Boston Elevated Railway Company v. Commonwealth
| Decision Date | 08 January 1942 |
| Citation | 310 Mass. 528,39 N.E.2d 87 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | BOSTON ELEVATED RAILWAY COMPANY v. COMMONWEALTH& others. |
May 14, 1940.
Present: FIELD, C.
J., DONAHUE, DOLAN COX, & RONAN, JJ.
Boston Elevated Railway Company. Street Railway, Location. Jurisdiction, By consent or waiver, Justiciable question, Determination of "just cause" for legislative action. Constitutional Law, Separation of powers of government, Public utilities Public rights and interests, Police power, Obligation of contracts, Due process of law, Waiver of constitutional rights, Separable portions of statute. Contract, What constitutes, Validity, Construction, Performance and breach Waiver, With Commonwealth, Street railway location, Condition subsequent, Operation of Boston Elevated Railway. Equity Jurisdiction, Determination of "just cause" for legislative action, Forfeiture of franchise. Waiver. Way Public: street railway location. Easement. License. Equity Pleading and Practice, Waiver. Commonwealth, Contracts. Public Officer. Agency, What constitutes, Scope of authority or employment. General Court. Words, "Locations," "Just cause," "Police power," "Property," "Revocation," "Forfeiture."
Jurisdiction of the Supreme Judicial Court to determine, upon a petition in equity by the Boston Elevated Railway Company under Section 2 of St.
1939, c. 482, whether there was "just cause for the revocation and declaration of forfeiture provided for in" Section 1, was beyond question: such question was justiciable.
The Boston Elevated Railway Company, by its resort to a petition in equity under Section 2 of St. 1939, c. 482, for a determination of the question, whether there was "just cause for the revocation and declaration of forfeiture provided for in" Section 1, waived all objections to such determination in that proceeding, but was not precluded from attacking the existence of legislative power to declare such a forfeiture and make such a revocation.
The only question presented to this court upon a reservation on the pleadings and a "stipulation of agreed facts" of a proceeding by the
Boston Elevated Railway Company under Section 2 of St. 1939, c. 482, was whether, on the facts appearing in the record, the revocation and declaration of forfeiture purporting to have been made under Section 1 impaired the constitutional rights of the company.
The action of the Legislature in making both the revocation and the declaration of forfeiture in Section 1 of St. 1939, c. 482, could not be annulled in a proceeding under Section 2 if either was constitutional.
By reason of the provisions of Sections 19, 21, of St. 1897, c. 500, and notwithstanding the provisions of Pub. Sts. c. 105, Section 3, the grant to the Boston Elevated Railway Company of the Atlantic Avenue location became, upon construction within the time specified, a contract binding the Commonwealth not to revoke the location at mere pleasure of the
Legislature without payment of compensation; and the making of such a contract was within the power of the Legislature.
Discussion by FIELD, C.J., of the nature of the police power and of the scope of its exercise.
The provision of St. 1939, c. 482, Section 1, purporting to revoke without payment of compensation the Atlantic Avenue location granted to the
Boston Elevated Railway Company by St. 1894, c. 548, and St. 1897, c. 500, was void as impairing the obligation of a contract in violation of art. 1, Section 10, of the Federal Constitution and as interfering with property of the company in violation of the Fourteenth Amendment thereto and of art. 10 of the Declaration of Rights of the Commonwealth: and it could not be sustained as an exercise of the police power under conditions existing at the time of its enactment.
The provisions of St. 1939, c. 482, Section 1, relating to a declaration of forfeiture and to revocation are not so dependent upon each other that the declaration of forfeiture cannot stand upon the revocation being adjudged unconstitutional.
