City of Newton v. Department of Public Utilities

• Decision Date: 03 July 1959
• Citation: 160 N.E.2d 108,339 Mass. 535
• Parties: CITY OF NEWTON and another * v. DEPARTMENT OF PUBLIC UTILITIES and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 108

160 N.E.2d 108

339 Mass. 535

CITY OF NEWTON and another ^* v. DEPARTMENT OF PUBLIC UTILITIES and others.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued June 12, 1959.

Decided July 3, 1959.

Matt B. Jones, City Sol., Boston, for City of Newton.

Richard H. Lovell, Boston, and David B. Eusden, Newton, for Newton Improvement Ass'n.

Edward J. McCormack, Jr., Herbert Baer and Richard J. Ferriter, Boston, for respondents.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

The city of Newton and Newton Improvement Association seek review under G.L. c. 25, § 5 (as amended through St.1956, c. 190), ¹ of a decision of the department of public utilities (the department) authorizing (a) the abandonment by the Boston and Albany Railroad Company and by its lessee, the New York Central Railroad Company (hereinafter together called the railroads), of several passenger stations, and (b) the discontinuance of certain trains and of stops of other trains. The department and the railroads demurred and answered. A single justice reserved the case without decision upon the petition, the demurrers, the answers, and the complete record before the department for the decision by the full court of the questions of law thereby presented.

The railroads asked to discontinue six trains eastbound and four trains westbound between South Station and Riverside, substituting stops at Riverside and intermediate stations (so far as not to be abandoned) by trains running between Framingham and South Station. Some of these trains would operate 'on a so called 'skip-stop' arrangement under which * * * [they] will omit a stop at every other station, which * * * in turn will be served by the next succeeding train.' ² The railroads also sought discontinuance of all service at Newton station near Newton Corner so called (and certain other stations here not in controversy). The petition for review (a) requests that the department's decision be set aside in the respects in which it affects the city of Newton, and (b) asserts error in the denial and granting of requests for rulings.

The decision includes the following findings. The discontinuance of other "rush-hour trains * * * in the light of the alternative service which is proposed" will result in '[s]ome reduction in the * * * trains stopping at' various stations from Newtonville west, but 'the service * * * to be continued * * * will be such that all of the passengers now using the trains during rush hours will have trains available * * * which will permit them to arrive [at] and depart from Boston at substantially the same times' as at present. For these stations '[f]requent service will still be available. In many cases the service will be faster * * * and in almost every case a train will be available within five to ten minutes earlier or later than the trains * * * to be discontinued.' Riverside 'will no longer be used as a transfer point, and commencing in July, 1959, frequent MTA [Metropolitan Transit Authority street car] service will be available' there.

There also 'is alternative MTA service near the Newton station. * * * Newtonville station, where frequent railroad service will still be available, is approximately one mile from the Newton station. Many people today make the trip from their home[s] to the station by automobile and the additional travel to Newtonville will not seriously inconvenience them. * * * [N]o fixed rule * * * requires that a station be available to patrons less than one or even two miles from their homes. Many people today travel greater distances to * * * railroad service. * * * [T]he riding habits of the public have changed measurably in recent years. The public and the railroad service must be mutually adjusted to these changing travel patterns. While the passengers using the Newton station may no longer enjoy an unusually advantageous position, the availability of railroad service or alternative forms of public transportation will continue at least to be equal to that of a great number of other people presently using railroad service. Considering the interests of all the railroad's suburban passengers * * * public convenience and necessity would not be served by requiring the railroad to continue to serve the Newton' station, although approximately four hundred people use it each day in each direction.

