M and M Transp. Co. v. Town of Wellesley

• Decision Date: 30 June 1955
• Citation: 333 Mass. 11,127 N.E.2d 794
• Parties: M AND M TRANSPORTATION CO. v. TOWN OF WELLESLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 794

127 N.E.2d 794

333 Mass. 11

M AND M TRANSPORTATION CO. v. TOWN OF WELLESLEY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 7, 1955.

Decided June 30, 1955.

LaRue Brown, Boston, Raymond H. Young, Boston, for plaintiff.

Russell J. Coffin, Boston, for defendant.

Before QUA, WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

This is a bill by a corporation engaged in the business of transporting property over the highways to enjoin the town from enforcing a new traffic regulation adopted in 1952 by the selectmen, and for a declaration that the new regulation is invalid. The case was reported by the single justice upon the pleadings and an 'agreement as to all the material facts constituting a case stated.'

The new regulation, known as § 22 of art. VII, reads, 'The use and operation of heavy commercial vehicles, having a carrying capacity of more than three tons are hereby restricted on the following named streets, during the time set forth.

'Washington Street--between Worcester Street and the Wellesley-Newton lines during the twenty-four hour period of each day.' There are some 'Exemptions' not pertinent to this case.

Material facts agreed are: The plaintiff is required to use the main highways for its motor vehicles. It is 'necessary for the efficient and commercial conduct of the plaintiff's business' or of any comparable business to use vehicles of a carrying capacity of more than three tons. Washington Street is a main highway between Wellesley and Newton, on the one hand, and Natick, on the other, and is a part of Route 16 as designated and numbered by the department of public works. No heavy commercial vehicles with a carrying capacity of more than three tons, other than motor vehicles, use the restricted portion of Washington Street, or did use it when the regulation was adopted. At the request of the town the department of public works has posted signs directing truck drivers to use routes 9 and 128. This alternative route is 1.8 miles longer than Route 16. The department has not certified the regulation under G.L. (Ter.Ed.) c. 90, § 18, as 'consistent with the public interests.'

Numerous statutes relating to the weights of vehicles and similar matters have been cited and commented upon, but we think two of them are determinative of the case. One is G.L. (Ter.Ed.) c. 40, § 22, ¹ the material words of which are, 'Except as otherwise provided in section eighteen of chapter ninety * * * the board of * * * selectmen may make rules and orders, for the regulation of carriages and vehicles used [in the town] * * *.' The other statute is c. 90, § 18, as appearing in St.1948, c. 564, § 2, to which reference is made in the statute first mentioned. The material words of section 18 are, '* * * the selectmen * * * may make special regulations as to the * * * use of * * * [motor vehicles] upon particular ways * * * provided, that no such special regulation shall be effective * * * until after the department * * * [of public works] shall have certified in writing, after a public hearing, that such regulation is consistent with the public interests; and no regulation shall be valid which excludes motor vehicles from any * * * main highway leading from any town to another * * *.'

The first of these two statutes is of long standing, its predecessors having been enacted many years before motor vehicles came into use. The predecessors of the second statute originated with St.1903, c. 473, § 14, shortly after motor vehicles had begun to come into use, and at a time when they were frowned upon in many localities. See Commonwealth v. Newhall, 205 Mass. 344, 91 N.E. 206. This statute has always contained provisions subjecting action taken under it to some...