim that the crossing in question is a public highway were all warranted or compelled, and the fact that the crossing is not a public highway is established so far as the report of the commissioners and this decision and opinion can establish it.
And this is as it should be for as was said by Chief Judge Redfield: "Railroad stations should be approached, commonly, by private ways under the control and at the expense of such companies, as well for the convenience of the business of the companies, as the convenience of the public. ■* * * One might ask what would be the effect, if the passenger and freight depots at the most frequented points were in the public streets?” State v. Vermont Central R. Co., 27 Vt. 103, 109.
With the question of a highway crossing at rest we proceed to the consideration of the other questions before us.
The Public Service Commission finds that the passenger station at AVhite River Junction, and the express office and baggage house there, are situated on a diamond-shaped piece of land enclosed by many railroads in almost constant use. They aptly designate the station as "an island in a sea of traffic”; and that it is so is sufficiently shown by the blue print "No. 24, R. W. S.” which was introduced in evidence, found to be accurate, and made a part of the report. Four railroads, two of which are operated by the Boston & Maine, center there, and for a period of twenty years the railroad business there has continuously increased, and a continuance of its growth is anticipated by the commissioners. The dangerous character of the approach to the station was admitted by all parties to the hearing, and the ap
As a part of their order in this regard the commissioners direct the removal of the four westerly tracks of the Central Vermont between the station and Main street, and, to quote from the report, “an almost complete revision of the Central Vermont tracks” at this terminal point. But such an order cannot be made, as an incident to the construction of an underpass or subway, unless it is a necessary incident thereto, for the tracks of the company cannot otherwise be swept from their right of way and the company denied the beneficial use thereof.
The brief for the petitioners in the Bacon case puts the matter in the true light when it says, with reference to the provision of a safe and convenient approach to the station, “if it is necessary to accomplish this that either or both of the roads should change the location of a track or different tracks adjacent to such station, is it probable that it was intended by the legislature that the commission is powerless to order that done.”
The commissioners after discussing the plans which they had under consideration finally report that the public safety and convenience require the elimination of the four tracks and the reconstruction of the railroad yard in order to the carrying out of the plan for an underpass. But their previous discussion and findings indicate that they mean no more by this.finding than that in their judgment “the best way” to obviate the crossing by an underpass is to require this extensive tearing up and removal
Management and administration are inseparable from liabilities, risks and responsibilities which attend the exercise of the franchises under which the roads exist. To demand of railroad companies the surrender of the right to manage and administer their affairs would be to demand a surrender of the beneficial use of their property and franchises. Our statute in a large and effective sense gives to the commissioners the right of regulation and supervision of the management by railroad companies of the quasi-public business in which they are engaged; but regulation on the one part and management on the other work together in a salutary way to subserve the public welfare. Without proper regulation the interests of the public at large have been and will be lost sight of. With regulation, obtruding itself into the place of management, capital will recede from the channels of public service, and the industries most useful to the people at large will dwindle, for the incentives to the development, extension and skillful operation of those branches of business which can be said to be “affected with a public interest” will, in great measure, be removed. The phrase “affected with a public interest”; as applied to public service enterprises which are private in their ownership, seems to be a rather happy phrase, used, and apparently invented, by Sir Matthew Hale; and its felicity consists in the fact that it lays no undue emphasis either upon the private character or the public purposes of such enterprises.
The statute gives the Public Service Commission jurisdiction in all matters “respecting” railroad crossings, highway grade crossings, signs, signals, gates, flagmen, the location, sufficiency and maintenance of proper depots or stations, the construction
But it is unnecessary as a part of this opinion to enumerate the powers of the commission which are specially named. It is quite true, as is claimed in the brief for the petitioners in the B'aeon case, that the broadest jurisdiction over railroad companies which the board has is conferred by the paragraph “said board shall have jurisdiction, on due notice, to hear, determine, render judgment, and make orders and decrees in all matters provided for in the charter of any railroad corporation, or in the statutes of this State relating to railroads.” But this does not mean that the commission can do whatever a railway company can do, that the Legislature has undertaken to substitute the board of commissioners for the company’s board of directors, or to confer upon the former the proper functions of the latter. It means only that their power of regulation and supervision is broad enough to require of every railroad company the discharge of all its duties to the public, whether those duties are expressed in the charter of the company, or are implied from the nature of its business, or are imposed by some general law to the operation of which the corporation is subject. Since it was argued that the board can do with the plant of a railroad company whatever the company itself can do we deem it pertinent to quote a recent and timely utterance of Mr. Justice White, who speaking for the whole Bench of the Supreme Court of the United States says: “As the public power to regulate railways and the private right of ownership of such property co-exist and do not the one destroy the other, it has been settled that the right of ownership of railway property like other property finds its protection in constitutional guarantees.” Atlantic &c. R. Co. v. Commission, 206 U. S. 1, 20, 51 L. Ed. 933, 27 Sup. Ct. 585, 592.