It was within the power of the Legislature to prescribe a tribunal, and a proceeding other than quo warranto, in which the function, strictly judicial, of determining whether an elevated railway company had forfeited its location for breach of condition in the statutory grant thereof might be exercised: Section 2 of St. 1939, c. 482, was a proper exercise of that power, and Section 1 showed that the Commonwealth did not waive such breach but insisted upon the forfeiture resulting therefrom. Notwithstanding the provisions of the grant of location of the Atlantic
Avenue location to the Boston Elevated Railway Company in substance preventing revocation of the location by the Commonwealth except upon payment of compensation and except in case of failure of the company to construct a railway thereon and the absence of an express condition respecting forfeiture, the grant and contract were subject to an implied condition subsequent that the location might become forfeited if it was not used for the purpose for which it was granted.
Forfeiture of a location for an elevated railway for breach of an implied condition of the grant of the location that it should be used for the purpose for which it was granted was not unconstitutional as impairing the obligation of a contract or as depriving the company of its property without due process of law or without compensation. Neither the fact that the Atlantic Avenue structure of the Boston Elevated
Railway Company had cost the company a large amount of money: nor the fact that there had been further large expenditures for damages paid to private persons on account of additional servitude upon properties adjoining the structure; nor the fact that part of the location was over private lands, precluded the implication of a condition that the location was to be used for the purpose for which it was granted or the enforcement of that condition by forfeiture of the location for a material breach thereof.
It was an implied condition of the grant to the Boston Elevated Railway
Company of the Atlantic Avenue location that, after construction within the specified time, there should be continuous operation of passenger service; and a determination to cease to operate such service shown by agreed facts to be for reasons of economy and for an indefinite period and followed by actual cessation for more than ten months warranted a finding of a breach of that condition resulting in a forfeiture of the location, although in the circumstances the structure was used for electric cables and air pipe lines in connection with the company's other railway operations, and although, if left standing, it might be used as an alternative route for passenger service if operation on its tunnel route were interrupted, and although some undetermined circumstance in the future might make the structure a necessary element in furnishing rapid transit service to the community. By the provisions of the contract made between the Boston Elevated Railway
Company and the Commonwealth by the Public Control Act, as set out in
Spec. St.
1918, c. 159; St. 1931, c. 333; St. 1935, c. 99, the title to the property remained in the company, but its management and operation were placed in the Public Trustees, who, although acting as public officers for the carrying out of a public purpose, act by authority of the company and in its behalf; and their acts within the scope of their authority are to be regarded as the acts of the company. It was within the scope of the authority of the Public Trustees of the
Boston Elevated Railway Company under the Public Control Act to discontinue in behalf of the company the use of the Atlantic Avenue location for the transportation of passengers, although thereby the location was forfeited. Forfeiture of the Atlantic Avenue location of the Boston Elevated Railway
Company by the Public Trustees' ceasing to operate passenger service thereon would not preclude compliance with the provisions of the Public
Control Act for ultimate reversion to the company of control of its system. No waiver by the Commonwealth of the implied condition of the grant of the
Atlantic Avenue location of the Boston Elevated Railway Company, that it be used for the purpose for which it was granted, was expressed or implied in the Public Control Act. Forfeiture of the Atlantic Avenue location of the Boston Elevated Railway
Company for failure to operate passenger service thereon extended to the entire location including that on private lands.
PETITION, filed in the Supreme Judicial Court for the county of Suffolk on September 8, 1939.
The case was reserved by Cox, J.
R. H. Holt, (J.
S. Dickey with him,) for the plaintiff.
E. O. Proctor, Assistant Attorney General, for the Commonwealth.
R. H. Hopkins, Assistant Corporation Counsel, (H.
Freed, Assistant Corporation Counsel, with him,) for the city of Boston and others.
W. B. Downey, (C.
B. Gleason with him,) for Trustees of the Boston Elevated Railway Company.
This is a petition in equity filed in this court under the provisions of St. 1939, c. 482, by the Boston Elevated Railway Company (herein referred to as the company) by its directors against the Commonwealth, the city of Boston, the officers of the city of Boston constituting the transit department thereof (herein referred to as the transit department), and the board of trustees of the company. The city of Boston and the officers thereof constituting its transit department filed an answer in which the Commonwealth joined. The board of trustees of the company also filed an answer. The case was reserved by a single justice of this court -- without decision by him -- "upon the pleadings and a stipulation of...
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