Braley, J.
A board of county commissioners duly organized constitutes a court clothed with judicial functions, and ministerial duties, conferred by statute, and their final decrees until set aside are to be given the same effect and degree of conclusiveness which generally attach to judgments of judicial tribunals. Smith v. Boston, 1 Gray, 72. Brewer v. Boston, Clinton Fitchburg Railroad, 113 Mass. 52, 56, 57. Plummer v. Waterville, 32 Maine, 566. Homer v. Fish, 1 Pick. 435, 439. Cooper v. Reynolds, 10 Wall. 308. Whenever given authority to hear and determine matters submitted to them, the regularity of the proceedings, or the validity of the decision, if they made an error of law, can be inquired into only on certiorari, by which the entire record is brought up for examination. Foley v. Haverhill, 144 Mass. 352, 353. Until thus reviewed the record reciting and setting forth their action is conclusive upon the parties in interest, and not subject to impeachment by collateral attack, unless it appears that the board was without jurisdiction of the subject matter, or the order made exceeded their statutory powers. Old Colony Railroad v. Fall River, 147 Mass. 455. Nichols v. Boston & Maine Railroad, 174 Mass. 379. Ahearn v. Middlesex County, 182 Mass. 518, [303]*303520. If, therefore, the order upon which the plaintiffs rely was within the jurisdiction of the county commissioners, and in terms is sufficiently definite, it should be enforced by an appropriate decree. By the St. 1906, c. 463, the statutes relating to railroads were codified and by Part II. § 258 of that statute R. L. c. Ill, which was in force when the order was passed, was repealed. But by the following section of the same statute any right already accrued was expressly preserved, and it was provided further, that so far as they were the same, the provisions of the codifying act should be construed as a continuation of existing statutes. By R. L. c. Ill, § 124, a railroad company whose location extended over a public way was required to construct its railroad so that it would not obstruct the way, and, unless a crossing at grade was authorized, the railroad must pass either under or over the way. The defendant admits that in the year 1847 the Boston and Worcester Railroad Corporation, to whose franchise it has succeeded, constructed the railroad now operated, under a street which then was and ever since has been a public way in the town of Holliston. Because of certain alleged encroachments by the railroad upon the width of the way, either as originally laid out or established by prescriptive use, the selectmen of the town petitioned the county commissioners for relief under R. L. c. Ill, § 132. The remedy given by this section is independent of the provisions of §§ 133 to 139, whereby, after a crossing has been constructed to pass either over or under the way, changes in the method employed may be ordered upon the petition either of the directors of the railroad corporation or of the mayor and aldermen of a city or the selectmen of a town within whose limits the crossing is situated. Boston Albany Railroad v. County Commissioners, 164 Mass. 551, 554. Nichols v. Boston Maine Railroad, ubi supra. In their petition the inquiry submitted was, whether the railroad was so constructed and maintained across the street as unreasonably to obstruct its use by the public. Obviously this question would have to be determined upon evidence as to tbe location of the way and the exigencies of public travel. The broad contention of the defendant is that the decree entered after a hearing was without authority of law. It strongly urges in support of this position, [304]*304that as the statutes at that time did not require the consent of the county commissioners, the original lay out and construction of the crossing not only were valid but under R. L. c. 53, § 1, after the lapse of time which had intervened since the setting of the first fence, or at common law after the second fence was built, they had no power subsequently to take action, even if it appeared to their satisfaction that the railroad so crossed the way at the time of filing the petition as to obstruct it. Rev. Sts. c. 39, §§ 67, 68. St. 1846, c. 271, § 1. But in so far as the argument rests on the recital in their record, “that the construction of said crossing as carried out was unauthorized,” it may be said that if this is an error of law it does not affect their jurisdiction. Ahearn v. County Commissioners, ubi supra. The board had ample authority to make this inquiry, and to proceed to an adjudication; for the obligation of the defendant’s predecessor, and of the defendant, which controls and operates the railroad, not to obstruct the way is not confined to conditions of travel as they existed when the railroad was built. Commonwealth v. New Bedford Bridge, 2 Gray, 339. Cooke v. Boston f Lowell Railroad, 133 Mass. 185. See Davis v. County Commissioners, 153 Mass. 218, 227. Or as was said in Dickinson v. New Haven & Northampton Co. 155 Mass. 16, 20, where this question was considered, “ Railroad companies which lay out their railroads across existing highways are made subject to the jurisdiction of the county commissioners in respect to their duty of not obstructing the highways, not only at the outset, but continuously. The general policy of the Legislature is to authorize the county commissioners to put upon the railroad companies the burden of keeping the highways free from obstructions which result from building railroads across existing highways. To this end, the county commissioners may at the outset pass such decrees as seem suitable for the purpose; and if necessary to pass further decrees at a later date, jurisdiction is conferred upon them to enable them to do it.” This construction, moreover, is amply supported by the very words of the statute found in § 132: “ If ... it appears that the road so crosses a public way as to obstruct it, or contrary to the provisions of section one hundred and twenty-four,” which required that a railroad should be so constructed across a public way as not to obstruct it, the county [305]*305commissioners, may make a decree “ prescribing what repairs shall be made by the corporation at the crossing, and the time within which they shall be completed.” The position taken by the defendant is certainly no stronger than if the crossing originally had been established by decree of the commissioners under § 126, but, even then, compliance therewith in the beginning would not have relieved the company subsequently from making changes, if in the judgment of the commissioners they had become reasonably necessary to prevent the way from being so narrowed as to impede public travel. R. L. c. Ill, § 3. St. 1906, c. 463, Part II. § 3. Dickinson v. New Haven Northampton Co., ubi supra. By § 140 in the most comprehensive terms the county commissioners are given original jurisdiction of questions relating to obstructions in the public ways, which are caused either by the construction or operation of railroads, and this has been the law since the St. 1849, c. 222, § 4; Gen. Sts. c. 63, § 62; St. 1874, c. 372, § 102; Pub. Sts. c. 112, § 135 ; St. 1906, c. 463, Part II. § 117 ; Springfield v. Connecticut River Railroad, 4 Cush. 63, 68; Boston Maine Railroad v. Lawrence, 2 Allen, 107, 110; Flanders v. Norwood, 141 Mass. 17, 19.
