without the proper order of the board. For the purpose of enabling the board to perform their duties, they have power at all times to enter upon railways, * and examine their works, and the companies' officers are subjected to penalties, for wilfully obstructing an officer of the board in the discharge of such duty. 2. And the board have authority to determine all questions in dispute between different railways, in regard to their connections, so far as such questions relate to the safety or convenience of the public, and to determine by whom the expenses attending the arrangements shall be borne.3 3. The Board of Trade have power also to determine in what mode land-owners adjoining railways, having the right to connect branch railways with the main track of an existing railway, shall be allowed to exercise the same consistently with the rights of the company and the safety of the public. And where railways cross highways or turnpikes, private ways or tram-ways, on a level, and the railway is willing to carry such way over or under their railway, by means of a bridge or arch, at their own expense, on the application of the company and hearing the parties, if it shall appear that the level crossing endangers the public safety, and that the proposal of the company does not violate existing rights without adequate compensation, the board may 3 5 & 6 Vict. c. 55, §§ 5 & 6 & 11; 3 & 4 Vict. c. 97, §§ 5 & 6; 7 & 8 Vict. c. 85, § 15. And where, by act of parliament, disputes between three different lines of railway, meeting at one point, in regard to the mode they should forward the traffic, coming from each other's lines, are to be settled by arbitration, upon the application of either party, upon fourteen days' notice, the arbitrators to have power to direct all measures necessary for the accomplishing the desired object, it was held to come within the range of the powers of the arbitrators to determine what trains should be run, and the speed at which they should run, and the places of stopping, and that one company should carry the cars and carriages of the others over their own line, and that it was not indispensable that the arbitrators should fix the time for the continuance of their regulations, as either party might compel a new arbitration, at any time, by fourteen days' notice. The Eastern Union Railway v. The Eastern Co. Railway, 22 Eng. L. & Eq. 225. And a court of equity will interfere between two railways, entitled to the joint use of a station, by prescribing regulations for its management, but such interference ought not to take place without grave occasion. The court may also direct a partition of the station, and appoint a receiver, if necessary. But where provisions exist for the settlement of such disputes by arbitration, the court will withhold its interposition until that remedy has been resorted to. give the company power to build a bridge or make such other arrangements as the nature of the case shall require.1 4. But in a recent case before the Lords Justices, upon appeal, it was held, affirming the decision of Stuart, V. C., that the Court * of Chancery had no power to review the decision of the Railway Commissioners, whose office was not that of mere arbitrators, but quasi judicial.5 5. And the courts of equity, or, by the late statutes, all the courts in Westminster Hall, have jurisdiction to determine questions affecting the public accommodation, by means of imperfect railway connections. But they decline to interfere where there is every reasonable accommodation afforded, and there is no general complaint, although a single person claims further facilities by means of different possible arrangements.7 6. Our own views in regard to the desirableness and efficiency of Railway Commissioners in this country, are presented somewhat in detail in a report to the legislature of the Commonwealth of Massachusetts, in the year 1865, the substance of which we venture to insert in the note below.8 4 553. Newry & Enniskillen Railway v. The Ulster Railway, 39 Eng. L. & Eq. 6 17 & 18 Vict. c. 21. 7 Bassett.v. Great Northern & Great Midland Railways, 28 Law Times, 254, January, 1857; s. c. 38 Eng. L. & Eq. 218. › We should have been gratified to present some scheme of legislation which would relieve the general court of the annoyance and burden of examining and disposing of the multiplicity of legislative projects likely to come before them, at every session for some years, in regard to this subject. But none has occurred to us, as at all hopeful, unless it were to be found in a permanent board of railway commissioners, who should assume the general jurisdiction of all disputed questions arising in regard to railway management and operation within the commonwealth; and to whom all projects for legislative amendment, or extension of the existing law, should first be submitted, and only be liable to come before the general court upon their favorable report. This was advocated before us by many gentlemen of learning and experience in the matter of railway management, and was opposed by as many others of equal weight; so that we could gain very little aid in that way upon the point. The proposition before us was to recommend a special board of commissioners to have the supervision of street railways alone. 1. This matter is so important that we have ventured to state our views in regard to it somewhat in detail. We supposed that whenever the general court SECTION III. Returns to be made to the Board of Trade, or Railway Commissioners. 1. May require companies to return traffic | 2. Third class trains and mail trains. 3. Time of completing roads. and accidents. § 248. 1. The Board of Trade in England have by statute power to require railways to make certain returns to them, upon became convinced that such a general supervision of the interests and management of railway traffic within the commonwealth had become necessary, it would naturally be extended to the steam roads as well as others, and that the whole matter would probably be committed to one board. We should not, therefore, have felt justified in reporting a bill for the creation of such a board, unless the entire subject of railway traffic in the state, were embraced in it, and that would carry us beyond the range of our commission. But there can be no question that such a board would be of immense value to the interests of the public, as well as that of the railways, if it could be established upon a proper basis, and suitable talent could be secured for the performance of its duties. 2. This power was for a long time, and is at present, exercised in England by the Board of Trade. From the year 1846 to 1851 the function was committed to a special board called the Railway Commissioners. This board, in whichever form it existed there, has had the general supervision of railway legislation, although these bills are now required to have the approbation of a permanent standing committee of the House of Commons, before being introduced into parliament. This board have also the unlimited control of railway connections; the running and connection of trains; the equalization of the rates of fare and freight; the time and fitness of new lines of railway being opened for traffic, and the connection and operation of branch lines intended for the accommodation of special business near the main routes. The decisions of the board are considered so far in the nature of a final adjudication, that they are not revisable in a court of equity, although they have to be carried into effect by the decrees of that court, whenever obedience to them is not voluntarily rendered. Railway returns are made to this board, and are combined and classified by them, which seems quite indispensable to their being of much use to any one. This board has proved of immense and indispensable importance there, and we see no certain ground to question its being made equally so here, if properly constituted. 