This case was decided in June 1860.
By the Court.*The appointment of these commissioners, and the powers vested in them, are not fixed by a special enactment, relating to these particular roads; but, by a general law, St. 1845, c. 191, applicable to all similar cases. Such being the character of the law, in order that its provisions may be adapted to the various cases which may arise, the powers conferred by it are necessarily broad and unlimited, and to some extent discretionary, in order that persons suitably qualified in point of skill and experience may prescribe a rule of compensation suited to the particular case, taking into consideration all circumstances of day or night, running at particular hours, influenced as they must be by the number of passengers, the quantity of freight to be carried, and the like.
In putting a construction upon such a statute, where persons are appointed commissioners on the ground of their experience and ability to prescribe the modes of accomplishing certain results, and their powers are not defined, the legislature by necessary implication intends to invest them with all the powers appropriate and necessary to accomplish the purposes intended
1. The first objection to the acceptance of the award is, that *272the commissioners have prescribed the time for running the trains of the Lexington and West Cambridge Railroad Company, and thereby exceeded the powers vested in them by this court.
The powers of the commissioners are vested in them by law; this court does nothing more than make the appointment of the commissioners, and that usually by the agreement of parties.
But we do not see how this exceeds their powers. The parties had agreed to na times for running trains ; none are stated in the petition or in the commission. If they could not be fixed by the commissioners, then the Fitchburg Railroad Company might have fixed times, altogether unsuited to the wants and purposes of the Lexington and West Cambridge Railroad Company. Suppose it suited the purpose of the Fitchburg Railroad Company to run a train from Fitchburg to Boston, late in the afternoon, reaching North Cambridge at six or seven o’clock, and from Boston to Fitchburg at seven in the morning. This would probably be unsuited to a local passenger train, extending ten or twelve miles from Boston, whose business would mostly consist in carrying passengers to the city in the morning to return them in the afternoon. Had the parties agreed upon the times of running trains, and given power to the commissioners to fix the rate, it would have been a real restriction upon their powers; but that not being done, it appears to us that it was incident to the general power of the commissioners to prescribe the times of trains.
2. The second objection is, that the commissioners give to the Lexington and West Cambridge Railroad Company the right to choose at what times the independent and special trains shall be run.
It appears to us, that this objection is not supported by the award. Such latitude of choice is not given; a right of choice is given with some limitations, which we think reasonable.
3. It is objected that the commissioners awarded five extra trains in the year for holidays, &c. and the privilege of fixing the times.
Why should they not ? If this was found to be a profitable part of the carrying business, by the Lexington and West Cam*273bridge Railroad Company, why should they not continue to enjoy it, on payment of an adequate compensation for drawing the cars. We see no excess of authority in this.
4, 5. The next two exceptions appear to us to come under some of the reasons already given. They seem to be reasonable modifications of the rights of the respective parties, in conducting their business, and well adapted to promote the accommodation of each, with as little interference as practicable.
6, 7, 8. The modes adopted by the commissioners, to ascertain the number of each class of passengers, and to determine the compensation to be paid to the respondents for drawing over their road the cars, passengers and freight of the petitioners, were within the authority conferred upon the commissioners by the St. of 1845, c. 191. See also Boston & Worcester Railroad v. Western Railroad, ante, 260.
9. It is objected that the commissioners have made no distinction, in requiring the Fitchburg Railroad Company to haul the cars of the Lexington and West Cambridge Railroad Company over that part of the Fitchburg Railroad, which was once the Charlestown Branch Railroad.
This objection, we think, is untenable. When the Fitchburg Railroad Company were authorized to purchase, and did purchase, the Charlestown Branch Railroad, it became a part of their own road, liable to the same duties as if the same had been built under their own charter. At the time when the act was passed authorizing the Lexington and West Cambridge Railroad Corporation to enter upon the Fitchburg Railroad in Cambridge, and use the same or any part thereof, in May 1855, the Charlestown Branch Railroad had become a constituent part of the Fitchburg Railroad.
10. It is objected that the commissioners have declared the principles on which the claims of the parties shall be settled for a period anterior to their appointment.
The court can perceive no excess of power in this. It was a period, subsequent to the filing of the petition, during which no agreement subsisted between the parties, and therefore was embraced in the reference to the commissioners.
*27411. The same consideration suggests an answer to the next objection. The award, when accepted by the court, relates back, and covers the whole period submitted to the determination of the commissioners. See Boston & Worcester Railroad v. Western Railroad, ante, 265.
12. The true meaning of the award of the commissioners is not that each corporation should be liable for the fraud or neglect of the other, but should be liable to the other for its own neglect. This is only declaring a principle of the common law, which would have been equally true, without their award. It forms no objection to the award.
13. The provision for an independent train “ as soon as convenient,” in case of delay at the junction of the two roads, is reasonable, and within the scope of the commissioners’ authority. The provision imposing a liability for damages for frequent unreasonable want of punctuality may be treated as surplusage, which does not vitiate the award in other particulars.
Award accepted and judgment accordingly.
Hoar, J. did not sit in this case.