Boston Edison Co. v. Board of Selectmen of Concord

• Decision Date: 19 December 1968
• Citation: 242 N.E.2d 868,355 Mass. 79
• Parties: BOSTON EDISON COMPANY v. BOARD OF SELECTMEN OF CONCORD (and two companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 868

242 N.E.2d 868

355 Mass. 79

BOSTON EDISON COMPANY v. BOARD OF SELECTMEN OF CONCORD (and two companion cases

¹

).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 10, 1968.

Decided Dec. 19, 1968.

Donald R. Grant, Boston, for Boston Edison Co.

Philip B. Buzzell, Boston, for Bd. of Selectmen of Sudbury.

Will J. Bangs, Boston, for Bd. of Selectmen of Concord.

Thomas F. Myles, Cambridge, for Bd. of Selectmen of Wayland, joined in a brief.

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

REARDON, Justice.

These are closely similar petitions for writs of certiorari brought by Boston Edison Company (Edison) to quash decisions and votes by the boards of selectmen of Concord, Sudbury and Wayland which denied Edison permission to cross certain public ways in those respective towns with its high tension wires. Each of the petitions was reserved and reported by the single justice. This case is the third in a sequence which commenced in 1960 with the efforts of Edison to build a 7.48 mile, 115,000 volt line through the three towns. We are confronted with a cretain number of procedural points and a somewhat difficult issue of statutory construction. There have come to the full court numerous exhibits, as well as the transcripts of hearings before the boards of selectmen upon the petitions by Edison for the requisite permissions to cross the public ways with its wires. The basic facts are largely uncontroverted and may be stated as follows.

The proposed overhead lines would run from the Edison substation in Sudbury through the three towns to a proposed new substation in Maynard. The new lines, designed for operation at 115,000 volts, will consist of three separate and appropriate circuits to be constructed beginning in 1969. Some fifteen overhead wires will be suspended by conductors from the cross-arms of wood poles. It is proposed that no pole will be located within the limits of any public way and that no part of any wire will be lower than thirty feet above the surface of each way. The poles will range in height from fifty-five to ninety-five feet. The wires will in no instance run along a public way and will generally cross the public ways at right angles. Edison has not yet made requests of State and Federal authorities to cross certain lands and reservations under their jurisdictions. There has been a unanimity of opposition from the three towns on this project which was clearly made manifest in the hearings.

The issues before us are, first, whether certiorari is available to correct the action of the respective boards of selectmen in their refusal to grant Edison permission to cross public ways and, second, if certiorari is available to Edison whether there was sufficient evidence to support the denial by the selectmen of Edison's request for the crossing rights.

I. The availability of certiorari.

The permissions which Edison sought and was refused are authorized under G.L. c. 166, §§ 21 and 22. Since electricity is a State regulated public utility under G.L. cc. 164 and 166, certain permissions must be obtained prior to the erection of power lines. There is no particular order in which these permissions are to be obtained. Town of Sudbury v. Department of Pub. Util., 351 Mass. 214, 224, 218 N.E.2d 415 (the second Sudbury case). See Town of Sudbury v. Department of Pub. Util., 343 Mass. 428, 179 N.E.2d 263 (the first Sudbury case). Section 21 of c. 166 provides that '(a) company incorporated for the transmission of * * * electricity * * * may * * * construct lines for such transmission * * * across the public ways * * * but such company shall not incommode the public use of public ways or endanger or interrupt navigation.' Section 22 required the company (Edison) to petition the selectmen of the several communities where the street crossings were contemplated. Under that section public hearings were held after which the selectmen were empowered 'by order (to) grant * * * a location for such line.' It is their refusal to do so that Edison seeks to quash by certiorari.

Although certiorari is provided for by G.L. c. 249, § 4, its origins are in the common law, and the requirements which give it life were stated in Swan v. Justices of Superior Court, 222 Mass. 542, 544, 111 N.E. 386, 387. Speaking of the writ, the court said, 'Its common purpose is the beneficent one of enabling a party who has no remedy by appeal, exceptions, or other mode of correcting errors of law committed against his rights in a proceeding judicial or quasi judicial, to bring the true record, properly extended so as to show the principles of decision, before a higher court for examination as to material mistakes of law. Its appropriate function is to relieve aggrieved parties from the injustice arising from errors of law committed in proceedings affecting their justiciable rights when no other means of relief are open. It always has been recognized as a highly remedial salutary procedure, founded upon a sense of justice, to relieve against wrongs otherwise irremediable.' See Gifford v. Commissioner of Pub. Health, 328 Mass. 608, 619, 105 N.E.2d 476, and cases cited. Therefore, the requisite elements for availability of certiorari are (1) a judicial or quasi judicial proceeding; (2) a lack of all other reasonably adequate remedies; and (3) a substantial injury or injustice arising from from the proceeding under review.