We note that these guarantees extend to the use of private property as well as to its mere ownership and title.
In a very recent case the Supreme Court of the United States, in affirming a judgment of the circuit court refusing to enforce a certain order of the Interstate Commerce Commission,
Of the order in respect to the rearrangement and obliteration of tracks as a part of the plan for an underpass or subway it must be said, in view of all the circumstances, as was said of a certain order under consideration in State v. Speyer, 67 Vt. 502, 32 Atl. 476, 29 L. R. A. 573, 48 Am. St. Rep. 832, that “it reaches beyond the scope of necessary protection and prevention into the domain of restraint of lawful business and use of property.”
The commissioners report that when they made their first order for the elimination of the crossing, the order which included the construction of an underground baggage room and the installation of the elevator, they were led to believe that the cost of carrying out that order would be about $73,480.00. They now find that such cost would amount to $97,000.00. And they find that the plan upon which their first order proceeded is not the- best if the order now before us is upheld; but they find that if it is not upheld the plan upon which their former order proceeded is the best solution of the problem with respect to the crossing. But under our holding it will not be the result of this alternative finding that the case goes back for an order in accordance therewith as matter of course. For one thing, there has been no compliance by the commissioners with that part of the mandate of 27 October, 1908, requiring a report as to the advantages and disadvantages of the elevator system ordered and appealed from. For another thing, an underground baggage roqm, with an elevator to make it accessible, is not, prima facie, a necessary incident to the construction of a safe and convenient underpass, as the mandate referred to implies. Such an underground baggage room and elevator are strangers to our statutes relating to railroads, including the statute which relates to the powers of the commissioners, to the methods of conducting railroad business
With respect to the approaches to the station, a place where the railroad companies have invited the public to come and do business, the public has the right, in the circumstances, to a subway or subways reasonably safe and convenient, and whatever is necessarily incident thereto may properly be embraced in the order. To such an order the railroad companies must submit, and with its terms they must comply. But costly and novel experiments, not obviously necessary to the subway, they cannot be compelled to make by virtue of the authority of the commissioners to compel the construction of a subway. The opinion of the Supreme Court of the United States in Wilcox v. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 Sup. Ct. 192, contains suggestions calculated to reconcile conservatism with temperate progress and development within constitutional limits, the exercise of governmental authority with private rights, the non-impairment of contracts and liberty to contract with that order and security which rests upon the supremacy of the police power, and we refer to that case as well as to cases already cited as consistent only with the conclusion above announced.
The commissioners’ order relates in part to the remodeling of the station itself, and there is no suggestion in the argument for the appellants that the commissioners had not jurisdiction to order the changes which it did in the station proper, nor that their jurisdiction in that regard was not wisely exercised.
The platforms of the station are properly appurtenant thereto, and the commissioners find that an enlargement of the station platform “is very much needed for the convenience and safety of the public. ’ ’ In the brief for the appellants it is said, “as the railroad plan proposes an increase of platform space around the station, and the commission have found that additional space is required, clearly some additional platform space should be ordered in connection with the remodeling of the station. ’ ’ But the order of the commissioners provides for more platform space than the appellants concede to be required; and since this increased platform space involves some, though comparatively slight and inexpensive change of trackage, the railroad companies urge that such change cannot be ordered except
We observe that the charter of the Connecticut & Passumpsic Rivers Railroad gave it no power of lease, and that the lease to the Boston & Maine must have been by virtue of our general law. P. S. 4329; Pennsylvania R. Co. v. St. Louis &c. R. Co., 118 U. S. 290, 30 L. Ed. 83, 6 Sup. Ct. 1094.
