Eastern Massachusetts St. Ry. Co. v. Massachusetts Bay Transp. Authority

• Decision Date: 04 March 1966
• Citation: 214 N.E.2d 889,350 Mass. 340
• Parties: , 64 P.U.R.3d 191 EASTERN MASSACHUSETTS STREET RAILWAY COMPANY v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 889

214 N.E.2d 889

350 Mass. 340, 64 P.U.R.3d 191

EASTERN MASSACHUSETTS STREET RAILWAY COMPANY v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 7, 1966.

Decided March 4, 1966.

Timothy H. Donohue, Boston, for Eastern Massachusetts Street Ry. Co.

William D. Quigley, Boston (John J. Gilbody, Dorchester, with him), for Massachusetts Bay Transportation Authority.

John E. O'Keefe, Lynn, for Boston and Maine Corporation.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, SPIEGEL, and REARDON, JJ.

WILKINS, Chief Justice.

In this bill in equity seeking declaratory relief under G.L. c. 231A, the plaintiff is Eastern Massachusetts Street Railway Company a Massachusetts corporation (Eastern), and the defendants are the Authority, created as 'a political subdivision of the commonwealth' by G.L. c. 161A, § 2, inserted by St.1964, c. 563, § 18, the city of Lowell, the town of Billerica, and Boston and Maine Corporation (B & M). Lowell and Billerica are not among the seventy-eight cities and towns constituting the Authority. Eastern is authorized by the Department of Public Utilities to operate two routes as a common carrier by bus, one between Lowell and the Everett MBTA terminal and the other between Lowell and Boston by way of Billerica. ¹

The matter for determination is the validity of two contracts entered into by the Authority, one with Lowell and one with Billerica. From a final decree upholding their validity, Eastern appealed. The judge made findings from which are taken the facts hereinafter set forth. The evidence is reported.

B & M for many years had provided passenger train service between Boston and Lowell and between Boston and Billerica, most of which, on January 14, 1965, it was granted permission by the Interstate Commerce Commission to discontinue. Accordingly, passenger train service between Boston and Lowell was reduced to one train daily in each direction. Thereupon Eastern increased its bus service and, as a result, its gross revenues.

On December 14, 1964, the Authority, purporting to act under G.L. c. 161A, §§ 3(f) and 23(2), entered into a contract with B & M whereby B & M agreed to provide railroad passenger service as an independent contractor for the account of the Authority inside the Authority's territory and outside that territory as from time to time directed by the Authority. By an amending agreement, dated January 25, 1965, B & M agreed to provide train service within the Commonwealth under the original agreement, 'despite certain contingencies qualifying its obligations under the original agreement.' In March, 1965, the Authority, purporting to act under G.L. c. 161A, § 3(j), entered into two transportation agreements, one with Lowell and one with Billerica, whereby the Authority agreed to furnish to these communities passenger train service by means of B & M's facilities and equipment as provided in the original agreement. Lowell and Billerica were required to pay the Authority for the service 'in accordance with a specified formula.'

The trial judge found that rail transportation furnished under the two transportation agreements will compete with Eastern's bus service and will cause economic damage to Eastern. The declaration in the final decree is that the Authority's contracts with Lowell and with Billerica are valid exercises of the powers granted by G.L. c. 161A to the Authority and do not violate c. 161A, §§ 3(j), 5(k), and 5(j).

A principal argument of the plaintiff is that the two agreements with the defendant municipalities were in violation of G.L. c. 161A, § 3(j)(ii). Section 3 expressly grants the Authority power '(j) To operate mass transportation facilities and equipment, directly or under contract in areas outside the area constituting the authority; but only pursuant to (i) an agreement with or purchase of a private mass transportation company, part of whose operations were, at the time the authority was established, within the area constituting the authority or [italics supplied] (ii) an agreement with a transportation area or municipality for service between the area of the authority and that of such transportation area or municipality, where no private company is otherwise providing such service.' As to this the trial judge ruled, 'The two conditions limiting the power of the Authority to operate mass transportation facilities and equipment outside the own area are stated in the alternative but I rule that both of these conditions have been met by the Authority.'

We agree with the quoted ruling of the judge. It was manifestly correct. The plaintiff struggles to confine the case to the second condition, and permits the first condition to go by default. The sum total of its argument is a non sequitur. The brief states: 'Notwithstanding the alternative phrasing of the statute, the fact is that the Authority has entered into agreements with municipalities outside the area of the Authority for service between the area of the Authority and those municipalities.' It then concludes: 'Thus we are not concerned with whether the first condition of said section 3(j) has been met.' This argument collapses of its own weight. The word 'or' is given a disjunctive meaning unless the context and the main purpose of all the words demand otherwise. Commonwealth v. Keenan, 139 Mass. 193, 194, 29 N.E. 477; Gaynor's Case, 217 Mass. 86, 89-90, 104 N.E. 339, L.R.A. 1916A, 363; Marble v. Treasurer and Recr. Gen., 245 Mass. 504, 508-509, 139 N.E. 442; Lunt v. Aetna Life Ins. Co., 261 Mass. 469, 476, 159 N.E. 461; Robertson v. Robertson, 313 Mass. 520, 529, 48 N.E.2d 29. The present statutory context does not demand or even suggest other than a disjunctive meaning.

The purpose of G.L. c. 161A has been very recently discussed in Massachusetts Bay Transp. Authy. v. Boston Safe Deposit & Trust Co., 348 Mass....