Boston, W. & N. Y. St. Ry. Co. v. Commonwealth

• Decision Date: 25 October 1938
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BOSTON, WORCESTER & NEW YORK STREET RAILWAY COMPANY v. COMMONWEALTH.

301 Mass. 283

17 N.E.2d 166

BOSTON, WORCESTER & NEW YORK STREET RAILWAY COMPANY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

October 25, 1938

December 14, 1937.

Present: FIELD, C.

J., LUMMUS, QUA & COX, JJ.

Department of Public Works. Street Railway, Location. Way, Public: street railway location, State highway. Contract, Validity.

The department of public works, in laying out and constructing a State highway with Federal aid, had no power to contract with a street railway company to pay it money of the Commonwealth in return for the company's abandonment of its location within the proposed highway.

PETITION, filed in the Superior Court on April 12, 1935. There was a finding for the petitioner in the sum of $481,380.45 by Walsh, J. The respondent alleged exceptions.

E. O. Proctor Assistant Attorney General, for the Commonwealth.

B. W. Warren, (D.

C. Starr with him,) for the petitioner.

QUA, J. This is a petition to recover against the Commonwealth the sum of $363,306 and interest alleged to be due under a purported contract in writing between the petitioner and the Commonwealth hearing date April 11, 1932.

The alleged contract is executed in behalf of the Commonwealth by the department of public works. It recites that the department has laid out and taken charge of "the Worcester Turnpike, so called," in Framingham, Natick, Wellesley and Newton, and contemplates the laying out and taking charge of an extension easterly into the town of Brookline; that the "Company" (petitioner) has been granted "franchises to operate" and is operating a street railway in those municipalities; that the department is of the opinion that public necessity and convenience require the elimination of the company's tracks from within the location of the turnpike; and that such elimination will result in saving a large sum which would be required for the construction of the turnpike if the tracks were permitted to remain. The Commonwealth agrees to pay to the petitioner the sum of $363,306 and also to pay for certain work done and to be done by the petitioner, not to remove the petitioner's rails and equipment under a previous relocation order or otherwise until the sum first mentioned shall have been paid and then to take out the petitioner's tracks, poles and equipment from within the layout of the turnpike, to keep a portion of the turnpike open during construction for the operation of the petitioner's buses, if such operation shall be authorized, "to assist the Company in every possible way in accommodating the public on this line," and to "use every endeavor" to secure for the petitioner from municipal authorities release from its liability to provide lights on the turnpike. The petitioner agrees, when the sum first mentioned has been paid to it "to discontinue the operation of its street railway line and to cancel, terminate, surrender, vacate, and abandon the franchises heretofore granted by the towns of Framingham, Natick and Wellesley, and the city of Newton, rights of way and location in said Worcester Turnpike, or however it may be locally known or designated," and to remove promptly upon request the rails, ties, poles, wires and other equipment which the Commonwealth is to take out.

Stripped of incidentals and accessories, the contract is, in essence, one by which the Commonwealth by payment of a large sum of money buys out the petitioner's rights in its street locations. The department of public works had no authority to bind the Commonwealth by a contract of this kind. We think this will clearly appear from an examination into the nature of street railway location rights in this Commonwealth and into the scope of the powers of the department with respect to them.

From the very beginning locations for street railways have been granted whenever the public interest required, by public authority for an unlimited period of time, but subject always to revocation without compensation by the particular authority as the particular manner prescribed by law when further continuance was no longer compatible with the public interest. Street railways devote their capital investment to a public use which they are bound to regard and to serve. They pay no money for their street locations and they acquire by them no property rights in land and no easements in the streets. They are allowed to come, are regulated while in operation, and are required to depart, not as a matter of trade or contract, but always as a result of some particular determination upon consideration by all authorized board as to the public necessity and convenience of the service at the particular time and place. The procedure might be described as quasi judicial and is not merely a matter of public business administration. The issue is determined broadly from the standpoint of the public interest in the service and not from the standpoint either of payment for the right or of reimbursement for its loss. Although these propositions have not been stated elsewhere in precisely this form, they are nevertheless clear general deductions from the following statutes and decisions: St. 1864, c. 229, Sections 14, 15, 16, 17, 19, 22, 24. G. L. (Ter. Ed.) c. 161, Sections 7, 40, 70, 71, 72, 73, 74, 75, 77 (as amended by St. 1934, c. 310, Section 1), 82, 84, 85, 86 (as amended by St. 1934, c. 310, Section 2), and 87. Commonwealth v. Temple, 14 Gray, 69, 76. Cambridge v. Cambridge Railroad, 10 Allen, 50, 57-58. Union Railway v. Mayor & Aldermen of Cambridge, 11 Allen, 287, 291-294. Middlesex Railroad v. Wakefield, 103 Mass. 261, 263. Medford & Charlestown Railroad v. Somerville, 111 Mass. 232 . Attorney General v. Metropolitan Railroad, 125 Mass. 515 , 517. Springfield v. Springfield Street Railway, 182 Mass. 41 , 47-49. Selectmen of Amesbury v. Citizens Electric Street Railway, 199 Mass. 394 . Connecticut Valley Street Railway v. Northampton, 213 Mass. 54 , 63-64. Sawin v. Connecticut Valley Street Railway, 213 Mass. 103 , 107...