Leroy v. Worcester St. Ry. Co.

• Decision Date: 07 June 1934
• Citation: 287 Mass. 1,191 N.E. 39
• Parties: LEROY et al. v. WORCESTER ST. RY. CO. et al. STEVENS v. WORCESTER ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 1

191 N.E. 39

LEROY et al.

v.WORCESTER ST. RY. CO. et al.

STEVENS

v.WORCESTER ST. RY. CO.

Supreme Judicial Court of Massachusetts, Worcester.

June 7, 1934.

Reservation and Report from Supreme Judicial Court, Worcester County.

Suits in equity by Joseph T. Leroy and others, and by Adelaide F. Stevens, against Worcester Street Railway Company and others. An interlocutory decree overruled a demurrer in the first suit, an appeal therefrom being taken, and an interlocutory decree confirmed the master's report in each suit. On reservation and report.

Decree overruling demurrer in first suit affirmed, and decree for plaintiffs ordered; in second suit, bill dismissed.R. J. Hastings, of Worcester, for Leroy and others.

W. E. Mellquist, of Worcester, for Stevens.

C. C. Milton, of Worcester, for defendants.

CROSBY, Justice.

These suits in equity, entered in the Supreme Judicial Court, were consolidated by order of court and heard together. An interlocutory decree overruled a demurrer in the first suit, an appeal therefrom being taken, and an interlocutory decree confirmed the master's report in each suit. A single justice, at the request of the parties, reported the cases and all questions of law therein for the consideration and determination of the full court.

The first case is brought by twelve citizens of Worcester under the provisions of G. L. (Ter. Ed.) c. 159A to restrain a violation thereof alleged to be committed in the operation of motorbuses for hire over a certain ‘Lake View Route’ so called. The only ground of demurrer in this case which it is necessary to consider is that set forth, namely, that no facts are shown which entitle the plaintiffs to relief in equity. G. L. c. 159, § 45 as amended by St. 1926, c. 392, § 1, provided that no person or railroad or railway affording service similar to that given by a railway company shall operate a motor vehicle without obtaining a license granted by the city council. It appears that in the city of Worcester the authority to grant such licenses is vested in a license board. G. L. (Ter. Ed.) c. 159A, § 1, continues this provision, and section 15 of the same chapter (formerly G. L. c. 159, § 49) provides that ‘the supreme judicial and superior courts shall have jurisdiction in equity to restrain any such violation upon petition of the department, any licensing authority, ten citizens of any city or town affected by such violation, or any interested party.’ The violation alleged is the operation without a license in that the license granted is not valid for want of proper approval by the mayor. The defendants contend that the sole remedy to correct errors of the licensing board is by a writ of certiorari. This contention cannot be sustained. Cheney v. Coughlin, 201 Mass. 204, 87 N. E. 744. In the case just cited it appeared that licenses for the sale of liquor were granted under circumstances which rendered them void. R. L. c. 101, § 8, gave ten legal voters of a city or town a right to bring a suit in equity to enjoin the illegal keeping or sale of intoxicating liquors. This court rejected the contention of the defendant that the plaintiffs' only remedy was by a writ of certiorari, and stated at page 207 of 201 Mass.,87 N. E. 744, 745: ‘It has not infrequently been held that prerogative writs will not be issued in cases where another adequate remedy has been provided by statute.’ It is plain that the ‘violation’ of any provision of chapter 159A carries the same respective meaning as ‘illegal keeping or sale’ as used in R. L. c. 101, § 8. Necessarily the ‘illegal keeping or sale’ in R. L. c. 100 prohibiting the sale of intoxicating liquor referred to sales except as authorized in the chapter, i. e. without a license. It is obvious that the court in Cheney v. Coughlin, supra, held that a sale under a license improperly issued was included within the scope of a sale without a license. In like manner the prohibited operation by the defendants in the present case without first obtaining a license, G. L. (Ter. Ed.) c. 159A, § 1, includes operation under a license that is void because not proberly issued. And this is also true because by the terms of St. 1926, c. 392, § 1 (in force at the time of the issuance of the alleged license) a license without proper approval of the mayor was not valid and hence was and is no license at all.

