Attorney Gen. v. Boston & A.R. Co.

• Decision Date: 03 November 1893
• Citation: 160 Mass. 62,35 N.E. 252
• Parties: ATTORNEY GENERAL v. BOSTON & A.R. CO. SAME v. OLD COLONY R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 62

35 N.E. 252

ATTORNEY GENERAL

v.BOSTON & A.R. CO.

SAME

v.OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 3, 1893.

Report from supreme judicial court, Suffolk county; John Lathrop, Judge.

Petitions by the attorney general against the Boston & Albany Railroad Company and the Old Colony Railroad Company to compel said companies to comply with St.1892, c. 389, requiring railroad companies to issue mileage tickets, and to receive those of other roads in payment of fare. Reported for the consideration of the full court. Petitions dismissed.

The petitions were in the following form:

“Albert E. Pillsbury, attorney general, in behalf of the commonwealth, informs the court that the Old Colony (or the Boston & Albany) Railroad Company is a railroad corporation established under the laws of the commonwealth, and operating a railroad therein; and that it is required by a law of the commonwealth, being chapter 389 of the Acts of the year 1892, to provide and have on sale for twenty dollars, and to sell to all persons applying therefor, mileage tickets for passenger transportation representing one thousand miles; and to redeem all such tickets, or any part thereof, upon presentation by any other railroad corporation; and to accept and receive from all persons for fare and passage over its own lines all such tickets issued by any other railroad corporation operating within the commonwealth, as therein prescribed. The defendant, though duly demanded, willfully and wrongfully neglects and refuses to comply in any particular with the requirements of the law as hereinabove set forth, which willful and wrongful neglect and refusal has continued from the taking effect of the law until the present time, and declares its purpose and determination not to comply therewith; which conduct is a violation of the law, and of the public right thereunder, for which there is no adequate remedy except by this proceeding. Wherefore the informant prays that the defendant be required and compelled, by writ of mandamus or other appropriate process, to provide and sell such mileage tickets to all persons applying therefor, and to redeem all such tickets, or any part thereof, on presentation by any other railroad corporation, and to accept and receive from all persons for fare and passage upon all its own lines all such tickets issued by any other railroad corporation operating within the commonwealth, and in all particulars to comply with the requirements of the law as therein set forth, and for such other orders in the premises as justice may require.”

The Attorney General, pro se.

J.H. Benton, Jr., for defendant Old Colony R. Co.

S. Hoar and W. Hudson, for defendant Boston & A.R. Co.

FIELD, C.J.

The brief for the Old Colony Railroad Company raises the questions whether the attorney general has any right to bring the informations, and whether the court has any jurisdiction over the proceedings. It is said that St.1892, c. 389, does not give the court equity jurisdiction to enforce its provisions, but we do not regard these informations as informations in equity. They are rather petitions for a writ of mandamus. See Pub.St. c. 186, § 13. It concerns the public, or an indefinite portion of the public, whether railroad corporations not exempted or excluded by the railroad commissioners shall obey St.1892, c. 389, and therefore we think that the attorney general as representing the public can properly institute these proceedings. Attorney General v. Boston, 123 Mass. 460.

At the hearing of the petition against the Old Colony Railroad Company the presiding justice excluded evidence against its objection “tending to prove the allegation of fact in the third, seventh, and eighth paragraphs of its answer.” These paragraphs are as follows: “Third. The railroads thus operated by it [the defendant] are in the states of Massachusetts and Rhode Island, and form connecting and continuous lines of interstate transportation and travel, and the regulation of the rates for and the conduct of passenger transportation thereon in this state substantially affect the rates for and the conduct of said interstate transportation thereon.” “Seventh. It says that there are railroad corporations operating railroads in the commonwealth that are not pecuniarily responsible for the redemption and payment of tickets which may be issued by them under chapter 389 of the Acts of the year 1892. Eighth. It says that chapter 389 of the Acts of the year 1892, referred to in said information, is a reduction of its fares and tolls for passenger transportation established by its directors, and of its earnings therefrom, contrary to the provisions of its charter, and is not a revision or alteration of its fares and tolls in the manner prescribed thereby, or by the general law relating to railroad corporations.”

