Boston Elevated Ry. Co. v. Commonwealth

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtFIELD
Citation39 N.E.2d 87,310 Mass. 528
Decision Date08 January 1942
PartiesBOSTON ELEVATED RY. CO. v. COMMONWEALTH et al.

310 Mass. 528
39 N.E.2d 87

BOSTON ELEVATED RY. CO.
v.
COMMONWEALTH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1942.


Case reserved from Supreme Judicial Court; Suffolk County.

Original petition by the Boston Elevated Railway Company against the Commonwealth of Massachusetts and others for a determination that there exists no just cause for the revocation and declaration of forfeiture of the right of the company to construct, maintain and operate its elevated railway structure on a particular location, and that the statutory provisions declaring forfeiture are void and of no effect, and for injunctive and general relief. The case was reserved by a single justice of the Supreme Judicial Court without decision by him upon the pleadings and a stipulation of agreed facts for the consideration and determination of the full court.

Decree in accordance with opinion.

[39 N.E.2d 96]

Before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

R. H. Holt and J. S. Dickey, both of Boston, for petitioner.

[39 N.E.2d 97]


E. O. Proctor, Asst. Atty. Gen., for the Commonwealth.


R. H. Hopkins, Asst. Corp. counsel, and H. Freed, Asst. Corp. counsel, both of Boston, for City of Boston.


W. B. Downey and C. B. Gleason, both of Boston, for Trustees of Boston Elevated Ry.
Co.

FIELD, Chief Justice.

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 agreed facts for the consideration and determination of the Full Court.’ G.L.(Ter.Ed.) c. 214, § 31.

Statute 1939, c. 482, §§ 1, 2, 3, are as follows:

‘Section 1. The right of the Boston Elevated Railway Company, hereinafter called the company, to construct, maintain and operate its elevated railway structure located in or upon Commercial street, Atlantic avenue, Beach street and Harrison avenue and public or private lands or ways in the city of Boston between cross girder number 164 over 201 east of Keany square and cross girders numbers 1E and 1W near Washington street, hereinafter called the structure, is hereby declared forfeited, said structure no longer being operated in the public service for the purpose for which the franchise of the company to operate an elevated structure on the said location was granted, and constituting a nuisance in the public highway and unreasonably interfering with the enjoyment and use of said highway to the detriment of the public health and safety. The said location and the right of the company to construct, maintain and operate an elevated railway structure thereon are hereby revoked.

‘Section 2. The company, acting by its board of directors, may, within thirty days of the effective date of this act, file a petition in equity in the supreme judicial court to determine whether there is just cause for the revocation and declaration of forfeiture provided for in section one. The supreme judicial court shall have jurisdiction in equity to determine the issues raised in such petition and to affirm, modify, or annul the said revocation and declaration of forfeiture, and service of an order of notice upon the state secretary shall be sufficient. Upon the filing of such a petition the court may stay any action under the following sections of this act until such time as the issues raised in such petition have been finally determined, or for any shorter period as justice may require. If a jury trial shall be claimed by the company the court may transfer said cause to the superior court for trial.

‘Section 3. Within thirty days after the expiration of the period within which a petition under the preceding section may be filed, without the filing of any such petition, or within thirty days after the final disposition of proceedings upon such a petition dismissing it or otherwise sustaining the forfeiture and revocation provided for in section one, the company shall proceed without delay at its own expense to remove said structure above its foundations and to put the surface of the public ways disturbed by such removal into as good condition as the adjacent surface of said ways, and to restore to good condition sidewalks and buildings affected by such removal. If the company fails to begin the removal, as herein directed, or to complete it within one year thereafter, the transit department of the city of Boston shall remove the structure at the expense of the company, and such expense shall be recoverable from the company in an action at law.’

Section 4 of the statute prescribes the manner in which the transit department of the city of Boston shall carry out the duties imposed upon it by said § 3, and includes provisions that the ‘transit department may sell as salvage or otherwise the structure and any appurtenances thereof,’ that the ‘proceeds of such sales shall be used to pay the cost of removal or shall be credited against such cost,’ and that in ‘the event that such proceeds exceed such cost, the excess shall be turned over to the treasurer of said city and credited to the Special Account, Sales of City Property as carried on the books of said city.’