The plaintiff in the second case, Adelaide F. Stevens, is the owner of property over which the defendant runs its ‘Lake View Route’ under color of an easement obtained by a predecessor in title by eminent domain proceedings. She alleges, in a bill brought individually, that a trespass is being committed by the defendant in that the operation of motorbuses is not permitted by the easement. The fact that if the plaintiffs in the first case should succeed in maintaining their bill it might bring some measure of success in respect to a private right gives no substance to the defendant's third ground that the plaintiff Stevens seeks in one bill to enforce private rights as well as those of the public. No reason is suggested by the defendant street railway company why the incidental protection of a private property right should prevent this plaintiff from joining with other citizens of the city affected by a violation of G. L. (Ter. Ed.) c. 159A.

So far as the bill contains allegations respecting the private rights of the plaintiff Stevens this was incidental to the object of establishing a misdescription of the route over which a license to operate was sought; and so far as relief in respect to those private rights was prayed for this was to secure completeness of any injunction restraining illegal operation over the entire route involved. The ‘license’ issued to the receivers of the Worcester Consolidated Street Railway Company, predecessors of the defendant company, never was valid for lack of effective approval by the mayor. The master found that the only sanction by the mayor is that found in the general instructions, given several years before the grant of the license in question, that the clerk of the license board should indorse the mayor's approval by a rubber stamp on any license granted by the board (except in a case not here material) unless he was otherwise directed by the mayor. No other directions were given with reference to this particular license, and the clerk followed what had been customary procedure. The statute in effect on the date of issuance of the license was St. 1926, c. 392, § 1, which amended G. L. c. 159, § 45. The important provisionwas that any license to operate a motor vehicle for hire should ‘be subject to the approval of the mayor’ and should ‘not be valid unless such approval [had] been endorsed thereon in writing.’ St. 1926, c. 392, § 1. The city charter had an equivalent provision. The meaning of ‘approval’ as used in statutes and in city charters with reference to contracts has often been defined. With respect to the ‘approval’ by the bank commissioner of increases of the capital stock of a trust company (St. 1916, c. 37) the word ‘implies the exercise of sound judgment, practical sagacity, wise discretion and final direct affirmative sanction,’ Cunningham v. Commissioner of Banks, 249 Mass. 401, 420, 144 N. E. 447, 455; so, also, where a city charter provides that a contract made by a department is not valid without the ‘approval’ of the mayor. McLean v. Mayor of Holyoke, 216 Mass. 62, 65, 102 N. E. 929. When there is kept in mind the provision that no license is valid unless the mayor's approval is indorsed thereon in writing it is plain that there must be an exercise of judgment and discretion by that official in respect to each license. Without approval of that nature no license can be valid. It has been so held many times in substantially similar provisions in statutory charters governing the execution of municipal contracts. United States Drainage & Irrigation Co. v. Medford, 225 Mass. 467, 472, 114 N. E. 734,Parkhurst v. Revere, 263 Mass. 364, 371, 161 N. E. 599. In the case at bar the general authority given the clerk to indorse the mayor's approval was not sufficient to meet with the requirements above recited. The statute contemplates by its tersm that it is the ‘approval’ of the mayor himself in respect to each license granted that is required, and not the action of a subordinate acting under a general authority, but not under specific directions from the mayor himself after the exercise of judgment and discretion in respect to a particular license. The statute vested in the mayor a matter involving the exercise of judgment and discretion. Such a duty cannot be delegated, and a previous general authority to act will not validate subsequent action in respect to a particular matter by the person to whom the proper official has sought to transfer his power. Brown v. Newburyport, 209 Mass. 259, 265, 266, 95 N. E. 504, 507, Ann. Cas. 1912B, 495. In the case last cited a city treasurer was authorized to borrow ‘from time to time with the approval of the committee on finance.’ It was held that the word ‘approval’ as there used imposed ‘active and important prudential obligations' in respect to each loan proposed, and that a previous and general authority to a certain official to act on behalf of the committee was insufficient to validate a subsequent loan. In the grant of a license to a common carrier for hire, numerous conflicting public and private interests may be involved. The requirement of approval of various municipal contracts by the mayor is designed as a check upon ‘hasty, ill-advised, and inconsiderate actions' of departments. United States Drainage & Irrigation Co. v. City of Medford, 225 Mass. 467, 472, 114 N. E. 734, 736. It is plain that a like check was intended in the present case, and that the mayor, and not a subordinate official, was the person to exercise it in each particular case. Foss v. Wexler, 242 Mass. 277, 282, 136 N. E. 243, cited by the defendant,...