Metropolitan Home Tel. Co. v. Emerson

• Decision Date: 26 May 1909
• Citation: 88 N.E. 670,202 Mass. 402
• Parties: METROPOLITAN HOME TELEPHONE CO. v. EMERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 402

88 N.E. 670

METROPOLITAN HOME TELEPHONE CO. v. EMERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1909

COUNSEL

Boyd B. Jones and Alfred Hayes, for petitioner.

Thos M. Babson, for respondent.

OPINION

RUGG J.

This is a petition for a writ of mandamus to compel the defendant as superintendent of streets of the city of Boston to issue to the petitioner a permit to open and occupy a public street in order to enable it to lay its telephone lines under the street. The petitioner is a corporation organized under the laws of this commonwealth for the purpose of constructing maintaining and operating a telephone and telegraph system. On December 13, 1906, the board of aldermen of the city of Boston adopted an order, which purported to grant to the petitioner the right 'in, upon, over, under and along the present and future streets, avenues, alleys, viaducts and public places of the city of Boston to cause to be erected constructed and installed, and operate, maintain and repair lines of conduits, wires, cables and conductors, poles and appliances, * * * and to operate and maintain suitable and adequate apparatus and appurtenances.' The order then names more than 200 streets and squares 'in which the lines, conduits, cables, wires and conductors * * * may be laid, placed and installed,' and adds 'any and all streets, avenues, alleys and public places directly or remotely connected' with those named. Other expressions are that the petitioner 'may erect and maintain a system of conduits, poles, wires, cables and appliances,' and that the city officers must 'issue permits for distributing poles and appliances.' No specific part of any street is designated, where the conduits may be laid or poles placed. No attempt was made to comply with the provision of Rev. Laws, c. 122, § 2, as amended by St. 1906, p. 79, c. 117. No petition in writing is alleged to have been presented to the board of aldermen, and no written notices of the time and place of a public hearing upon such petition were given to owners of real estate along the ways named. No specification in writing 'where the poles may be located, the kind of poles, the height at which and the places where the wires may run' was given by the aldermen, as required by that statute. The petitioner claims that the order was valid under Rev. Laws, c. 25,§ 54, and chapter 26, §§ 2, 6, whereby the board of aldermen of a city is empowered 'to permit telephone and telegraph lines to be laid under any way or square' and to establish reasonable regulations touching the same.

The order in effect, although slightly veiled in some respects purports to give to the petitioner a right to locate, above and below all present and future streets in Boston, all such appropriate structures as may be adapted to the installation and maintenance of an electrical or other system for 'the transmission of sound, signals and intelligence.' Our statutes contemplate and authorize no such ambitious pre-emption of public ways. The policy of our Legislature, as shown in all statutes regulating the partial appropriation of public ways to such public uses as are included within the general purpose for which land may be taken from a private owner for highway uses, is to clothe the board, for the time being representing the public interests, with authority to consider and pass upon a present specific need, and not to mortgage futurity in the hope that the requirements of the public service may at some time, more or less remote, warrant the use, or for any other reason. This limitation is not to be found in express phrase anywhere in the statutes, but is one of the basic principles of our policy in dealing with public service corporations. The franchise of the petitioner to be a corporation and conduct its business came from the commonwealth, and not from the board of aldermen of the city of Boston. This order has many of the features of a franchise. But the board of aldermen was authorized only to permit or specify the location of the conduits and poles and other structures. A permit or location is different in kind from a franchise, and is inferior and subsidiary to it. Sometimes the terms of a permit from or a contract with local authorities are incorporated in a franchise (see St. 1851, p. 653, c. 159; Worcester Gaslight Co. v. Worcester, 110 Mass. 353); but the functions of a franchise cannot be performed by a permit. The conception of granting to any telephone or street railway company or any other public service corporation at once and in advance of its practical operation the right to occupy all the streets of a municipality is repulsive to our theory of local and state supervision and regulation in detail of constructions in public ways by such corporations. The power is vested in selectmen and boards of aldermen, not as representatives of the cities and towns, but as independent boards of public officers, who act in judicial or quasi judicial capacity respecting the subject-matter. This is for the reason that the Legislature has thought wise from the outset to make these corporations in the use of the streets subject to the control of the local authorities of the municipalities charged generally with the duty of maintaining them in repair. In some instances there is an appeal to a state board, but in the first instance the local board acts. A franchise involves a greater or less degree of comprehensiveness and generality, and its exercise something of time and...