City of New Bedford v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket S. S. Authority

• Decision Date: 09 July 1952
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CITY OF NEW BEDFORD et al. v. NEW BEDFORD, WOODS HOLE, MARTHA's VINEYARD & NANTUCKET S. S. AUTHORITY et al.

Page 513

107 N.E.2d 513

329 Mass. 243

CITY OF NEW BEDFORD et al. v. NEW BEDFORD, WOODS HOLE, MARTHA's VINEYARD & NANTUCKET S. S AUTHORITY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 8, 1952.

Decided July 9, 1952.

H. A. Lider, City Sol., L. A. Perras, Jr., Asst. City Sol., New Bedford, for City of New Bedford.

W. A. Garrity, Jr., Boston, for interveners.

R. G. Dodge, H. S. Davis, Boston, for New Bedford, Woods Hole, Martha's Vineyard and Nantucket S. S. Authority.

D. H. Stuart, Asst. Atty. Gen., for Department of Public Utilities.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

WILLIAMS, Justice.

This is a bill in equity brought by the city of New Bedford under G.L. (Ter.Ed.) c. 231A, inserted by St.1945, c. 582, § 1, seeking a declaratory decree as to the obligation of New Bedford, Woods Hole, Martha's Vineyard and Nantucket Steamship Authority to furnish adequate transportation service by steamship to and from the said city and as to the jurisdiction of the department of public utilities 'to deal with and enforce the obligation of the * * * Authority in respect of service.' The defendants are the Authority and the department. A group of seventeen taxpayers and voters of the town of Falmouth were allowed to intervene as plaintiffs. The case was reserved and reported for the consideration of the full court by a single justice without decision, upon the bill, the demurrer of the department, and the answers of the department and of the Authority. G.L.(Ter.Ed.) c. 211, § 6.

The facts set out in the bill and not denied in the answers, and all facts well pleaded in the answers which are at variance with the allegations in the bill, must be taken to be true. Joslin v. Boston & Maine Railroad, 274 Mass. 551, 552, 175 N.E. 156.

The Authority is created 'a body corporate' by special act of the Legislature, St.1948, c. 544. Therein it is provided that the Authority 'shall be deemed to be a public instrumentality for the purpose of this act,' which purpose is stated in the preamble of the statute to be 'to provide without delay adequate transportation facilities between New Bedford, Falmouth and the islands of Martha's Vineyard and Nantucket.' The Authority, which consists of five members appointed by the Governor, is authorized to purchase from Massachusetts Steamship Lines, Incorporated, a corporation which operates a steamship line between New Bedford, Falmouth, Martha's Vineyard and Nantucket, all of its property both tangible and intangible and to operate the said steamship line when purchased. The Authority may issue its bonds to provide for payment of the cost of the project and may fix rates of fare and charges adequate to meet the cost of service. Under certain stated conditions deficiencies in revenue may be compensated by payments from the treasury of the Commonwealth and the amount of such payments subsequently assessed on the city of New Bedford, the towns of Falmouth and Nantucket and the County of Dukes County in stated proportions.

It is alleged in the bill and admitted in the answers that the Authority was organized, that it purchased the property in question, and that in May, 1949, it began to operate the steamship line and to provide transportation facilities between New Bedford, Falmouth, and the Islands. On or about November 29, 1951, it 'voted to discontinue and eliminate any and all transportation service to and from the port of the * * * city of New Bedford, for the period January 2, 1952, to April 26, 1952.' 'On December 18, 1951, a complaint was filed with the department of public utilities, under the provisions of G.L. (Ter.Ed.) c. 159, § 24, by twenty legal voters of said city which recited the foregoing decision of the * * * Authority to discontinue service to and from New Bedford during the period January 2, 1952, to April 26, 1952, and which requested that the department examine into the propriety of such decision and order the * * * Authority to continue to furnish the 'adequate transportation facilities' to the city of New Bedford which it was required to provide by the act establishing * * * [it]. Acting on the foregoing petition the department of public utilities on December 20, 1951 entered an order to the effect that the * * * Authority maintain unchanged the operating schedule in effect on December 15, 1951, over all its lines (including the service to and from New Bedford) without modification until further ordered by the department * * * to avoid as the department recited in its order, irreparable damage to the public. The department in the same order directed, under a provision of G.L. c. 25, § 4A, that a public hearing be held at the City Counsel Chamber, City Hall, New Bedford, on Tuesday, January 15, 1952, at 11:00 a. m., in order that the department might investigate the service of said Authority as provided for in G.L. c. 159, § 16. * * * The * * * Authority, by its counsel, has * * * informed the duly authorized representatives of the * * * [city of New Bedford] that it has determined not to comply with the said order for the reason that it believes and contends that the * * * commissioners have no jurisdiction to make such an order and are without authority to deal with the amount of service to be rendered by the Authority.'

The Authority admits in its answer that the questions to which reference is made in the bill 'ought to be determined' and joins in the plaintiffs' prayers for a declaratory decree. The department in its answer denies that any controversy exists 'between all the parties named in' the bill but prays that this court 'determine the matter of its jurisdiction and whether the department has been deprived of power by virtue of St.1948, c. 544, as amended.' The department filed a demurrer alleging '1. That the * * * [plaintiff] has not stated in its bill such cause as entitles it to any relief in equity. 2. That the court is without jurisdiction to entertain this bill. 3. That no actual controversy exists between the parties mentioned in this bill. 4. That the cause of action set forth in its bill is anticipatory in character and content, and unless and until the Authority discontinues service to the port of the city of New Bedford, the court would not be warranted in assuming jurisdiction in this matter. 5. The scope of the Authority's general powers is not to be determined by the general powers vested in the department of public utilities by G.L. (Ter.Ed.) c. 159.'

On December 28, 1951, the Authority with the approval of the court stipulated that until further order of the court the operating schedules of the Authority in effect on December 15, 1951, would be substantially maintained. We assume that following this stipulation there was no actual suspension of service to and from New Bedford. The period of the threatened suspension has now expired and the question as to what, if any, relief should be given the plaintiffs from such suspension of service has become moot. We think it inadvisable to proceed further by attempting to define generally the obligation of the Authority to furnish adequate transportation service to and from New Bedford. The standard of adequacy can have meaning only in its application to the facts of a particular case.

There remains, however, for consideration the alleged controversy between the Authority and the department of public utilities in reference to the jurisdiction of that department in general over the service to be provided by the Authority. The construction of St.1948, c. 544, under which the Authority derives its power, and of G.L. (Ter.Ed.) c. 159, by virtue of which the department claims jurisdiction, is involved. The department has asserted jurisdiction by issuing its order of December 20, 1951. The Authority has indicated its intention to refuse compliance with that order. Both parties have a definite interest in the matter involved and 'the circumstances attending the dispute plainly indicate that unless the matter is [decided] such antagonistic claims will almost immediately and inevitably lead to litigation.' School Committee of Cambridge v. Assistant Superintendent of Schools of Cambridge, 320 Mass. 516, 518, 70 N.E.2d 298, 300; Hogan v. Hogan, 320 Mass. 658, 662, 70 N.E.2d 821. We think that under the authority of G.L. (Ter.Ed.) c. 231A, § 1, this...