Bd. of Survey of Arlington v. Bay State St. Ry. Co.

• Decision Date: 22 June 1916
• Parties: BOARD OF SURVEY OF ARLINGTON v. BAY STATE ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 463

113 N.E. 273

BOARD OF SURVEY OF ARLINGTON

v.BAY STATE ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 22, 1916.

Case Reserved from Supreme Judicial Court, Middlesex County.

Suit by Board of Survey of Arlington against Bay State Street Railway Company. Case reserved for full court. Bill dismissed.

Philip A. Hendrick, of Boston, for petitioner.

Jas. F. Jackson and Sheldon E. Wardwell, both of Boston, for defendant.

RUGG, C. J.

One of the clauses in the original location granted by the selectmen of the town of Arlington in 1897 to the Arlington & Winchester Street Railway Company, to whose rights, privileges and obligations the defendant has succeeded, was to the effect that:

‘The rate of fare shall not exceed five cents from any point in Arlington to any point in Arlington or Winchester, or from any point in Winchester to any point in Arlington, on all lines now or in the future controlled or operated by said company or by any company or system of which said road may in the future form a part.’

The defendant, under the authority of St. 1913, c. 784, §§ 17, 19, 20, 21, 22, and 29, proposes to raise the rate of fare above five cents, subject to the approval of the Public Service Commission. This suit is brought to enjoin such action by the railway company.

The location here in question having been an original location granted by the selectmen and accepted by the directors of the street railway company before St. 1898, c. 578, took effect, the regulation of fares by agreement as a condition in the grant of the location was within the power conferred by the then existing statute upon the selectmen, and bound the street railway company to the same extent as if inserted in a special charter of incorporation. Selectmen of Clinton v. Worcester Consolidated St. Ry., 199 Mass. 279, 85 ,N. E. 507;Selectmen of Westwood v. Dedham & Franklin St. Ry., 209 Mass. 213, 95 N. E. 81. In granting locations for street railways, boards of selectmen and boards of aldermen are public officers and not agents of their respective towns and cities. The state exerts its sovereign power through them as its instruments. Flood v. Leahy, 183 Mass. 232, 66 N. E. 787. The Legislature has the power, so far as concerns these public officers and the municipalities by whom they were elected, to change or abrogate the terms of such locations. Although phrased in the form of a contract and securing valuable financial obligations to the cities and towns, the power of the Legislature to modify to their loss such locations has been settled after great consideration and vigorous protest from the interested municipalities. Springfield v. Springfield Street Railway, 182 Mass. 41, 64 N. E. 577;Worcester v. Worcester Consolidated Street Railway, 182 Mass. 49, 64 N. E. 581; s. c. affirmed in 196 U. S. 539, 25 Sup. Ct. 327, 49 L. Ed. 591. See, also, Southern Wisconsin Railway v. Madison, 240 U. S. 457, 36 Sup. Ct. 400, 60 L. Ed. 739. Regulation of fares in this respect stands on no higher ground than requirements as to paving of streets. The paramount power of the Legislature over the subject of fares was recognized expressly in Selectmen of Clinton v. Worcester Consolidated St. Ry., 199 Mass. at page 288, 85 N. E. 507.

The question, therefore, is reduced to one of statutory interpretation. It is whether the general control over fares has been vested in the Public Service Commission by St. 1913, c. 784. That act marked a radical change in the policy of the Legislature in the regulation of street railways. It conferred upon the Public Service Commission far greater powers over the operation and accommodations to be provided by such common carriers than had been vested in any board by earlier acts. Summarily stated, it clothed the commission with full power to require safe, reasonable and adequate service to the public from all common carriers. The authority of the commission as to supervision and regulation in other respects is ample. It is manifest that such broad powers justly cannot be exercised to the extent conferred by the words used except when joined either with equally full power to regulate charges, rates and fares, or with freedom of action by the carrier in these respects, so as to enable the carrier to receive a fair return for the service required. This power expressly is conferred by section 22, which after subjecting the rates and fares actually charged or demanded to their supervision, enacts that whenever the commissionis of opinion ‘that the rates, fares or charges or any of them chargeable by any such common carrier are insufficient to yield reasonable compensation for the service rendered and are unjust and unreasonable, the commission shall determine the just and reasonable rates, fares and charges to be charged’ and shall fix the same by order binding upon the carrier. That these words were intended to be interpreted according to their full natural scope is obvious from the provision of section 29, to the effect that:

‘This act shall be deemed and construed as a remedial act and in enlargement and extension of all previous...