A. Were the hearings before the selectmen either judicial or quasi judicial?

In the hearings on the Edison petitions the selectmen in each instance under the statute were called upon to exercise judgment and discretion. In each of the three towns hearings were held where opposing points of view were presented. We may refer by analogy to the State Administrative Procedure Act, G.L. c. 30A, which, while it does not apply to actions by towns, defines in § 1 'an adjudicatory proceeding' as 'a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing.' See Cambridge v. Board of Railroad Comm'rs 153 Mass. 161, 169--170, 26 N.E. 241 (the order of the Board of Railroad Commissioners for a city to construct an overpass was quasi judicial); NEW YORK CENT. R.R. CO., V. DEPARTMENT OF PUB. WORKS, MASS. , 237 N.E.2D 283^A (a decision not to allow a requested grade crossing was in an adjudicatory proceeding). That the selectmen may exercise some ministerial function does not mean that their proceedings concerning the Edison petitions are not adjudicatory. Sudbury and Wayland rely most heavily on Locke v. Selectmen of Lexington, 122 Mass. 290, a case which is not persuasive. There the court said, 'The selectmen of a town are not a court, and, independently of the St. of 1873, c. 214, exercise no judicial functions which could be revised by writ of certiorari; but only powers which are purely executive or ministerial * * *.' The exception cited by the court, however, is a statute which provides for a hearing similar to that provided for in c. 166, § 22, and the case would seem to support the position that the hearings before the selectmen were indeed in adjudicatory proceedings.

B. Has Edison exhausted its other remedies?

Certiorari lies only where the petitioner has exhausted his administrative remedies. Jordan Marsh Co. v. Labor Relations Comm., 312 Mass. 597, 45 N.E.2d 925. Saint Luke's Hosp. v. Labor Relations Comm., 320 Mass. 467, 469--470, 70 N.E.2d 10, and cases cited. Marshall v. Registrar of Motor Vehicles, 324 Mass. 468, 471, 87 N.E.2d 7. Edison argues that review by the Department of Public Utilities (Department) is foreclosed because the case does not fulfill the requirements of G.L. c. 166, § 28, where an electric company denied the right to cross public ways may apply to the Department. In such an instance the Department is empowered to overrule the selectmen if the utility has already been granted road crossings and has accepted them in a majority of the towns through which the lines may pass or in two adjoining municipalities. Otherwise the Department is powerless to overrule the selectmen. The towns do not assert that Edison has fulfilled the conditions of the statute but rather that it is only the Department which can decide after a hearing whether or not Edison has.

On this point the prevailing view in other jurisdictions is that where an administrative agency cannot afford relief resort to the agency is not required. See 2 Am.Jur.2d, Administrative Law, § 605. The futility apparent in the application of the statute makes such resort to the administrative agency unnecessary. United States v. Knox, 128 U.S. 230, 234, 9 S.Ct. 63, 32 L.Ed. 465. Carter v. City of Bluefield, 132 W.Va. 881, 892, 54 S.E.2d 747. This doctrine in our view should be applicable where a threshold question will render application to an administrative body futile, for reasons of judicial efficiency if for no others. There is little to be gained by forcing Edison to a § 28 proceeding where the Department obviously can afford no suitable relief.

C. Was substantial injury or injustice incurred by Edison by reason of the action of the selectmen? went without review?

Edison claims substantial injury, to which the towns reply that Edison has no 'private right' in the public ways--the use of which is a privilege and the revocation of which use gives rise to no injury. The argument of the towns in this regard is concerned with the distinction between 'right' and 'privilege,' which has been under attack in recent years. See Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439. Moreover, the Legislature acting under c. 166, § 21, which grants the rights in the public streets and a local board of selectmen which denies access to them are not the same. Therefore,...