3. It would save a great deal of expense and inconvenience to both classes of railways, which at present seems inevitable. It would at the same time relieve the general court of much embarrassment and delay, which it might not be ticable to save in any other way. We feel, therefore, as before intimated, that prac subjects connected with the public interests, such as the aggregate traffic in cattle and goods respectively, and also in passenwe have the most satisfactory grounds for saying, that such an arrangement, when satisfactorily established, could not fail to prove of immense benefit to the public interest as well as that of the railways. 4. There is one function of such a commission in regard to steam railways, which, if it could be effectually performed, would be of inestimable value to the security of railway travel, and which it is not easy to obtain in any other mode; we mean such inspection and supervision of the railway structures and works throughout the commonwealth, as to give proper assurance that they were in a safe condition for use for passenger transportation. (1.) The law in this respect is established upon such a basis that there is no ground of complaint. Common carriers of passengers by steam railways are required to maintain every agency put in requisition, in the course of such transportation, in the most perfect condition, so far as security against injury to life or person is concerned, which any human foresight, wisdom, or skill can effect. The road-bed is to be as complete in every respect as it is possible to make it. So, also, of the superstructure. The rail is to be made of the best iron; in the most approved form, and by the best workmanship. The cars are to be constructed and maintained in the same manner. Every operative, from the highest to the lowest, in any manner connected with passenger transportation, must not only know his whole duty, but he must also perform it in the coolest, most perfect manner, or the company are responsible for the evil consequences. This is indeed a most stringent rule of responsibility; but not more stringent than the value and the peril of the interests at hazard imperiously demand. (2.) It is obvious, if this high standard of requirement were always maintained, none of those fearful and destructive accidents which so often shock the public mind could occur. And it is well known, that upon the continental railways in Europe, and especially that from St. Petersburg to Moscow, where millions of passengers are transported annually, not a single accident affecting the life or person of passengers has occurred for years, and may reasonably be exIt is pected. never to occur; while here they are almost of daily occurrence. true, no doubt, that the best managed roads in our own country have come to maintain their works in the most perfect manner, out of regard to economy as well as duty, probably; but there are numerous others, where, for many reasons, the case is entirely otherwise; and where the passenger traffic is continued with such defective appliances as to expose the managers of the roads to indictment and conviction for manslaughter, at the very least, where any death is thereby produced. And this is sometimes the case upon the leading thoroughfares in the country. (3.) It unquestionably becomes the duty of every state to take effective measures to prevent and to correct all such abuses within their own limits. And the fact that no such deplorable tendencies have as yet developed themselves within this state, if such be the fact, is no safe ground to justify any relaxation in regard to the proper safeguards being seasonably applied. For the consequen gers, according to the several classes; the accidents occurring attended with personal injury, and in some cases such as are not. 2. The railway companies in England are required to convey passengers by third-class trains, at certain specified rates, and these trains being intended for the public benefit, and to prevent exorbitant demands of fare, are under the control of the board. The speed of mail trains, within certain limits, is under the control of the board.1 3. The board have power, too, to extend the time for completing railways, fixed by their special acts, and for the compulsory powers of taking land in certain cases, or to allow the abandonment of railways, or certain parts thereof, which are found not sufficiently remunerative to justify their continued operation.2 ces of such criminal negligence are so fearful, and so irremediable after they occur, that no wise legislature could justify the omission of any reasonable safeguard against their occurrence, when so well assured of the happening of numerous similar accidents in many of the other states within the last few months, which might in all probability have been prevented by the slightest precautions, if only faithfully and seasonably applied. 5. But after having said so much in favor of some efficient supervision of the passenger railway traffic in the commonwealth, we feel bound further to state, that in reviewing the railway legislation of the different states, we find that boards of railway commissioners exist in most of the states where the railway systems are most matured, and we are not informed that it has produced an entirely efficient enforcement of the legal duties of passenger carriers by railway in those states. We greatly fear that it has had no very sensible effect in that direction. Whether this unfortunate result there is from some defect inherent in the nature of things under our system of government, and with our free notions in regard to business and the strict enforcement of law, is a broader inquiry than we feel prepared to encounter at this time. There is no doubt some difficulty of that character; more, probably, than it would be easy to make the public mind comprehend; but we believe it is not invincible. 6. There is no question a good deal of it might be obviated by a careful selection of the commission, and by giving ample salaries, and requiring the members to give their whole attention to this one subject, and not be employed in any other office, profession, or pursuit, from which any emolument is derived during their continuance in the office, and by making the commission as entirely separate from all employment or support of the railways as practicable; as much so as the judicial tribunals of the commonwealth are. It would seem entirely practicable, in this mode, to render such a board effective and impartial, and at the same time acceptable to the public and to the interests under their supervision. |