Free access — add to your briefcase to read the full text and ask questions with AI
Braley, J.
A board of county commissioners duly organized constitutes a court clothed with judicial functions, and ministerial duties, conferred by statute, and their final decrees until set aside are to be given the same effect and degree of conclusiveness which generally attach to judgments of judicial tribunals. Smith v. Boston, 1 Gray, 72. Brewer v. Boston, Clinton Fitchburg Railroad, 113 Mass. 52, 56, 57. Plummer v. Waterville, 32 Maine, 566. Homer v. Fish, 1 Pick. 435, 439. Cooper v. Reynolds, 10 Wall. 308. Whenever given authority to hear and determine matters submitted to them, the regularity of the proceedings, or the validity of the decision, if they made an error of law, can be inquired into only on certiorari, by which the entire record is brought up for examination. Foley v. Haverhill, 144 Mass. 352, 353. Until thus reviewed the record reciting and setting forth their action is conclusive upon the parties in interest, and not subject to impeachment by collateral attack, unless it appears that the board was without jurisdiction of the subject matter, or the order made exceeded their statutory powers. Old Colony Railroad v. Fall River, 147 Mass. 455. Nichols v. Boston & Maine Railroad, 174 Mass. 379. Ahearn v. Middlesex County, 182 Mass. 518, [303]*303520. If, therefore, the order upon which the plaintiffs rely was within the jurisdiction of the county commissioners, and in terms is sufficiently definite, it should be enforced by an appropriate decree. By the St. 1906, c. 463, the statutes relating to railroads were codified and by Part II. § 258 of that statute R. L. c. Ill, which was in force when the order was passed, was repealed. But by the following section of the same statute any right already accrued was expressly preserved, and it was provided further, that so far as they were the same, the provisions of the codifying act should be construed as a continuation of existing statutes. By R. L. c. Ill, § 124, a railroad company whose location extended over a public way was required to construct its railroad so that it would not obstruct the way, and, unless a crossing at grade was authorized, the railroad must pass either under or over the way. The defendant admits that in the year 1847 the Boston and Worcester Railroad Corporation, to whose franchise it has succeeded, constructed the railroad now operated, under a street which then was and ever since has been a public way in the town of Holliston. Because of certain alleged encroachments by the railroad upon the width of the way, either as originally laid out or established by prescriptive use, the selectmen of the town petitioned the county commissioners for relief under R. L. c. Ill, § 132. The remedy given by this section is independent of the provisions of §§ 133 to 139, whereby, after a crossing has been constructed to pass either over or under the way, changes in the method employed may be ordered upon the petition either of the directors of the railroad corporation or of the mayor and aldermen of a city or the selectmen of a town within whose limits the crossing is situated. Boston Albany Railroad v. County Commissioners, 164 Mass. 551, 554. Nichols v. Boston Maine Railroad, ubi supra. In their petition the inquiry submitted was, whether the railroad was so constructed and maintained across the street as unreasonably to obstruct its use by the public. Obviously this question would have to be determined upon evidence as to tbe location of the way and the exigencies of public travel. The broad contention of the defendant is that the decree entered after a hearing was without authority of law. It strongly urges in support of this position, [304]*304that as the statutes at that time did not require the consent of the county commissioners, the original lay out and construction of the crossing not only were valid but under R. L. c. 53, § 1, after the lapse of time which had intervened since the setting of the first fence, or at common law after the second fence was built, they had no power subsequently to take action, even if it appeared to their satisfaction that the railroad so crossed the way at the time of filing the petition as to obstruct it. Rev. Sts. c. 39, §§ 67, 68. St. 1846, c. 271, § 1. But in so far as the argument rests on the recital in their record, “that the construction of said crossing as carried out was unauthorized,” it may be said that if this is an error of law it does not affect their jurisdiction. Ahearn v. County Commissioners, ubi supra. The board had ample authority to make this inquiry, and to proceed to an adjudication; for the obligation of the defendant’s predecessor, and of the defendant, which controls and operates the railroad, not to obstruct the way is not confined to conditions of travel as they existed when the railroad was built. Commonwealth v. New Bedford Bridge, 2 Gray, 339. Cooke v. Boston f Lowell Railroad, 133 Mass. 185. See Davis v. County Commissioners, 153 Mass. 218, 227. Or as was said in Dickinson v. New Haven & Northampton Co. 155 Mass. 16, 20, where this question was considered, “ Railroad companies which lay out their