Of the nature of the lease and the relation of the companies we know nothing except that the lease is for ninety-nine years from 1887, and we do not undertake here to discuss the question of whether or not there has been such a transfer that the Boston & Maine controls the property, subject in express terms to all the general laws of this State in force in 1887. Rochester Ry. Co. v. Rochester, 205 U. S. 236, 254, 51 L. Ed. 784, 27 Sup. Ct. 469, and cases cited. For the purposes of this ease we assume that the lessee stands in all respects in the place of the lessor.
We assume in respect to the Connecticut & Passumpsic Rivers Railroad Company that it exists and is operated by virtue of its original charter granted before the enactment of a general law and before the passage of No.45, §l,Laws of 1851 which reads: “Every act creating, continuing, altering or renewing any corporation or body politic which shall hereafter be passed by the general assembly may be altered, amended or repealed whenever the public good may require such alteration, amendment or repeal. ’ ’ The charter of this railroad company gives to it the power of locating its tracks and of making alterations, and it is claimed that no change of its trackage at White River Junction can be legally ordered by the commissioners. It is claimed that the order of any alteration, without the consent of the operating company, would be a violation of the contract clause of the Constitution of the United States, and also that it would be a taking of private property for public uses without compensation, without due process of law, and in defiance of the right of the company to the equal protection of the laws.
The Connecticut & Passumpsic Rivers Railroad Company was chartered in 1835 with power to construct a railroad according to its discretion from the southern boundary of the State to its
That the company owed a duty to the public in respect to the location of its lines was claimed by it and recognized by the Court in an early case. Conn. & Pass. Rivers R. Co. v. Baxter, 32 Vt. 805, 807, 816.
The report in the instant case shows that a condition inconsistent with the safety of the traveling public and with a reasonable regard for their comfort has grown up at White River Junction, where, as is the case at all important junctions, people and trucks are necessarily hurrying in various and opposite directions, and that additional platform space is necessary to relieve such situation, and it appears that some change of tracks is a necessary incident of providing platform space which shall be reasonably safe and free from serious discomfort, and so far as a movement of the rails adjacent to the station is such necessary incident, the commissioners have power to order the change. Such moving back from the station, of the railroad tracks, as safety requires is a legitimate exercise of the police power, is not a taking of property without compensation, does not constitute expropriation of property and impairs no contract obligation.
In Beard v. Conn. & Pass. Rivers R. Co., 48 Vt. 101, it was held to be beyond question that it was the duty of the company in question to do what was necessary at its depot premises to afford reasonable safety to a traveler. To the same effect are Sawyer v. Rutland & Burlington R. Co., 27 Vt. 370, and Hale
In 1859 the Conn. & Pass. Rivers R. Co., had judgment in trespass against one whose land had been taken for railroad purposes, and its contention and the judgment of the court were that its possession must be exclusive in order that it might conserve the public safety and discharge its obligations to the community. Conn. & Pass. Rivers R. Co. v. Holton, 32 Vt. 43, 47. To the same effect is Troy & Boston R. Co. v. Potter, 42 Vt. 265, 274, 1 Am. Rep. 325.
The rights and liabilities of railroad companies are ably and sensibly discussed by Chief Judge Pierpoint in an early case in this State. With respect to their liabilities he says, among other things: ‘ ‘ They are created for the sole purpose of erecting, putting in operation and carrying on a public work, and are authorized to take private property for that purpose, and for that reason. The great object for which they are created and invested with their extraordinary powers, is that that they shall act as carriers of persons and property upon their roads, when completed, and by accepting their charters, constructing and putting in operation their roads, they not only take upon themselves all the duties and liabilities incident to the character of common carriers, but they assume other important duties and liabilities. The public have granted charters for specified purposes, and by accepting them they have obligated themselves to carry out those purposes. They not only have the right to act as common carriers, but they are bound to act as such. The public have the right to insist that they shall continue so to act. They can not throw off this responsibility, and absolutely refuse to discharge their duties, except by an abandonment and surrender of their charters; they can not of their own motion, while acting under their charters and operating their road, divest themselves of their character of common carriers, and refuse to receive and carry passengers upon their roads, or refuse to allow them to come upon their premises at the proper place and time, for the purpose of taking passage. The public, for such purpose, have
All this being so, it is idle for a company to claim the charter right to subordinate the enjoyment by the public of its legitimate privileges to the maintenance of dangerous conditions, nuisances and mantraps.
