
    Commonwealth vs. The Fitchburg Railroad Company.
    The Lancaster and Sterling Branch Railroad Company were authorized by their charter to locate their road, commencing at a certain point, “ thence running through Acton, Sudbury, Stow, Marlborough,” &c. It was held, that they were not obliged by this act to locate their road through these towns in the order named; but that a location from Acton through Stow to Sudbury, and thence through Stow again to Marlborough, was valid. It was held, also, that the petitions to the legislature, on which the act was granted, were inadmissible in evidence to 'affect the construction of the act in this particular.
    This was an indictment for a nuisance in placing sand and gravel in a highway in Stow. The defendants pleaded not guilty. The trial was in the court of common pleas before Wells, C. J., who reported the case for the decision of this court on certain questions of law hereinafter stated.
    By the St. of 1846, c. 239, certain persons were incorporated by the name of the Lancaster and Sterling Branch Railroad Company, with authority to locate and construct a railroad, “commencing at some convenient point on the Fitchburg railroad in the town of Acton, thence running to the village of Stow, thence through Bolton and Lancaster to a point in Sterling, convenient to intersect the contemplated railroad from Fitchburg towards Worcester; or, at the option of said company, commencing at some convenient point on said Fitchburg railroad, in the westerly part of the town of Concord, thence running through Acton, Sudbury, Stow, Marlborough, Bolton, Berlin, and Lancaster, to the terminus aforesaid in said Sterling.” The act authorized this corporation to unite with the Fitchburg railroad company, by vote of their respective stockholders, and upon such union to take the name of the Fitchburg Railroad Company. The acceptance of the act, the organization under it, and the union of the two corporations pursuant to its provisions were admitted.
    The defendants, within the time allowed by law, filed a location of the said branch road, according to which it commences in the westerly part of the town of Concord, runs parallel with the line of the Fitchburg railroad to Acton, and is used for the branch road and also as a second track of the Fitchburg railroad; thence through a corner of the town of Stow to Sudbury; thence again to Stow and Marlborough, Bolton, &c. The legality of the remainder of the location is not in controversy.
    It was contended by the attorney of the commonwealth, that if, under the act creating the corporation, the defendants elected to locate the road, in pursuance of the last or alternative route mentioned in the act, commencing in the westerly part of the town of Concord, they were bound to locate the same through the towns therein named in the order in which they are named in the act; and thereupon he offered in evidence, to affect the construction of the act, certain petitions to the legislature, in consequence of which, as he stated, the act in question was passed. This evidence was objected to by defendants, but was admitted.
    The defendants contended, that upon the true construction of that part of the act, providing an alternative location, they were fully authorized to locate their road in and through the towns therein named in such succession, or more than once, if need be, as a careful final survey, after the granting of the charter, should show that the public interest and that of the corporation required, and that all said towns constituted, with the termini, limits within which, pursuant to said act and the provisions of the revised statutes, they might locate the road or change its location as the necessities and interests of the corporation might require.
    The presiding judge, for the purposes of the trial, ruled in favor of the commonwealth, and reported the above questions as to the admissibility of the evidence, and the construction of the charter of the corporation, and the rights of the defendants for the decision of this court.
    This case was argued at the sittings in Boston, in February last, by S. Bartlett, for the defendants, and Clifford, (attorney general,) for the commonwealth.
   Fletcher, J.

The principal question in this case is, whethet the defendants violated their charter by the manner in which they located their road. The charter, in prescribing the route for the location and construction of the road, says, “ running through Acton, Sudbury, Stow, Marlborough, Bolton,” &c.

The road was in fact located so as to pass through a corner of Stow, before coming to Sudbury, thence on to Sudbury and Stow again, thence through the other towns in the order in which they are mentioned in the charter. For the commonwealth it was maintained, that the defendants were bound to locate their road through the towns named, in the order in which they were named, and that it was, of course, a violation of their charter to locate the road through a corner of Stow, before passing through Sudbury. The decision of this question depends entirely on the construction of the charter, and the meaning of the charter being perfectly clear and intelligible, that meaning cannot be altered or varied by any extraneous evidence. The charter requires, that the road should go through the towns named, and that is all it requires; there is nothing directing the order in which the road should pass through the towns, nor restricting it to passing through them but once. The charter says, “ running through Acton, Sud-bury, Stow, Marlborough,” &c., in the most general terms. It does not even say running through Acton, thence to Sudbury, thence to Stow, &c.; it says nothing, and imports nothing, and upon a just construction can be taken to mean nothing, more than that the road should go through those towns. The order in which the towns are named in the charter has no reference to the order in which the road shall be located and constructed through those towns. The charter was not in tended as a particular description or plan of the location. The legislature deemed it for the public good to provide that the road should go through the towns named, and beyond that it was not deemed necessary to make any provision. The legislature was willing to leave it to the corporation, to locate and construct their road so as to pass through the towns in such order and so many times as in their discretion should be expedient and necessary for the accommodation of the public travel and business.

If it had been the intention of the legislature to restrict the corporation in these particulars, the charter, no doubt, would have been more particular and specific. It was, therefore, no violation of the charter for the defendants to locate their road through a corner of Stow before entering Sudbury.

New trial granted.  