[39 N.E.2d 98]

The prayers of the petition, other than a prayer for notice and for a temporary stay of action under St.1939, c. 482, §§ 3, 4, are (a) that the court ‘determine that there exists no just cause for the revocation and declaration of forfeiture contained in Section 1 of said chapter 482 of the Acts of 1939, and that the provisions thereof are void and of no effect,’ (b) that the court ‘issue a permanent injunction enjoining the Public Trustees from proceeding to remove said Atlantic Avenue elevated structure, and also enjoining the Transit Department of the City of Boston from removing or attempting to remove said structure at the expense of the Company,’ and (c) for general relief.

First. No question is raised as to the jurisdiction of this court to entertain the petition. St.1939, c. 482, § 2, provides expressly that the company may ‘file a petition in equity in the supreme judicial court to determine whether there is just cause for the revocation and declaration of forfeiture provided for in section one,’ and expressly confers upon the Supreme Judicial Court ‘jurisdiction in equity to determine the issues raised in such petition and to affirm, modify, or annul the said revocation and declaration of forfeiture.’ The company by filing the petition under the statute waived all objections to the determination in the proceeding authorized thereby of the issues described by the statute as the issues to be determined in such proceeding. Since the company has taken advantage of the protection given by the statute by seeking review of legislative action in the statutory proceeding, it can enjoy such protection only upon the terms set out in the statute. In re Stevens, Landowner, 228 Mass. 368, 373, 374, 117 N.E. 588;Bogigian v. Commissioner of Corporations & Taxation, 248 Mass. 545, 547, 143 N.E. 671;Barnes v. Springfield, 268 Mass. 497, 503, 168 N.E. 78. And the respondents make no objection to the determination of the issues in this proceeding.

Moreover, there is no sound basis for objection to the jurisdiction of the court to determine the issues described in the statute, a matter that it is the duty of the court to consider on its own motion. See New York Life Ins. Co. v. Hardison, 199 Mass. 190, 196, 197, 85 N.E. 410,127 Am.St.Rep. 478. The issues, under the statute properly interpreted, that are to be determined by the court are proper for judicial determination. The statute is not to be interpreted as conferring upon the court jurisdiction to determine any question of expediency, of legislative or executive policy. Such a question cannot be turned over to the courts. Art. 30 of the Declaration of Rights of the Constitution of the Commonwealth. Selectmen of Milton v. Justice of District Court of East Norfolk, 286 Mass. 1, 4, 189 N.E. 607;In re Opinion of the Justices, 300 Mass. 596, 600, 14 N.E.2d 465, 118 A.L.R. 166. But the fundamental question to be determined by the court, as provided by the statute, is whether as matter of law ‘there is just cause for the revocation and declaration of forfeiture’ by legislative action. This question, in substance a single issue on the merits of the case, is ‘cognizable by the courts in the exercise of judicial attributes' when properly raised between litigants. See Attorney General v. Pelletier, 240 Mass. 264, 300, 134 N.E. 407;In re Opinion of the Justices, 300 Mass. 596, 600, 14 N.E.2d 465, 118 A.L.R. 166;Attorney General v. Secretary of Commonwealth, 306 Mass. 25, 28, 29, 27 N.E.2d 265. See, also, In re Janvrin, Petitioner, 174 Mass. 514, 55 N.E. 381,47 L.R.A. 319;American Employers' Ins. Co. v. Commissioner of Insurance, 298 Mass. 161, 169, 170, 10 N.E.2d 76. In the statutory proceeding begun by the company this issue is raised between litigants. And the statute expressly or by necessary implication confers jurisdiction upon the court to enter a decree giving effect to its decision upon this issue in some form that is not beyond the scope of the jurisdiction in equity that may be conferred upon the court by statute. Compare Fall River v. Public Service Commissioners, 228 Mass. 575, 117 N.E. 915;Donham v. Public Service Commissioners, 232 Mass. 309, 122 N.E. 397;New England Telephone & Telegraph Co. v. Department of Public Utilities 262 Mass. 137, 140, 152, 159 N.E. 743, 56 A.L.R....