' A railroad is not by such a charter as that in question absolved from the duty of reasonable care and prudence in the construction and maintenance of its road. Waterman v. Conn. Pass. Rivers R. Co., 30 Vt. 610, 615, 73 Am. Dec. 326; Hatch v. Vermont Central R. Co., 28 Vt. 142.
The right of the State, irrespective of charter provisions, so to regulate the operation of railroads as to conserve the safety of persons and property was affirmed in this State in Nelson v. Vermont & Canada R. Co., 26 Vt. 717, 62 Am. Dec. 614.
Thorpe v. Rutland & Burlington Ry. Co., 27 Vt. 140, 62 Am. Dec. 625, is a leading case. It was there claimed that a railroad company, chartered before a general railroad law was enacted, and not bound by its charter to erect and maintain fences and cattle guards, could not be compelled to do so. It was claimed that legislation compelling railroads to do these things modified and violated the charter contract. But the Court held, otherwise. It is there said that the police power of the State may subject persons and property in general to restraints and burdens such as are required for the protection “of the lives, limbs, health, comfort and quiet of all persons”; that as to its right to do this in respect to natural persons “no question ever was or upon acknowledged general principles ever can be made”; and that “it is certainly-calculated to excite surprise and alarm that the right to do the same in regard to railways should be made a serious question.” The case is soundly reasoned and richly illustrated.
By the general railroad law passed after the Connecticut & Passumpsie Rivers Railroad Company was incorporated it was 29
In Cooley’s Constitutional Limitations, 6th Edition, the substance of the Thorpe ease is given as a two page note, and in accordance therewith it is said in the text, with regard to the contract clause of the Constitution of the United State, that "it has been held without dissent that this clause does not so far remove from the State control the rights and properties which depend for their existence or enforcement upon contracts as to relieve them from the operation of such general regulations for the good government of the State and the protection of the rights of individuals as may be deemed important,” and it is added that ‘ ‘ all such regulation must be subject to change from time to time as the general well being of the community may require. ’ ’ With specific reference to private corporations in the exercise of their charter powers it is said in the same work and in the same connection that they are "subject to such new regulations as from
The Thorpe case is cited in Carty’s Admr. v. Winooski, 78 Vt. 104, 62 Atl. 45, 2 L. R. A. ( N. S.) 95, where it is said that the police power is “founded upon the duty of the State to protect the public safety, the public health and the public morals, ’ ’ from which unassailable proposition it follows that the State cannot by contract abrogate its powers and duties resting thereon. The right to exercise the police power cannot be sold or bartered or given away. It is an attribute of sovereignty, or rather it is sovereignty itself; and lest its true nature should be misunderstood it is emphatically indicated in Article 5, Chapter 1, of our State Constitution.
The character of the police power is well considered in State v. Theriault, 70 Vt. 617, 41 Atl. 1030, 43 L. R. A. 290, 67 Am. St. Rep. 677, in which the Thorpe case is cited as a landmark.
The Thorpe case is cited and the pith of it is quoted as law in Jacobson v. Massachusetts, 197 U. S. 11, 49 L. Ed. 643, 25 Sup. Ct. 358.
It is cited and more extensively quoted from in Railroad Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527.
So too it is cited with approval in Missouri &c. Ry. Co. v. Haber, 169 U. S. 613, 42 L. Ed. 878, 18 Sup. Ct. 488.
The case is again cited in Chicago &c. R. Co. v. Chicago, 166 U. S. 255, 41 L. Ed. 979, 17 Sup. Ct. 581.
In St. Louis &c. Ry. Co. v. Mathews, 165 U. S. 1, 41 L. Ed. 611, 17 Sup. Ct. 243, the Thorpe case is referred to as a leading one.
