Commonwealth v. Reardon

• Decision Date: 03 April 1933
• Citation: 282 Mass. 345,185 N.E. 40
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. REARDON. SAME v. BOSTON & MAINE TRANSP. CO.

282 Mass. 345

185 N.E. 40

COMMONWEALTH

v.REARDON.

SAME

v.BOSTON & MAINE TRANSP. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1933.

Reported from Superior Criminal Court, Suffolk County; H. J. Williams, Judge.

Daniel F. Reardon and the Boston & Maine Transportation Company were convicted of violations of St. 1931, c. 399, and the cases were reported.

Affirmed.F. T. Doyle, Asst. Dist. Atty., of Boston, for the commonwealth.

Richard W. Hall, of Boston, for defendants.

RUGG, Chief Justice.

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, § 30; Commonwealth v. Surridge, 265 Mass. 425, 426, 164 N. E. 480, 62 A. L. R. 402.

The material facts are these: The corporate defendant, pursuant to contract, furnished on July 9, 1931, five sight-seeing automobiles commonly known as busses, 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 vehicleswas 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 traveling 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 becharged 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 12 persons to $50 for those designed to carry more than 24 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 automobileswas 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 carriate. Commonwealth v. Potter, 254 Mass. 271, 150 N. E. 213. It may constitute licenses subject to reasonable conditions a prerequisite to such operation of motor vehicles. Commonwealth v. Slocum, 230 Mass. 180, 119 N. E. 687;Burgess v. City of Brockton, 235 Mass. 95, 126 N. E. 456. 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, 150 N. E. 206;New York Central Railroad Co. v. Conlin Bus Lines, Inc., 258 Mass. 498, 500, 155 N. E. 601;Roberto v. Com'rs of Department of Public Utilities, 262 Mass. 583, 160 N. E. 321;Interstate Busses Corp. v. Holyoke Street Railway Co., 273 U. S. 45, 49, 52, 47 S. Ct. 298, 71 L. Ed. 530. Automobiles may under legislative authority be wholly excluded from particular highways. Commonwealth v. Kingsbury, 199 Mass. 542, 85 N. E. 848, L. R. A. 1915E, 264,127 Am. St. Rep. 513;State v. Mayo, 106 Me. 62, 75 A. 295,26 L. R. A. (N. S.) 502,20 Ann. Cas. 512;People v. Rosenheimer, 209 N. Y. 115, 120,102 N. E. 530,46 L. R. A. (N. S.) 977, Ann. Cas. 1915A, 161; Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U. S. 335, 337, 52 S. Ct. 144, 76 L. Ed. 323. 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, 52 S. Ct. 581, 76 L. Ed. 1167. It may adopt every reasonable measure to promote safety of travel upon public ways. Opinion of the Justices, 251 Mass. 569, 595-600, 147 N. E. 681. ‘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 prohibitor condition as it sees fit.’ Stephenson v. Binford, 287 U. S. 251, 264, 53 S. Ct. 181, 184, 77 L. Ed.288.

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 chapter 399. Commonwealth v. Slocum, 230 Mass. 180, 190, 119 N. E. 687;Bradley v. Board of Zoning Adjustment, 255 Mass. 160, 171, 150 N. E. 892, and cases collected; Roberto v. Com'rs of Department of Public Utilities, 262 Mass. 583, 587, 160 N. E. 321;Sproles v. Binford, 286 U. S. 374, 397, 52 S. Ct. 581, 76 L. Ed. 1167.

There is nothing in the record to show that the defendants ever engaged in transportation of passengers by sight-seeing automobile except on this single occasion. That transportation was by virtue of a special contract and was solely for the members of the particular convention, and not for the general public. The consideration was based not on the number of persons carried but on the number of sight-seeing automobiles furnished. It is assumed that, so far as possible in the nature of things the corporate defendant was acting as a private carrier and not as public carrier in transporting these considerable numbers of human beings. If it had been transporting merchandise, it would doubtless have been a private carrier. Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 75 L. Ed. 1264.

The statute by section 5 confers upon the department of public utilities power to attach to the exercise of the privilege conferred by the certificate of public necessity and convenience, conditions as to operation and fares and to make ‘reasonable rules, orders and regulations governing the operation and fares of sight-seeing automobiles carrying persons in or from the city of Boston.’ Commonly the fixing of rates for transportation of goods or of passengers by legislative authority is confined to public carriers and does not extend to private carriers. Michigan Public Utilities Commission v. Duke, 266 U. S. 570, 576, 578, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105;Frost & Frost Trucking Co. v. Railroad...