Attorney General v. City of Boston

• Citation: 123 Mass. 460
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 19 December 1877
• Parties: Attorney General v. City of Boston & others. John A. Lowell & others v. Same

123 Mass. 460

Attorney General v. City of Boston & others.

John A. Lowell & others v. Same

Supreme Court of Massachusetts

December 19, 1877

[Syllabus Material] [Syllabus Material]

Suffolk. Two applications for a writ of mandamus to the city of Boston and to the board of directors for the East Boston ferries the first by information of the attorney general, and the second by petition of ten citizens and taxpayers of Boston, and each containing the following allegations:

That by the St. of 1869, c. 155, "the city council of the city of Boston was authorized to purchase the boats, franchise and other property of the East Boston Ferry Company, a corporation maintaining and operating a steam ferry between Boston proper and East Boston, at such price as might be agreed upon, and to cause the said ferry to be maintained in such manner and upon such rates of ferriage as the board of aldermen of the city should from time to time judge the best interests of the said city to require, except only as in said act afterwards provided; that said act, by its second section, provided that, upon the completion of the purchase, the city council should consider and determine whether the interests of the city would be best promoted by maintaining said ferry thereafter free of tolls, and in case it should decide the same in the affirmative, that the said ferry should thereafter be maintained free of tolls, and that in such case the board of aldermen should adjudge and determine whether the territory of that part of the city called East Boston and Breed's Island, or any and what part thereof, would receive any benefit and advantage therefrom beyond that general advantage which would be received therefrom by other parts of the city, and what portion of the cost of such purchase should be borne by the city, and what portion by the owners of real estate in East Boston and Breed's Island; and further provided for the ascertaining, assessing and collecting betterments from said owners of real estate; that said act further provided, that if the city council, upon the completion of the purchase, should adjudge and determine that, instead of maintaining the ferry free of all tolls, it was for the best interests of the city that the ferry should be thereafter operated with more boats and greater facilities for travel and business, and at one cent ferriage for a foot passenger, instead of two cents as theretofore, and with the other rates of ferriage so reduced that the receipts of the ferry should not exceed the cost of operating the same, instead of paying, as provided by the charter of the company, at least eight per cent. annual dividends, then the city should maintain and operate said ferry with such greater accommodations and at such reduced rates, or with such other greater accommodations and at such more reduced rates of ferriage as the board of aldermen might judge expedient from time to time; and further provided for the assessment of a betterment not exceeding one half the cost of the purchase on the benefited estates; that said act further provided that if the city council, instead of adjudging to maintain the ferry free of all tolls, should adjudge and determine that it was for the best interests of the city that the ferry should be maintained free of tolls for a term of ten years next succeeding said purchase, and thereafter upon such rates of ferriage as might then be adjudged by the city, then the city should operate said ferry free of tolls for ten years, and might then assess a betterment as aforesaid not exceeding one half the cost of said purchase." ^[*]

"That after the passage of said act, the city of Boston purchased the franchise and property of said East Boston Ferry Company for the sum of two hundred and seventy-five thousand dollars, the purchase to go into effect April 1, 1870, and has ever since maintained and operated said ferry.

"That on February 11, 1870, the city council passed an ordinance called 'An ordinance to establish a board of directors for the East Boston ferries,' providing for the election annually of a board of directors, who should hold their respective places until others should be elected to fill them, and giving said directors the general care and management of the East Boston ferries, and for that purpose giving them all the powers vested in the city council, so far as the same could be legally delegated; and further providing for the establishment of rates of toll, to be based on an income sufficient to cover the current expenses of maintaining the ferries, and the payment of the interest on the ferry scrip; and the petitioner asks leave to refer to said ordinance as printed among the ordinances of said city." Ordinances of Boston, (ed. 1876.) 293.

That on March 24, 1870, the board of aldermen fixed the rates of toll to be collected according to a schedule annexed, (in which the ferriage for each foot passenger was fixed at two cents,) "and the said tolls so fixed are now the lawfully established tolls which said city council and said ferry directors are bound by law to collect;" and that the present board of ferry directors consists of seven persons, whose names were given.

"That inasmuch as said city council, upon the completion of the purchase of said ferry, considered and determined whether the interest of the city would best be promoted by maintaining said ferry thereafter free of tolls, and did not decide the same in the affirmative, but on the contrary determined to impose tolls and to maintain the ferry as a toll ferry, under the management of a board of directors as aforesaid, the said city became thereupon bound to maintain the said ferry as a toll ferry, and to collect the tolls fixed or to be fixed by the board of aldermen as aforesaid, and that until other rates of toll shall be fixed by said board, it is the duty of the said city, and of the said ferry directors, by virtue of said statute and ordinance, to collect the tolls now established as aforesaid by said board of aldermen.

"That the said city council, regardless of its duty to maintain said ferry as a toll ferry, and pretending that it still has, after the lapse of more than seven years since the purchase of said ferry, the power to establish a free ferry which was expressly given to them to be exercised only upon the completion of the purchase, did, on July 30, 1877, pass an order in the following terms, viz. 'Ordered, that on and after the first day of January, 1878, the tolls on the East Boston ferries be abolished, and the said ferries be run free to the public travel.'

"That the said statute of 1869, c. 155, so far as it purports to authorize said city to run said ferry free of tolls, is unconstitutional and void, and that said last-named order was passed without authority, and is wholly inoperative, illegal and void.

"That the said city of Boston and the said board of directors intend, in pursuance and under color of the supposed authority and requirements of said illegal order, to cease collecting tolls on said ferry on and after said January 1, 1878, and to maintain said ferry as a free ferry on and after that date, and to assess the whole cost of maintaining said ferry on the taxpayers of said city."

The information and the petition each prayed for an alternative writ of mandamus to the city of Boston, and to the board of directors for the East Boston ferries, commanding them to continue, after January 1, 1878, to collect the tolls established as aforesaid, or such other tolls as may be hereafter established by the board of aldermen of said city, according to law, or show cause why they should not do so.

The city of Boston and the board of directors for the East Boston ferries filed general demurrers to the information and petition respectively, and the cases were thereupon reserved by Morton, J., for the determination of the full court.

Alternative writ of mandamus issued.

J. G. Abbott & E. R. Hoar, for the city of Boston.

W. G. Russell, (G. Putnam, Jr., with him,) for the attorney general and the petitioners.

OPINION

Gray C. J.

These are applications for a writ of mandamus to compel the city of Boston (which in 1870 purchased and now holds the franchise and property of the East Boston Ferry Company) and the board of directors for the East Boston ferries (to which the city council has committed the general care and management of the ferries) to continue to collect the tolls established by the board of aldermen upon those ferries. The respondents have filed general demurrers, thereby admitting all the facts alleged; and the prayer for a writ of mandamus to the board of directors having been waived at the argument, the matter to be determined is whether, upon the facts alleged and admitted, such a writ should be issued to the city of Boston.

The questions presented are of such public interest and importance, that they have, with the assent of counsel, been considered by all the judges, and the opinion now announced is the unanimous judgment of the whole court.

The main question is of the validity of the order passed by the city council on July 30, 1877, in the following terms: "Ordered, that on and after the first day of January, 1878, the tolls on the East Boston ferries be abolished, and the said ferries be run free to the public travel."

By the St. of 1869, c. 155, § 1, the city council was authorized to purchase the franchise, boats and other property of the East Boston Ferry Company, and to cause the ferry to be maintained "in such manner and upon such rates of ferriage as the board of aldermen of said city shall from time to time judge the best interests of said city to require, excepting only as hereinafter provided."

The subsequent sections of this statute offered to the choice of the...