Dep't of Pub. Utilities v. Trs. of Properties of New York, N.H.&H.R. Co.

• Decision Date: 29 December 1939
• Citation: 304 Mass. 664,24 N.E.2d 647
• Parties: DEPARTMENT OF PUBLIC UTILITIES v. TRUSTEES OF PROPERTIES OF NEW YORK, N. H. & H. R. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 664

24 N.E.2d 647

DEPARTMENT OF PUBLIC UTILITIES

v.TRUSTEES OF PROPERTIES OF NEW YORK, N. H. & H. R. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 29, 1939.

Case Reserved and Report from Supreme Judicial Court, Suffolk County.

Original proceeding by the Department of Public Utilities of the Commonwealth of Massachusetts for a writ of mandamus to compel the Trustees in Bankruptcy of the Properties of the New York, New Haven & Hartford Railroad Company and the Old Colony Railroad Company to comply with petitioner's order to maintain prescribed passenger service between certain cities. On reservation and report by a single justice of the Supreme Judicial Court.

Order remanding case to the county court for the purpose of permitting petitioner to apply for an appropriate amendment before a single justice in accordance with terms of report.E. O. Proctor, Asst. Atty. Gen., for petitioner.

C. R. Branch, and R. W. Ellis, both of Boston, for respondents.

FIELD, Chief Justice.

This is a petition brought in this court by the department of public utilities, which is ‘under the supervision and control of a commission of five members' (G.L.[Ter.Ed.] c. 25, see sections 1, 2), for a writ of mandamus to compel the respondents, the trustees of the properties of the New York, New Haven and Hartford Railroad Company, debtor, and of the Old Colony Railroad Company, debtor, both in reorganization under section 77 of the Federal bankruptcy law, 11 U.S.C.A. § 205, to comply with all the terms and conditions of an order dated July 28, 1938, made by said department-a copy of which is attached to the petition. This order purports to have been made upon a petition by the respondent trustees of the New York, New Haven and Hartford Railroad Company-one of eighteen petitions ‘seeking the approval of the commission to the abandonment of passenger service at 88 stations in southeastern Massachusetts'-which involved the abandonment of ‘all of the stations on the railroad from Bass River to Provincetown, both inclusive, on Cape Cod.’ The order made upon the petition was ‘that the Trustees of the New York, New Haven and Hartford Railroad Company, operating the Old Colony Railroad under a decree of the Federal Court for the District of Connecticut, operate a gas-electric rail car on all weekdays from Yarmouth to Provincetown to in the morning and from Provincetown to Yarmouth in the afternoon, and said gas-electric rail car shall stop to permit passengers to board or alight at the following stations: [naming nine of them],’ and as to these stations the petition is denied, and ‘that the Department hereby grants its approval in writing of the abandonment of the following stations: [naming eight stations other than those previously referred to in the order].’

The respondents filed an answer containing two subdivisions. Subdivision I is entitled ‘Answers to Matters Demurrable,’ and contains four paragraphs numbered one, two, three and four, respectively. The fourth paragraph is as follows: ‘It is nowhere alleged in the petition before the court that the petitioners do not have other adequate and effectual remedy; by G.L.(Ter.Ed.) c. 25, § 5, and G.L.(Ter.Ed.) c. 160, § 252, it is provided that this court shall have jurisdiction in equity to enforce valid orders of the said department of public utilities; and where other adequate and effectual remedy exists, there is no authority in law for proceedings for mandamus.’ Subdivision II is entitled ‘Answers in the Nature of Pleas in Abatement,’ and contains two paragraphs numbered five and six respectively. The petitioners in response to the answer of the respondents filed a ‘traverse and demurrer thereto’ in which they demurred ‘to the averments contained in paragraphs 5 and 6 under caption ‘II. Answers in the nature of pleas in abatement.’' A further answer by the respondents is on file, but is not now involved.

The case came on to be heard before a single justice of this court upon the petition, the answer of the respondents and the petitioners'traverse and demurrer. He reserved and reported the case ‘upon so much of the aforesaid pleadings as relate to the matters contained in paragraphs 1 to 6, inclusive, of the respondents' answer for determination by the full court. If any of the matters contained in paragraphs 1 to 6, inclusive, of the answer constitutes a valid defense, the petition is to be dismissed with costs to the respondents, provided, however, if the court is of the opinion that the petitioners' remedy is by a bill in equity and not by mandamus the petitioners are to be given the right to apply for an appropriate amendment before the single justice. If none of said matters constitutes a valid defense, the proceeding is to be remitted to a single justice for further proceedings upon the matters involved in the remaining paragraphs of the answer and the traverse and demurrers thereto.’