'Since 1952 when * * * [New York Central] earned a net income of $52 million its earnings have deteriorated steadily. In 1957 its net income was approximately $8.4 million and for the eleven months ending November 30, 1958, it showed a deficit from operation in excess of $1 million. Subsequent unaudited figures for the full year * * * showed a net income of * * * $4 million, but this figure included * * * $13 million of retroactive mail payments * * * attributable to prior years. * * * [T]he passenger service is operating at a considerable deficit * * * [which] appears to be * * * increasing * * *. A higher proportion of the freight income is required to absorb the passenger deficit. This proportion reached 64% in 1957. The number of commutation passengers carried on the * * * Central System * * * decreased by approximately 36% between 1947 and 1957 and by 4.26% between 1952 and 1957. During the same periods commutation revenues have, nevertheless, increased due to * * * fare increases * * *. Within the Boston and Albany division commutation passengers * * * decreased from 3.1 million in 1952 to 2.8 million in 1957 * * *. Moreover, in 1958 2.4 million passengers were carried, a decrease of over 400,000 passengers from the preceding year. When this information is evaluated * * * with the fact that a fare increase * * * was recently made applicable to commutation travel on the * * * division, these figures suggest that fares may have reached a level which will no longer permit the railroad to maintain or increase passenger revenues by * * * further fare increases, since any substantial fare increase appears likely to cause a serious decline in the number of passengers carried, which may offset in large part the revenue increase expected to result.'

The department estimated that the 'net annual saving from the grant of the petition' would be $77,665 even if all the Newton station 'passengers no longer ride the railroad' so that the total revenue ($87,001 in 1958 projected to present fare levels) from Newton passengers is lost. If all or a portion of the Newton passengers go to Newtonville to take the train the savings would be greater.

The department ruled that the 'mere fact that the railroad could effect some savings if the petition were allowed, is not in itself a sufficient ground for permitting the discontinuance of service,' but that the department 'must judge whether public convenience and necessary requires * * * continuation of the service.' The decision pointed out, 'however, that in a period of declining patronage and increasing costs, railroad passenger travel in its entirety is threatened. Economies in operating * * * should be encouraged in order that essential service can be preserved. The convenience resulting from the operation of any particular trains or the stopping at particular stations must be evaluated within the context of the entire passenger service. When so viewed, there may be instances where the discommonding of some passengers is necessary in order that service to the many may be preserved.'

The decision reviewed the evidence showing that, apart from minor 'savings resulting from the discontinuance of * * * five stations [including Newton station], the major objective was the improvement of the service rendered to passengers from Newtonville * * * and * * * stations west of Newtonville. * * * All of these [five] stations are within very short distance of MTA service. * * * If we were to decide cases * * * on the basis that it cost the railroad nothing to stop a train, we could be * * * requiring the railroad to stop so frequently that its service would approximate a local transit service. Such frequent stopping is not fair to the great majority of passengers who must ride long distances * * * and who have no alternative transportation. Railroad commutation service depends on the road being able to retain its present patronage * * * wherever the service is essential and perhaps to attract additional patronage in the longer haul category.'

1. The department has broad general power of regulation of carriers, including railroads. G.L. c. 159, §§ 10, 12(a) (as amended through St.1945, c. 175), §§ 13, 16, 16A, 24, 105; also c. 160, §§ 128 (as amended through St.1922, c. 116), 128A (inserted by St.1957, c. 159), ³ and 129. Under c. 159, § 12, the department is given 'general supervision and regulation of * * * the following services, when furnished * * * for public use within the commonwealth,' including '(a) [t]he transportation * * * of persons or property * * * between points within the commonwealth by railroads.' By § 16, the department is given power after hearing, if in its 'opinion * * * the regulations * * * or service of any common carrier are * * * inadequate,' to determine the 'service thereafter to be used,' ⁴ and, by § 16A, the 'department before authorizing any railroad to discontinue * * * any * * * lines, stations or * * * service, may consider, in addition to other facts, the revenues of said railroad from all sources.'

2. The demurrers present the question whether the petitioners have standing to seek judicial review of the department's decision under G.L. c. 25, § 5, as amended, or under G.L. c. 30A, §§ 1(1), 1(3), 10 and 14 (as amended through St.1957, c. 193, § 1). ⁵

Procedure before the department is now governed by the State administrative procedure act found in G.L. c. 30A. See St.1955, c. 285, § 1, amending G.L. c. 25, § 4. See also 1955 Annual Survey of Mass.Laws, §§ 13.1, 15.17. Since 'legal rights * * * of specifically named persons' ...