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49 practice notes
  • United States v. Sterling Islands, Inc., No. CR 18-4176 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 20, 2019
    ...obliges generally to acts or forebearances of a class; constitution or constitutional provision, Boston Elevated Ry. Co. v. Commonwealth, 310 Mass. 528, 39 N.E.2d. 87, 109 ; Wickham v. Grand River Dam Authority, 189 Okl. 540, 118 P.2d 640, 643 ; county ordinance, People v. Ziady, 8 Cal.2d 1......
  • Boston Elevated Ry. Co. v. Metro. Transit Auth.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 4, 1949
    ...citizen. City of Boston v. Treasurer & Receiver General, 237 Mass. 403, 413, 130 N.E. 390;Boston Elevated Railway v. Commonwealth, 310 Mass. 528, 577, 39 N.E.2d 87;Auditor of the Commonwealth v. Trustees of Boston Elevated Railway, 312 Mass. 74, 77, 43 N.E.2d 124;Attorney General v. Trustee......
  • Crawford v. Blue, CIVIL ACTION NO. 14–13042–WGY
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 21, 2017
    ...Smith v. Commissioner of Transitional Assistance, 431 Mass. 638, 651, 729 N.E.2d 627 (2000) ; Boston Elevated Ry. Co. v. Commonwealth, 310 Mass. 528, 543, 39 N.E.2d 87 (1942).So here. Once the Registrar has evaluated her appellate options (this is, after all, a close case, supra at section ......
  • Opinion of the Justices
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 19, 1956
    ...powers of revocation and amendment. The corporation with which the court was concerned in Boston Elevated Railway v. Commonwealth, 310 Mass. 528, at pages 548-551, 39 N.E.2d 87 (involving a statute antedating art. 59 of the Amendments), and the proposed corporation in Opinion of the Justice......
  • Request a trial to view additional results
44 cases
  • United States v. Sterling Islands, Inc., No. CR 18-4176 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 20, 2019
    ...obliges generally to acts or forebearances of a class; constitution or constitutional provision, Boston Elevated Ry. Co. v. Commonwealth, 310 Mass. 528, 39 N.E.2d. 87, 109 ; Wickham v. Grand River Dam Authority, 189 Okl. 540, 118 P.2d 640, 643 ; county ordinance, People v. Ziady, 8 Cal.2d 1......
  • Boston Elevated Ry. Co. v. Metro. Transit Auth.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 4, 1949
    ...citizen. City of Boston v. Treasurer & Receiver General, 237 Mass. 403, 413, 130 N.E. 390;Boston Elevated Railway v. Commonwealth, 310 Mass. 528, 577, 39 N.E.2d 87;Auditor of the Commonwealth v. Trustees of Boston Elevated Railway, 312 Mass. 74, 77, 43 N.E.2d 124;Attorney General v. Trustee......
  • Crawford v. Blue, CIVIL ACTION NO. 14–13042–WGY
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 21, 2017
    ...Smith v. Commissioner of Transitional Assistance, 431 Mass. 638, 651, 729 N.E.2d 627 (2000) ; Boston Elevated Ry. Co. v. Commonwealth, 310 Mass. 528, 543, 39 N.E.2d 87 (1942).So here. Once the Registrar has evaluated her appellate options (this is, after all, a close case, supra at section ......
  • Opinion of the Justices
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 19, 1956
    ...powers of revocation and amendment. The corporation with which the court was concerned in Boston Elevated Railway v. Commonwealth, 310 Mass. 528, at pages 548-551, 39 N.E.2d 87 (involving a statute antedating art. 59 of the Amendments), and the proposed corporation in Opinion of the Justice......
  • Request a trial to view additional results

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