It is referred to in Pennsylvania R. Co. v. Miller, 132 U. S. 75, 33 L. Ed. 267, 10 Sup. Ct. 34, where the principle involved is said to be well set forth in that and other cases, including Nelson v. Vermont & Canada R. Co., 26 Vt. 717, 62 Am. Dec. 614, and Branin v. The Connecticut & Passumpsic Rivers R. Co., 31 Vt. 214, cases to which reference has already been made.
In the Slaughter Houses Cases, 16 Wall. 36, 21 L. Ed. 394, the view of the police power taken in Thorpe v. Rutland & Burlington R. Co., is quoted for the light it throws upon the nature of that power, difficult as it is of precise demarcation.
The police power and the rights in respect to contracts which are shielded by constitutional protection are considered in the notable case of The Board of Health v. St. Johnsbury, 82 Vt. 276, 73 Atl. 581, 23 L. R. A. (N. S.) 766, wherein it is said, “that that protection does not make those rights absolute in all respects, for if it does, what becomes, the courts ask, of the police power, which inheres in every- free government, and is based on the maxim that you shall so use your own property as not to injure the rights of others, which is a universal and prevading obligation, and a condition on which all property is held, the application of which to particular conditions must necessarily be within the reasonable discretion of the Legislature; and that when such discretion is exercised in a given case by means appropriate and reasonable, not oppressive nor discriminatory, it is not subject to constitutional objection.” See also Lawrence v. Rutland R. Co., 80 Vt. 370, 383, 67 Atl. 1091, 15 L. R. A. (N. S.) 350.
The police power rests in the people of the State, and while ' this right is to be exercised through the legal representatives of the people, one Legislature cannot, by charter-grants or otherwise, so affect that power as to render government a shabby and nominal thing, empty of dignity and palsied in power, but each Legislature, unhampered by the acts of its predecessors, has and must have the right and duty to make such enactments for the well-being of the people as in a proper and strict sense are reserved to the people by virtue of the reservation of the police power.
We are referred to the Dartmouth College case, 4 Wheaton 518, 4 L. Ed. 629; but we are considering a question, that of the police power, practically excluded from consideration there. Precedents are to be applied where they fit, but are not to be tortured.
In N. Y. & N. E. R. Co. v. Bristol, 151 U. S. 556, 38 L. Ed. 269, 14 Sup. Ct. 437, Mr. Chief Justice Fuller in delivering the unanimous opinion of the Court touched upon every phase of the constitutional question now under consideration in this concluding paragraph:
“The conclusions of this Court have been repeatedly announced to the effect that though railroad corporations are private corporations as distinguished from those created for municipal and governmental purposes, their uses are public, and they are invested with the right of eminent domain, only to be exercised for public purposes; that therefore they are subject to legislative control in all respects necessary to protect, the public against danger, injustice, and oppression; that the State has power to exercise this control through boards of commissioners; that there is no unjust discrimination and no denial of the equal protection*454 of the laws in regulations applicable to all railroad corporations alike; nor is there necessarily such denial nor an infringement of the obligation of contracts in the imposition upon them in particular instances of the entire expense of the performance of acts required in the public interest, in the exercise of legislative discretion; nor are they thereby deprived of property without due process of law, by statutes under which the result is ascertained in a mode suited to the nature of the case, and not merely arbitrary and capricious; and that the adjudication of the highest court of a state, that, in such particulars, a law enacted in the exercise of the police power of the State, is valid, will not be reversed by this Court on the ground of an infraction of the Constitution of the United States.”
Very pertinent to this case is the language of the Supreme Court of the United States in 1896: “The plaintiff in error took its charter subject to the power of the State to provide for the safety of the public, in so far as the safety of the lives and persons of the people were involved in the operation of the railroad. The company laid its tracks subject to the condition necessarily implied that their use could be so regulated by competent authority as to insure the public safety. And as all property, whether owned by private persons or by corporations, is held subject to the authority of the State to regulate its use in such a manner as not unnecessarily to endanger the lives and the personal safety of the people, it is not a condition of the exercise of that authority that the State shall indemnify the owners of property for the damage or injury resulting from its exercise. Property thus damaged or injured is not, within the meaning of the Constitution, taken for public use, nor is the owner deprived of it without due process of law. The requirement that compensation be made for private property taken for public use imposes no restriction upon the inherent power of the State by reasonable regulations to protect the lives and secure the safety of the people.” Chicago, Burlington &c. R. Co. v. Chicago, 166 U. S. 226, 252, 41 L. Ed. 979, 17 Sup. Ct. 581.
