Commonwealth v. Boston & Maine Transportation Co.

Decision Date29 March 1933
Citation282 Mass. 345
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesCOMMONWEALTH v. BOSTON & MAINE TRANSPORTATION COMPANY. SAME v. DANIEL L. REARDON.

January 9, 1933.

Present: RUGG, C.

J., PIERCE, WAIT DONAHUE, & LUMMUS, JJ.

Motor Vehicle Sight-seeing bus. Carrier, Of passengers: by motor bus. Constitutional Law, Equal protection of laws. General Court.

It is within the power of the General Court to delegate to the police commissioner of Boston and to the department of public utilities the powers conferred upon them, respectively, by St. 1931, c. 399.

St. 1931, c.

399, as applied to a motor bus whose owner, without having complied with the requirements of the statute and pursuant to a contract furnished it on a single occasion for a stipulated consideration to transport members of a convention, without other passengers, from a hotel in Boston over the highways to nearby places in the Commonwealth of historical interest and back to the hotel, and furnished with the bus a driver and a guide who, outside of Boston, pointed out places of interest and gave descriptive and historical information to the passengers, did not deny the equal protection of the laws to the owner of the bus in violation of the Constitution of the

United States and the Constitution of this Commonwealth, assuming that the owner in these circumstances was acting as a private carrier.

Said statute, in the circumstances above described, could not properly be attacked on the ground that it converted the owner of the bus from a private carrier into a common carrier.

In the circumstances above described, the driver of the bus, who was not licensed in accordance with the requirements of said c 399, was not deprived of his right to the equal protection of the laws by being held amenable to the statute, even though he had been employed to operate other motor buses of the owner on regular routes and at such other times and places as the owner might direct.

THREE COMPLAINTS, received and sworn to in the Municipal Court of the City of Boston, the first two on July 16, 1931, and the third on July 17, 1931.

The first complaint charged the defendant with the operation of five sight-seeing buses which were not licensed as required by law and for which the defendant had not secured a certificate of public convenience and necessity from the department of public utilities. The second complaint charged the defendant with operating one of such automobiles. The third complaint charged the defendant with operating a sight-seeing automobile without his having been licensed to do so as required by law.

Upon appeal to the Superior Court, the defendants waived trial by jury; and the complaints were heard together by Williams, J., upon agreed statements of facts. Material facts are stated in the opinion. The defendants were found guilty on each complaint. The judge reported the complaints for determination by this court.

R. W. Hall, for the defendants. F. T. Doyle, Assistant District Attorney, for the Commonwealth.

RUGG, C.J. These two cases were submitted upon an agreed statement of facts and trial by jury was waived. The defendants were found guilty, fines were imposed, and with the consent of the defendants the cases were reported. G. L. (Ter. Ed.) c. 278 Section 30. Commonwealth v. Surridge, 265 Mass. 425 , 426.

The material facts are these: The corporate defendant, pursuant to contract, furnished on July 9, 1931, five sight-seeing automobiles, commonly known as buses, exclusively to transport members of a convention from a hotel in Boston over the highways of the Commonwealth to Lexington, Concord, the Wayside Inn, and back to the hotel. The charge was a fixed price for each automobile irrespective of the number of persons transported or the time spent on the trip. These automobiles were under control of members of the convention save as to actual operation. The corporate defendant sold no tickets, took no passengers other than members of the convention, and derived no revenue from the transaction except the stipulated price per automobile. The corporate defendant furnished for each automobile a driver and a guide who, outside of Boston, pointed out places of interest and gave descriptive and historical information to the passengers. No one of these motor vehicles was licensed to operate as a sight-seeing automobile. The department of public utilities had not issued certificates that public necessity and convenience required such operation. No one of the sight-seeing automobiles used on this occasion was habitually engaged in travelling over the stipulated route, but each was a spare bus of the defendant rented for the particular trip. The individual defendant was an employee of the corporate defendant: acting under its directions, he operated one of the sight-seeing automobiles on the trip in question without having a license therefor.

Each defendant is charged with violation of St. 1931, c. 399. By Section 1 a sight-seeing automobile is defined as a motor vehicle "used for the carrying for a consideration of persons for sight-seeing purposes in or from the city of Boston and in or on which automobile guide service by the driver or other person is offered or furnished."

Section 2 is in these words: "It shall be unlawful for a person or a corporation to offer or furnish service by a sight-seeing automobile in or from the city of Boston unless said automobile is licensed hereunder and unless a certificate of public convenience and necessity is obtained as hereinafter provided, and it shall be unlawful for a person to operate such an automobile as driver in or from said city unless he is licensed so to do as hereinafter provided." By other sections exclusive authority is vested in the police commissioner of Boston to grant the licenses for operators, and in the department of public utilities to grant certificates of public necessity and convenience as to offering or furnishing service by sight-seeing automobiles. There is in Section 3 a schedule of fees to be charged for licenses of owners of sight-seeing automobiles, providing that the fees shall not be less than those established for hackney carriages and shall not exceed sums ranging from $10 for such automobile designed to carry not more than twelve persons to $50 for those designed to carry more than twenty-four persons.

It is apparent that the transactions on which these complaints rest had their beginning and end within the Commonwealth. The contract for transportation was made in this Commonwealth. The route of the sight-seeing automobiles was wholly over highways within the Commonwealth. The transportation, both as to passengers and motor vehicles, was entirely intrastate. That the General Court has power to exercise reasonable control over motor vehicle travel on highways is settled. It may require licenses for operators of motor vehicles engaged in local or domestic carriage. Commonwealth v. Potter, 254 Mass. 271 . It may constitute licenses subject to reasonable conditions a prerequisite to such operation of motor vehicles. Commonwealth v. Slocum, 230 Mass. 180 . Burgess v. Mayor & Aldermen of Brockton, 235 Mass. 95. It may forbid any person to operate duly licensed motor vehicles as common carriers of passengers without having also obtained a certificate from a public board or officer declaring that public necessity and convenience require such operation. The intrastate business of common carriers of passengers by motor vehicle is subject to extensive regulation under the authority of the Legislature. Barrows v. Farnum's Stage Lines, Inc. 254 Mass. 240 . New York Central Railroad v. Conlin Buss Lines, Inc. 258 Mass. 498 , 500. Roberto v. Department of Public Utilities, 262 Mass. 583. Interstate Busses Corp. v. Holyoke Street Railway, 273 U.S. 45, 49, 52. Automobiles may under legislative authority be wholly excluded from particular highways. Commonwealth v. Kingsbury, 199 Mass. 542 . State v. Mayo, 106 Maine, 62. People v. Rosenheimer, 209 N.Y. 115, 120. Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U.S. 335, 337. In exercising its authority over highways the General Court is not limited to the raising of revenue or to regulations as to the manner of operation of motor vehicles. It may employ reasonable means to prevent wear and to ameliorate the hazards due to size and weight of load. Sproles v. Binford, 286 U.S. 374, 388. It may adopt every reasonable measure to promote safety of travel upon public ways. Opinion of the Justices, 251 Mass. 569 , 595-600. "It is well established law that the highways of the state are public property; that their primary and preferred use is for private purposes; and that their use for purposes of gain is special and extraordinary, which, generally at least, the legislature may prohibit or condition as it sees fit." Stephenson v. Binford, 287 U.S. 251, 264.

There is no doubt of the power of the General Court to delegate to the police commissioner of Boston and to the department of public utilities the powers conferred by St. 1931, c. 399. Commonwealth v. Slocum, 230 Mass. 180, 190. Bradley v. Zoning Adjustment Board of Boston, 255 Mass. 160 , 171,...

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