St.1892, c. 389, can, we think, be construed as relating only to fares for the transportation of passengers from one point to another within the commonwealth; and if, under the existing regulations of the railroad company, there may be some difficulty in applying the law when a passenger intends to proceed from or to a point within the commonwealth to or from a point outside of the commonwealth, we do not see that this difficulty is inherent in the subject, or that by proper regulations the fares of passengers for transportation within the commonwealth cannot be paid for by mileage tickets, although the passengers are traveling to or from a place beyond the limits of the commonwealth. It is no sufficient objection to the statute that it may incidentally affect commerce between the states, if it does not attempt to regulate such commerce. See Louisville, N.O. & T. Ry. Co. v. State of Mississippi, 133 U.S. 587,10 Sup.Ct.Rep. 348.

The averments of the seventh paragraph relate to a possibility, rather than a fact, because it is not alleged that any railroad corporationswhich are not pecuniarily responsible have issued any mileage tickets under St.1892, c. 389, or that all such corporations have not been excluded from the provisions of the statute by the railroad commissioners. It is, in effect, an argument by way of an example of what might happen if one railroad company is required to transport passengers on the credit of another. The constitutionality of the statute cannot depend upon the solvency or insolvency of any particular railroad company at any particular time.

The averments of the eighth paragraph are not to the effect that St.1892, c. 389, will, if carried into effect, operate to reduce the fares for passenger transportation below what is reasonable, but only that the statute will cause a reduction contrary to the provisions of the charter of the defendant. The Old Colony Railroad Company is a corporation in this commonwealth and in the state of Rhode Island, formed by the union of various railroad corporations chartered by this commonwealth or by the state of Rhode Island, and is also the lessee of the Boston & Providence Railroad Corporation and of other railroad corporations. The earliest charter of any of the railroads leased is that of the Boston & Providence Railroad Corporation, which was approved June 22, 1831. The earliest charter of any of the railroads which make up this defendant corporation is that of the Taunton Branch Railroad Corporation, which was approved April 7, 1835, being St.1835, c. 131. The fourth section of this last-named statute contains the provision “that the legislature shall not at any time so reduce the tolls and their profits as to produce less than ten per cent. per annum upon the capital stock paid as aforesaid without the consent of said corporation.” The charters of other railroads which have been united to form the Old Colony Railroad Company contain similar provisions. These charters also grant to the corporations the right to take tolls at such rates as may be established by the directors. Similar provisions were enacted in the Revised Statutes, (Rev.St. c. 39, § 83,) and in the General Statutes, (Gen.St. c. 63, § 112.) St.1870, c. 325, § 1, repealed Gen.St. c. 63, § 112, and provided as follows: “Any railroad corporation may establish for its sole benefit, fares, tolls and charges, upon all passengers and property, conveyed or transported on its railroad, at such rates as may be determined by the directors thereof, and may from time to time by its directors regulate the use of its road: provided, that such rates of fares, tolls and charges, and regulations shall at all times be subject to revision and alteration by the legislature, or such officers or persons as the legislature may appoint for the purpose, anything in the charter of any such railroad corporation to the contrary notwithstanding.” St.1874, c. 372, § 4, is as follows: “Railroad corporations heretofore established in this commonwealth, whether by special act or in conformity with the provisions of the general law passed in the year one thousand eight hundred and seventy-two, shall have the powers and privileges and be subject to the duties, liabilities, restrictions and other provisions contained in this act; which, so far as inconsistent with charters granted since the eleventh day of March, one thousand eight hundred and thirty-one, shall be deemed and taken to be in alteration and amendment thereof: provided, that nothing herein contained shall be construed to impair the validity of any special power heretofore conferred by charter or other special act upon any particular railroad corporation which has already exercised such power or to prevent the continued exercise thereof, conformably, so far as may be, to the provisions of this act; nor shall anything herein contained affect any act done or any right accruing, accrued or established, or any proceedings, doings or acts ratified or confirmed, or any suit or proceeding had or commenced in any case before the act takes effect,” etc. Section 179 of this statute is...