At the argument before the full court the respondents waived all defences set up by the six paragraphs of the answer, herein referred to, except the defence set up by paragraph four thereof, above quoted. The sole question for decision, therefore, is whether a petition for a writ of mandamus will lie to enforce an order of the department of public utilities such as is referred to in the petition-provided such order is valid-particularly when it is not alleged in the petition that the petitioners have no ‘other adequate and effectual remedy.’

While no question of the validity of the order of the department referred to in the petition is presented for decision, the nature of this order must be considered in its bearing upon the procedural question raised. The petitioners rely for authority to make the order upon G.L.(Ter.Ed.) c. 160, § 128, which reads as follows: ‘A railroad corporation which has established and maintained a passenger station throughout the year for five consecutive years at any point upon its railroad shall not abandon such station, unless it is relocated under the following section, nor substantially diminish the accommodation furnished by the stopping of trains thereat as compared with that furnished at other stations on the same railroad, except with the written approval of the department after notice posted in and on said station for a period of thirty days immediately preceding a public hearing thereon.’ The petitioners urge that the order made was in substance ‘a partial denial of the application for abandonment.’

The specific prayer of the petition-which is coupled with a prayer for general relief-in form, seeks relief against negative conduct of the respondents in failing to comply with the order in question, including failing to ‘operate a gas-electric rail car’ which shall ‘stop to permit passengers to board or alight’ at certain stations. But the conduct of the respondents, against which relief is sought, apparently includes also some affirmative elements, namely, abandoning, in violation of G.L.(Ter.Ed.) c. 160, § 128, certain passenger stations, the abandonment of which has not received the written approval of the department, and violating the order of the department denying the petition of these respondents for approval of abandonment of such stations.

The petitioners contend that under authority of G.L.(Ter.Ed.) c. 159, § 40, read in the light of the law relating to mandamus generally, this court has jurisdiction to issue a writ of mandamus to compel the respondents to comply with the terms and conditions of the order in question. The respondents, on the other hand, contend that the only jurisdiction of this court to compel the respondents to comply with the terms and conditions of this order-if it is valid-is in equity, under G.L.(Ter.Ed.) c. 25, § 5, and c. 160, § 252.

Little aid in the determination of the question presented is to be derived from G.L.(Ter.Ed.) c. 25, § 5. That chapter is a chapter dealing with the department of public utilities generally. In the second paragraph of section 5 thereof ‘jurisdiction in equity’ is conferred upon the Supreme Judicial Court ‘to review, modify, amend or annul any ruling or order of the commission * * * but only to the extent of the unlawfulness of such ruling or order,’ with detailed provisions as to procedure. Such review is referred to also in the first paragraph of the section. This provision for review was described in Boston & Albany Railroad v. New York Central Railroad, 256 Mass. 600, 618, 153 N.E. 19, 25, as more specific than the power of review given ‘in general terms by G.L. c. 160, § 252,’ and, consequently, controlling with respect to a proceeding within its scope. The present proceeding, however, is not brought under the second paragraph of section 5. The third paragraph thereof, however, provides in somewhat more general terms that the ‘supreme judicial court shall also have jurisdiction, upon application of the commission, to enforce all valid orders of the commission and the provisions of this chapter and of chapter one hundred and fifty-nine.’ The jurisdiction thus conferred is not in terms limited to jurisdiction ‘in equity’ and we think that no such limitation can be implied from the fact that the jurisdiction conferred by the previous paragraph is so limited. We are confirmed in this opinion by the fact that prior to the codification of the statutes in General Laws a sentence closely similar to this third paragraph was the first sentence of St.1913, c. 784, § 28, the remainder of which section, substantially unchanged, became G.L. c. 159, § 40, hereinafter considered, referring expressly to proceedings ‘either by mandamus or injunction.’ This sentence was omitted from G.l. c. 159, § 40, in the codification ‘as being covered by 1919, c. 350, § 121,’ according to a statement by the Joint Special Committee on Consolidating and Arranging the General Laws. See Report of Committee, page 1446. Said section 121 was codified as G.L. c. 25, § 5, and included in...