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

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

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...