railroads across existing highways are made subject to the jurisdiction of the county commissioners in respect to their duty of not obstructing the highways, not only at the outset, but continuously. The general policy of the Legislature is to authorize the county commissioners to put upon the railroad companies the burden of keeping the highways free from obstructions which result from building railroads across existing highways. To this end, the county commissioners may at the outset pass such decrees as seem suitable for the purpose; and if necessary to pass further decrees at a later date, jurisdiction is conferred upon them to enable them to do it.” This construction, moreover, is amply supported by the very words of the statute found in § 132: “ If ... it appears that the road so crosses a public way as to obstruct it, or contrary to the provisions of section one hundred and twenty-four,” which required that a railroad should be so constructed across a public way as not to obstruct it, the county [305]*305commissioners, may make a decree “ prescribing what repairs shall be made by the corporation at the crossing, and the time within which they shall be completed.” The position taken by the defendant is certainly no stronger than if the crossing originally had been established by decree of the commissioners under § 126, but, even then, compliance therewith in the beginning would not have relieved the company subsequently from making changes, if in the judgment of the commissioners they had become reasonably necessary to prevent the way from being so narrowed as to impede public travel. R. L. c. Ill, § 3. St. 1906, c. 463, Part II. § 3. Dickinson v. New Haven Northampton Co., ubi supra. By § 140 in the most comprehensive terms the county commissioners are given original jurisdiction of questions relating to obstructions in the public ways, which are caused either by the construction or operation of railroads, and this has been the law since the St. 1849, c. 222, § 4; Gen. Sts. c. 63, § 62; St. 1874, c. 372, § 102; Pub. Sts. c. 112, § 135 ; St. 1906, c. 463, Part II. § 117 ; Springfield v. Connecticut River Railroad, 4 Cush. 63, 68; Boston Maine Railroad v. Lawrence, 2 Allen, 107, 110; Flanders v. Norwood, 141 Mass. 17, 19. When the plaintiffs as selectmen petitioned the commissioners that the defendant be required to restore the way to its original width, and as it existed at the time when the crossing was first established, the board having been given jurisdiction of the subject under inquiry were empowered to hear and determine whether the way was actually obstructed, by being rendered inconvenient for travel by tbe acts of the defendant. If after a hearing it was found that such obstruction existed, then they were authorized to direct whatever alterations by way of repairs were reasonably necessary to restore the way, but not to exceed its original boundaries when ascertained. Roxbury v. Boston & Providence Railroad, 6 Cush. 424, 438. Old Colony Railroad v. Fall River, ubi supra; Dickinson v. New Haven & Northampton Co., ubi supra. At the hearing for the determination of these questions, all inquiries of fact as to the boundaries of the way, its width when the crossing was built and what encroachments if any had been made by the defendant were not only open but exclusively within their power to decide. Roxbury v. Boston & Providence Railroad, 2 Gray, 460, 466. Such [306]*306an inquiry necessarily must be full and precise, extending to all the details which are requisite for the entering of a decree, and stating the nature and extent of the repairs ordered with such definiteness that, if the railroad refuses or neglects to comply with it, this court under R. L. c. Ill, § 141, now St. 1906, c. 463, Part II. § 118, can compel performance. The decree being sufficiently full and exact, and the board not having exceeded their jurisdiction, no sufficient reason is shown why specific performance should not be decreed. Roxbury v. Boston Providence Railroad, 6 Cush. 424. Roxbury v. Boston & Providence Railroad, 2 Gray, 460.
At the hearing before a single justice the parties agreed, that the jurisdiction of the commissioners to make the decree, depended upon this issue of fact, whether the defendant’s railroad at the point of intersection was constructed and maintained in such a manner as to obstruct the way contrary to the provisions of the statute. This issue was decided adversely to the plaintiffs. But under our system of equity practice, an appeal to the full court with a report of the testimony, unless abridged in scope by some stipulation of the parties, brings up all questions either of law or fact which within the pleadings are involved in the controversy. The plaintiffs consequently are not estopped from contending before us, that until reversed or corrected on certiorari the decree of the county commissioners must stand. Montgomery v. Pickering, 116 Mass. 227. Goodell v. Goodell, 173 Mass. 140, 146. Poland v. Beal, 192 Mass. 559.
The decree dismissing the bill must be reversed, and a decree, with costs, is to be entered directing the defendant to comply with the order of the county commissioners.
Ordered accordingly.