City of Fall River v. Pub. Serv. Comm'n

• Decision Date: 08 December 1917
• Citation: 228 Mass. 575,117 N.E. 915
• Parties: CITY OF FALL RIVER et al. v. PUBLIC SERVICE COMMISSION et al. SAME v. BAY STATE ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 575

117 N.E. 915

CITY OF FALL RIVER et al.

v.PUBLIC SERVICE COMMISSION et al.

SAME

v.BAY STATE ST. RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk and Bristol.

Dec. 8, 1917.

Appeal from Supreme Judicial Court, Suffolk County.

Report from Supreme Judicial Court, Bristol County.

The first case was a petition by the City of Fall River against the Bay State Street Railway Company (successor of the Globe Street Railway Company), under St. 1913, c. 784, asking the court to review, annul, modify and amend certain rulings and orders of the Massachusetts Public Service Commission, entered March 6, 1917, by which the commission permitted the schedule filed by the Railway Company and referred to in its order to become effective at the end of a period fixed by the commission. The schedule of the company proposed to discontinue the sale of tickets on its line over the old Slade Ferry Bridge, at the rate of six for 25 cents as agreed to in a bound given by the Globe Street Railway Company, to the city before its sale to the Bay State Street Railway Company. A demurrer filed by defendant was sustained in the Supreme Judicial Court, and petitioner appealed. Decree affirmed.

The second case was an action of contract by the City of Fall River on the bond given by the Globe Street Railway Company, against its successor, to enforce the provisions of the bond as to the sale of tickets. In the superior court the court found for the defendant and reported the case to the Supreme Judicial Court. Judgment ordered to be entered for defendant.

The first case was brought in Suffolk county. The second case in Bristol county.

Arthur S. Phillips, of Fall River, for plaintiffs.

Currier, Young & Pillsbury, of Boston (S. H. Pillsbury and F. B. Greenhalge, both of Boston, of counsel), for defendants.

BRALEY, J.

[1][4] It appears among the terms of the grant of location to the Globe Street Railway Company, to whose franchises and obligations so far as involved in the cases at bar the defendant company has succeeded, that the company was ‘to construct, electrically equip and maintain its tracks * * * on Slade's Ferry Bridge * * * according to the plans on file,’ subject to the conditions that the company, its successors and assigns, ‘shall so long as its tracks continue to be on said * * * bridge keep in repair at its own expense all of the roadway of said bridge for its entire length to the satisfaction’ of the city engineer and the surveyor of highways, and shall furnish a bond ‘for the faithful fulfillment of the terms and conditions of this order.’ The order was passed October 21, 1895, and the bond having been given and approved, and the location having been accepted and continuously used as a part of its railway system, the company and its successors were bound to comply with this condition. Pub. Sts. c. 113, § 17; R. L. c. 112, § 11; Mayor and Aldermen of Worcester v. Worcester Cons. St. Ry., 192 Mass. 106, 113, 115, 78 N. E. 222. But as pointed out in Springfield v. Springfield St. Ry., 182 Mass. 41, 64 N. E. 577, the Legislature may modify or annul a location of this nature without violation of any constitutional provision. By St. 1898, c. 578, § 11, street railways were relieved ‘from all obligation thereafter to keep any portion of the surface material of streets, roads and bridges in repair, unless the obligation so to do had been imposed in a grant of an original location, which the statute defined to mean the first location granted to the company in the city or town as to whose streets, roads or bridges there might be a question.’ Worcester v. Worcester Cons. St. Ry., 182 Mass. 49, 52, 64 N. E. 581, 582. The agreed facts show that the location in question was not the first or original location, and neither the company nor its successor was required after the passage of the statute to reimburse the plaintiff city for expenditures in making repairs. The city however contends that St. 1911, c. 552, superseded St. [228 Mass. 579]1898, c. 578, § 11, by expressly requiring the company and its successors to make such repairs as might be needed. St. 1911, c. 552, amends St. 1910, c. 654, § 6, and when the original and amendatory acts are read in conjunction it is manifest that St. 1910, c. 654, § 1, provides solely for

‘the reconstruction of the joint railroad and highway bridge commonly known as Slade's Ferry Bridge * * * the Old Colony Railroad Company, its successors or assigns, shall reconstruct said Slade's Ferry Bridge, and locate the same at a point northerly thereof, but not exceeding one hundred feet therefrom, in the manner hereinafter stated. * * * The said reconstructed bridge shall be of sufficient width to provide two tracks for the railroad part, and also two tracks for the street railways on the highway part so...