COUNTY COMMISSIONERS OF BRISTOL, petitioners.

KNOWLTON, C. J. This is a petition by the county commissioners of the county of Bristol for the appointment of commissioners to apportion the cost of the construction of a bridge across Acushnet River, between the city of New Bedford and the town of Fairhaven, and the expense of the care and maintenance of this bridge, among the parties liable therefor. The statutes under which the bridge was built are Sts. 1893, c. 368; 1894, cc. 239, 530; 1897, c. 200; 1898, c. 387; 1899, c. 460; 1900, c. 439. A report of the joint board of railroad commissioners and harbor and land commissioners to the Legislature under c. 99 of the Resolves of 1899 was also considered in connection with the statutes. Commissioners were appointed who heard the parties and made a report which was accepted and affirmed by the Superior Court. Judgment was ordered thereon, and certain questions of law were then reported to this court.

The most important of these questions is whether, under the St. 1900, c. 439, § 6, the $220,000 which is to be apportioned upon the county of Bristol and then "to be apportioned by said commissioners between the cities and towns in the county of Bristol, as provided in said section six," that is, as provided in § 6 of St. 1893, c. 368, is all to be apportioned among the "towns and cities in said county . . . which are or will be specially benefited," or is to be apportioned among said towns and cities and the county of Bristol. The apportionment of the cost that accrued under the St. 1893, c. 368, was to be made among the county of Bristol and the cities and towns in the county of

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Plymouth and in the county of Bristol that should be found to be specially benefited. By St. 1899, c. 460, a limitation was put upon the liability of towns and cities in the county of Plymouth. It was then found that a very much larger sum had been expended than the cost as originally estimated, and that a great deal more was needed to complete the bridge. The original plan was for a bridge which would leave the crossing of the railroad on the New Bedford side at grade, but it was then thought important to abolish this grade crossing. Accordingly work was stopped under the legislative resolve of 1899, c. 99, and the board of railroad commissioners and the board of harbor and land commissioners were constituted a joint board to consider the matter and to report to the next General Court various specified facts important in determining what should be done. After consideration of the report made under this resolve, the St. of 1900, c. 439, was passed, which adopted a new plan for future action. The completion of the bridge was taken out of the hands of the county commissioners and entrusted to the city of New Bedford, to be carried out according to plans, specifications and requirements to be furnished by the joint board above mentioned, following the report previously made to the Legislature. This report recommended the abolition of the grade crossing and the construction of the bridge overhead at an expense greatly exceeding that of the grade crossing. The scheme relative to the payment of the cost of that part of the bridge remaining to be built was entirely changed. The apportionment was to be "upon the county of Bristol, two hundred and twenty thousand dollars, to be apportioned by said commissioners between the cities and towns in the county of Bristol, as provided in said section six" of the former statute, and certain percentages were put upon the Commonwealth of Massachusetts, upon the Old Colony Railroad Company, upon the Union Street Railway Company, and upon the town of Fairhaven, and the city of New Bedford was required to pay the balance. By the terms of the former statute the county was to share the expense incurred under it with the cities and towns specially benefited. That expense, as ascertained and reported in the year 1899, was more than $800,000. It was evidently the purpose of the Legislature to leave the expense of the new

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construction to be paid entirely by the parties specially benefited, on the ground that the part of $800,000 which would ultimately rest as a burden upon the taxpayers of the county, including inhabitants of cities and towns that would not be specially benefited, was as much as ought to be paid by them. So we have the provision putting $220,000 upon the county and then requiring it to be apportioned "between the cities and towns in the county of Bristol." In this last apportionment the county is left out, and the words, "as provided in said section six," have no other meaning than to incorporate the requirement of that section that the apportionment shall include only such cities and towns as are specially benefited. We are of opinion that the ruling of the commissioners and the court upon this part of the statute was correct.

