Cape Cod S.S. Co. v. Selectmen of Provincetown

• Decision Date: 02 July 1936
• Parties: CAPE COD S. S. CO. et al. v. SELECTMEN OF PROVINCETOWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 65
3 N.E.2d 244

CAPE COD S. S. CO. et al.
v.
SELECTMEN OF PROVINCETOWN.

Supreme Judicial Court of Massachusetts, Suffolk.

July 2, 1936.

Report from Supreme Judicial Court, Suffolk County.

Mandamus proceeding by the Cape Code Steamship Company and seven others against the Selectmen of Provincetown. On report from Supreme Judicial Court for the county of Suffolk.

Peremptory writ of mandamus issued.

[3 N.E.2d 244]

T. H. Walsh, and J. J. Krohn, both of Boston, for petitioners.

J. A. Vitelli, of Provincetown, for respondents.

QUA, Justice.

Material facts disclosed by the agreed statement of facts are these: For the past thirty years, during the summer season, the corporate petitioner has operated passenger steamships between Boston and Provincetown, and for the past twenty-five years it has berthed its steamships at ‘Town Wharf,’ now so called, in Provincetown. There is at that town no other wharf with sufficient depth of water to dock these vessels. The individual

[3 N.E.2d 245]

petitioners are citizens and taxpayers in Provincetown. The individual respondents are the selectmen of that town. By St.1928, c. 253, the town was authorized to acquire the wharf then owned or leased by certain railroads, and to ‘maintain and operate said property as a wharf and public landing.’ Section 1. The statute further provided that the powers thereby conferred should ‘be exercised by the selectmen, who shall also have power to make rules and regulations governing the use of said wharf and public landing, subject, however, to such rules and regulations as the town may from time to time fix by vote.’ Section 2. The statute was to take effect upon acceptance by the town. At a town meeting held May 21, 1928, the town accepted the statute and appropriated the sum of $5,000 to acquire the wharf ‘as a Public Landing agreeably to chapter 253 of the Acts of 1928.’ Thereafter the railroads deeded the property to the town. It is agreed that the statute of 1928 was the authority under which this wharf was acquired by the town.

At a town meeting held February 10, 1936, the town voted to lease to the respondent Bay State Steamship Company for a term of five years ‘an exclusive berthing privilege at the Town Pier for passenger service.’ In pursuance of this vote the town, acting through two of the respondent selectmen, has delivered to the Bay State Steamship Company, in consideration of an annual rental of $3,000, a purported lease for a term of five years of ‘the exclusive right and privilege of occupying the end and that side of the Town Pier which has the greatest depth of water for the purpose of docking and otherwise carrying on the lessee's business in connection with its steamships plying to and from Provincetown.’ The lease contains a clause that ‘the lessee shall have the exclusive rights to occupy the demised premises and no boat or boats carrying passengers for hire shall be permitted to use any part of said Town Pier without the written permission...