Com. v. Interstate Consol. St. Ry. Co.

• Decision Date: 01 March 1905
• Citation: 73 N.E. 530,187 Mass. 436
• Parties: COMMONWEALTH v. INTERSTATE CONSOLIDATED ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 436

73 N.E. 530

COMMONWEALTH v. INTERSTATE CONSOLIDATED ST. RY. CO.

Supreme Judicial Court of Massachusetts, Bristol.

March 1, 1905

COUNSEL

Jas.

M. Swift and Frank B. Fox, for the Commonwealth.

Jos. H Knight and Everett W. Burdett, for defendant.

OPINION

KNOWLTON C.J.

The only question in this case is whether Rev. Laws, c. 112, § 72, is constitutional. This statute requires street railway companies to carry pupils of the public schools in their regular course going from their homes to the schools and returning therefrom, at rates not exceeding half the regular fare charged by the company for the transportation of other passengers between the same points. The defendant offered evidence tending to show that one-half of the regular fare charged for passengers on its lines, within the limits of the towns in which it operates, is less than the average cost per passenger of their transportation. It offered to prove that its business is conducted economically. It also wished to show that one street railway company which is exempted from the operation of this statute transports nearly one-half of all the passengers carried on street railways in this commonwealth, and receives nearly one-half of all the income received for the transportation of passengers on these street railways. This evidence was excluded. The defendant contended, and asked the court to rule, that the statute is repugnant to the fourteenth amendment of the Constitution of the United States, in that it does not apply to all the street railway companies in the commonwealth, and does not apply to all persons using street railways, nor even to all pupils using street railways, but only to pupils of the public schools. It also asked for a ruling that the statute deprives it of its property without just compensation, and without due process of law, and is repugnant to the tenth article of the Declaration of Rights of Massachusetts, and to the fifth and fourteenth articles of amendment to the Constitution of the United States. Exceptions were taken to the refusal of the court to make these rulings. The defendant does not question the right of the Legislature reasonably to regulate its rates of fare. While this right is well established, it can be exercised only in such a way as will not deprive the company of its property without compensation or without due process of law. Action of a Legislature in this particular is subject to the revisory powers of the courts. Reagan v. Farmers' Loan & Trust Company, 154 U.S. 362, 397, 399, 14 S.Ct. 1047, 38 L.Ed. 1014; Smyth v. Ames, 169 U.S. 466, 526, 18 S.Ct. 418, 42 L.Ed. 819; Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 91, 22 S.Ct. 30, 46 L.Ed. 92. If the effect of this statute were to compel the defendant to conduct its business at a loss, we should say unhesitatingly that the law was unconstitutional. But the section places no limitation upon the rates that may be charged generally. It only fixes, in connection with the regular rate, the relative fare to be charged for carrying pupils to and from the public schools. There is nothing in it to prevent the defendant from making its regular fare for passengers within the limits of a town six or seven cents instead of five cents, charging pupils in the public schools onehalf of the price so established.

Rev. Laws, c. 112, § 1, leaves unchanged the provisions of law in force at the time of its enactment which were applicable to the Boston Elevated Railway Company. This company is thereby exempted from these provisions as to pupils of the public schools. It is contended that this makes a discrimination, which deprives the defendant of the equal protection of the laws. The constitutional principle invoked in this contention does not require that the same laws shall be enacted for all street railway companies in different parts of a state. Attorney-General v. Old Colony Railroad Company, 160 Mass. 62, 89, 35 N.E. 252, 22 L. R. A. 112; C. & L. Turnpike Co. v. Sandford, 164 U.S. 578, 17 S.Ct. 198, 41 L.Ed. 560; Tilley v. Savannah, etc., Railroad Company (C. C.) 5 Fed. 641, 661, 4 Woods, 427; Ames v. Union Pacific Railroad Company (C. C.) 64 F. 165, 171. The situation of the lines of the Boston Elevated Railway Company in the midst of a dense population is so different from that of other lines in the state, and their fitness for use by children in going to and from the public schools might be found by the Legislature to be so unlike that of street railways generally in the state, as properly to call for an exemption from the law established for others. We cannot say that the Legislature had no power to make this distinction, founded on differences in conditions.

The most important and difficult question in the case is whether there is constitutional justification for a discrimination between pupils of the public schools and other persons. If this were an absolute and arbitrary selection of a class, independently of good reasons for making a distinction, the provision would be unconstitutional and void. As was said by Mr. Justice Brewer in Gulf, etc Railway Company v. Ellis, 165 U.S. 150, 156, 17 S.Ct. 255, 41 L.Ed. 666: 'Arbitrary selection can never be justified by calling it classification. The equal protection demanded by the fourteenth amendment forbids this.' The subject of compelling a...