Keefe v. Lexington & B. St. R. Co.

• Citation: 185 Mass. 183,70 N.E. 37
• Parties: KEEFE v. LEXINGTON & B. ST. RY. CO.
• Decision Date: 26 February 1904
• Court: United States State Supreme Judicial Court of Massachusetts

185 Mass. 183

70 N.E. 37

KEEFE v. LEXINGTON & B. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

February 26, 1904

COUNSEL

Alexander

Wilson, for appellant.

Coolidge & Hight, for appellee.

OPINION

KNOWLTON C.J.

The plaintiff seeks to recover five cents, paid under protest for his fare, demanded by the conductor on one of the defendant's cars. The defendant corporation was organized under the laws of this commonwealth, after St. 1898, p. 737 c. 578, went into effect. The selectmen of the town of Concord and the selectmen of the town of Bedford, in granting the defendant a location in their respective towns prescribed conditions as to the fares that might be charged for the transportation of passengers within the limits of the town. The plaintiff contends that the fare charged and collected in his case was in violation of these conditions. The first and most important question before us is whether such a condition could be imposed legally by a board of selectmen in granting a location. Under St. 1898, p 743, c. 578, § 13, the board of aldermen of a city or the selectmen of a town in granting a location to a street railway company may prescribe the manner in which the 'tracks shall be laid, and the kind of rails, poles, wires and other appliances which shall be used, and they may also impose such other terms, conditions and obligations in addition to those applying to all street railways under the general provisions of law, as the public interest may, in their judgment require.' The question is whether a condition may be imposed regulating and restricting the fares to be charged. The statute contains other provisions in regard to fares. By Pub. St. 1882, c. 113, § 43, which was in force when the defendant corporation was organized (Rev. Laws, c. 112, § 69), the directors of a street railway company 'may establish the rates of fare on all passengers and property conveyed or transported in its cars, subject, however, to the limitations named in its charter, or hereinafter set forth.' Section 44 provided for a revision and regulation of the fares by the railroad commissioners, and section 45 provided that nothing contained in the two preceding sections should authorize the company or the board to raise the rate of fare above the rate established by agreement, made as a condition of location or otherwise, between the company or its directors and the mayor and aldermen of a city or the selectmen of a town, except by a mutual arrangement with the parties. This section recognizes the validity of such agreements under the former statute. But this and the next preceding section were repealed by St. 1898, p. 748, c. 578, § 26, leaving the section as to the authority of the directors to stand with no limitations upon their right. A new section in regard to the revision of the fares by the railroad...