The Old Colony Railroad Company raises a question as to the thirty-three per cent of the balance above the $220,000 which the statute requires it to pay. We do not exactly understand the objection. It is not argued that the statute is unconstitutional. It provided for a very important change in the public travel at the crossing, which is beneficial to the corporation as well as to the public. The public travel is now carried over the railroad instead of crossing it at grade. Whether the public crossing at grade is technically abolished or not in view of the fact that there are two abutters on the old way between the railroad and the river, there is no doubt of the constitutional authority of the Legislature to impose a part of the expense of this change upon the railroad company. Norwood v. New York & New England Railroad, 161 Mass. 259. The ruling on this point was correct.

The petition for the appointment of commissioners to apportion the cost was filed on July 8, 1904. After hearings at length before the commissioners, it was found that the apportionment could not be completed because a part of the cost had not been ascertained, owing to the pendency of suits for the determination of damages to land. Thereupon the St. 1906, c. 238, was passed, providing for an apportionment of such cost as had been determined and paid, and "for the apportionment of such part of the cost as has not been ascertained or paid at the date of its report by declaring in what percentages such cost shall

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hereafter be apportioned when it has been ascertained and paid." This statute is silent in regard to the manner in which this last apportionment shall be made, and the question arises whether it changes the provisions by which the commissioners would have been governed if this cost had been determined previously. There is nothing to indicate an intention of the Legislature to make such a change. There was no change unless by the failure to state expressly in the second section, by what principles the commissioners should be governed in making the apportionment, the statute left them to adopt any method that they should deem best. If this failure to say anything on the subject repealed the provisions of the law applicable to the apportionment of this cost had it been determined previously, the commissioners might put a large part of it upon the county of Bristol, or distribute it in any way in which the Legislature may distribute such expenses. We do not think this is the true meaning of the statute. The natural construction of it is that the apportionment should be made as it would have been if the cost had been determined and paid, the only purpose of the Legislature being to permit the apportionment before the ascertainment of the amount.

There is no doubt that this cost, if it had been determined previously, would have been a part of that to be paid under the St. 1900, c. 439, § 6, in the proportions of twelve per cent by the Commonwealth, thirty-three per cent by the Old Colony Railroad Company, ten per cent by the Union Street Railway Company, five per cent by the town of Fairhaven, and forty per cent by the city of New Bedford, subject to a limitation of the aggregate amount payable by these parties, respectively, except the last, and to a possible increase upon the city of New Bedford by reason of this limitation. We are of opinion that the apportionment should be modified so as to make the percentages conform to this part of the statute.

A single question remains as to interest upon the amounts payable to the county of Bristol for the time from the filing of the report to the time of the entry of judgment. This question arises under the St. 1893, c. 368. This statute makes no provision for a payment of interest during this period. It is not contended that interest can be allowed as damages on the ground

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that the money is wrongly detained after it becomes payable, for it cannot be paid until after the judgment is entered. It is not within the language of R. L. c. 177, § 8, which relates only to awards of county commissioners, committees or referees, or reports of auditors or masters in chancery, or verdicts of juries. This statute was in force at the time of the decision in Needham v. Wellesley, 139 Mass. 372, 376, which in this particular is almost identical with the present case, and which holds that such interest cannot be charged. See also Hendrick v. West Springfield, 107 Mass. 541; Bowers v. Hammond, 139 Mass. 360. The allowance of this interest was erroneous.

The determination of the commissioners in regard to the maintenance and support [Note p262] of the bridge cannot be revised in this court.

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The report is to be modified as to the apportionment of the cost not yet determined, and the interest referred to is to be disallowed.

So ordered.

F. S. Hall, (J. M. Swift with him,) for the county of Bristol.

W. B. Perry, for the city of New Bedford.

C. W. Clifford, for the town of Fairhaven.

H. A. Dubuque, for the city of Fall River.

O. Prescott, Jr., for the Union Street Railway Company, submitted a brief.

J. H. Benton, Jr., for the Old Colony Railroad Company, submitted a brief.

W. C. Parker, for the town of Dartmouth, submitted a brief.

W. B. Perry, L. W. Jenney & G. H. Potter, for the town of Acushnet, submitted a brief.