City Council of Salem v. Eastern Massachusetts St. Ry. Co.

• Decision Date: 27 November 1925
• Citation: 149 N.E. 671,254 Mass. 42
• Parties: CITY COUNCIL OF SALEM v. EASTERN MASSACHUSETTS ST. RY. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 42

149 N.E. 671

CITY COUNCIL OF SALEM

v.EASTERN MASSACHUSETTS ST. RY. CO. et al.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 27, 1925.

Report from Supreme Judicial Court, Essex County.

Petition by the City Council of Salem against the Eastern Massachusetts Street Railway Company and others to review order of Department of Public Utilities denying plaintiff's right to revoke, on ground of public necessity and convenience in use of street, location for track and curve granted to defendant named. Demurrer to petition was sustained by a single justice, and case reported to full court. Decree sustaining demurrer and dismissing bill ordered entered.

1. Street railroads k24(13)-Improper signatures in return waived by going to hearing on merits.

Where petition under G. L. c. 161, s 77, was filed with department of public utilities praying that order of city council be validated and approved, although petition was not signed by all members of council, it was defect of form which was waived by going to hearing on merits.

2. Street railroads k24(13)-Power to revoke location of street railway rests on ground of public necessity and convenience.

Power of city council to revoke location of street railway under G. L. c. 161, s 77, rests on ground that public necessity and convenience in the use of the way require it, and action of council thereon cannot be based on any other reason.

3. Street railroads k24(13)-Decision of department of public utilities as to fact question is conclusive.

Under G. L. c. 161, s 77, action of city council in revoking location for track granted to street railway is not final, but rests ultimately with the department of public utilities, whose decision on questions of fact is conclusive.

4. Street railroads k24(13)-Whether public necessity and convenienee require that location of street railway tracks be revoked presents issue of fact.

Whether public necessity and convenience in use of public way require that location shall be revoked presents issue of fact in which the department of public utilities may, in addition to necessity and convenience of people of the neighborhood or municipality, consider the general public in so far as it may be affected by proposed action.

5. Street railroads k65 1/2-Jurisdiction of courts to review ‘rulings' of state department or commission relates to rulings of law.

Under G. L. c. 161, s 142, giving to the Supreme Judicial Court and to superior court jurisdiction to review rulings of any state department or commission relative to street railways, jurisdiction relates to ‘rulings,’ which means rulings of law.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Ruling.]

6. Street railroads k24(13)-Legislative questions before department of public utilities not reviewable.

Question before the department of public utilities under G. L. c. 161, s 142, as to revocation of location of street railway in public way being legislative in character, judgment of department thereon, when exercised in good faith, is not open to review.

7. Street railroads k24(13)-Finding of department of public utilities held not reviewable.

On petition under G. L. c. 161, s 77, to department of public utilities to validate order of city council revoking location of street railway in street, finding of majority of members that approval of revocation should be denied on general grounds of public necessity and convenience is not open to review.

8. Street railroads k65 1/2-Jurisdiction to review findings of department of public utilities limited to determining whether decision contains erroneous rulings of law.

Jurisdiction of the Supreme Judicial Court to review findings of the department of public utilities, under G. L. c. 161, s 142, is limited to determining whether decisions of the department of public utilities contain erroneous rulings of law.

W. A. Pew, City Sol., of Salem, for petitioner.

J. J. Ronan, of Salem, and L. Goldberg, Asst. Atty. Gen., for respondents.

CROSBY, J.

On June 15, 1909, the board of aldermen of the city of Salem, on petition of the Boston & Northern Street Railway Company (the predecessor in title of the Eastern Massachusetts Street Railway Company), adopted an order permitting the company to build a track on Mason street, a public way in that city. On July 31, 1924, an order was passed by the city council which reads as follows.

‘That the public necessity and convenience in the use of Mason street, a public way in the city of Salem, requires that the location for a track and curve granted to the Boston & Northern Street Railway Company on June 15, 1909, * * * be revoked.’

Certain reasons for such revocation were set forth in the order. The company not assenting to the order of revocation, under G. L. c. 161, § 77, a petition was filed with the Department of Public Utilities praying that said order be validated and approved by the department after public notice and hearing. The petition was signed by the mayor of the city, the city solicitor, and also by the ‘City Council, By its Clerk J. Clifford Entwisle.’ It was not signed by any member of the city council. After a hearing on the petition a majority of the members of the department rendered a decision declining to approve the action of the city council in revoking the location in question, solely on the ground that public necessity and convenience did not require such revocation.

[1] The petition to the department was not properly signed; it was not the petition of the city council. It ought to have been signed by all of the members. However, as this was a defect of form which was waived by the respondent by going to a hearing on the merits, it is not fatal to the contention of the petitioner. Byfield v. Newton, 247 Mass. 46, 53, 141 N. E. 658.

A demurrer to the petition was sustained by a single justice of this court and the case reported by him to the full court.

[2][3][4] The right of the city council to revoke the location of the street railway company is governed by G. L. c. 161, § 77, and such action was authorized if it was found that public necessity and convenience in the use of the public way so required. But the statute expressly provides that ‘unless, within thirty days after such order of revocation, the company consents thereto in writing, such order shall not be valid until approved by the department...