A litigation recently arose between certain drainage commissioners in Illinois and the Chicago, Burlington & Quincy Railway Company as to the validity of a requirement of the commissioners that the railway company should remove a bridge and culvert at a certain point, and that, if it continued to maintain
In Chicago &c. Ry. Co. v. Nebraska, 170 U. S. 57, 42 L. Ed. 948, 18 Sup. Ct. 513, it was said that where the subject matter of contracts affects the safety and welfare of the public the presumption is that such contracts are entered into “with the knowledge that parties cannot, by making agreements on subjects involving the rights of the public, withdraw such subjects from the police power of the Legislature. ’ ’
Further eases discussing the constitutional questions raised, all in harmony with the cases cited, are these: Union Bridge Co. v. United States, 204 U. S. 364, 51 L. Ed. 523, 27 Sup. Ct. 367; New Orleans Gas Light Co. v. Drainage Commission, 197 U. S. 453, 49 L. Ed. 831, 25 Sup. Ct. 471; Gladson v. Minnesota, 166 U. S. 427, 41 L. Ed. 1064, 17 Sup. Ct. 627; Mobile &c. R. Co. v. Mississippi, 210 U. S. 187, 52 L. Ed. 1016, 28 Sup. Ct. 650;
The difference between the appellants and the commissioners in the matter of platform extension relates to the amount of platform space requisite to the transaction of business with reasonable safety and comfort. This difference seems somewhat marked, but it may be more apparent than real, for the nature and character of the underpass to be ordered, its course, width, grade, and place of termination at the station, may well affect the requirement as to platform space. But the existing situation as to platform space is one of undoubted danger and serious discomfort, and it is for the commission to afford a remedy; and when all matters affecting the platform requirements have been determined by the commissioners in a manner consistent with this opinion, it is for them in the exercise of a sound discretion, since they and the companies agree that the station itself ought not to be moved, to make such orders as the reasonable safety and comfort of travelers and others having business at the station demand; and it is for them to determine what relocation of tracks, upon land already held by the railroad companies, is essential to the provision of such necessarily enlarged platform space.
See Rutland R. Co. v. Bellows Falls &c. R. Co., 73 Vt. 20, 50 Atl. 636, and Rutland-Canadian R. Co. v. Central Vermont Ry. Co., 72 Vt. 128, 47 Atl. 399.
An order for the moving of the rails of a company sidewise, within the limits of land held by the company, for the purpose of remedying a dangerous condition created by the company, is in no essential respect different from an order that rails be raised or lowered for the like purpose. That a railway company may be guilty of neglect of duty in maintaining its tracks in too close proximity to each other is recognized in Morrisette v. Canadian Pacific Ry. Co., 76 Vt. 267, 279, 56 Atl. 1102.
The changes ordered by the commissioners which have not been herein noticed, seem to depend for the propriety of their details upon the plan for an underpass or subway which may be finally adopted, and have not been separately discussed in the hearing before us.
As the crossing is not a public highway, the ruling, or virtual ruling, of the commissioners that the ivhole expense of the requisite underpass and other changes to be ordered is to be apportioned between the railroad companies is affirmed. The manner in lohich the expense falling upon them shall be apportioned between them appears to have been agreed upon. The explicit order as to what changes shall be made is reversed and the cause is remanded that the whole matter may be worked out and decreed upon in harmony with the views herein expressed. With the duty resting upon the railroad companies to promptly remedy a confessedly dangerous situation, and with the duty resting upon the Public Service Commission to 'finally exercise, as soon as may be, its remedial ¡jurisdiction which has been invoked, we have someivhat advanced the consideration of this cause, to the end that both the commissioners and the appellants may, without unnecessary delay, address themselves to the discharge of their duties.