Murphy v. Worcester Consol. St. Ry. Co.
| Decision Date | 16 June 1908 |
| Citation | 199 Mass. 279,85 N.E. 507 |
| Parties | MURPHY et al. v. WORCESTER CONSOL. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Geo E. O'Toole, for plaintiffs.
Warren Garfield & Whiteside and Clement R. Lamson, for defendant.
This is a bill in equity brought by the selectmen of the town of Clinton to compel the defendant to carry pupils in the Worcester Normal School, in Holy Cross College in the Worcester Business Institute, and in other schools in the city of Worcester, between Clinton and these schools, at one-half of the regular fare charged to other passengers. The defendant has succeeded to the property, franchises liabilities and obligations of the Worcester & Clinton Street Railway Company, through a conveyance from this corporation to the Leominster & Clinton Street Railway Company, and another conveyance from the last-named corporation to the defendant. In the grant of location from the selectmen of Clinton to the Worcester & Clinton Street Railway Company, which was accepted by that company on November 9, 1897, is this provision: 'Said company further agrees to provide to pupils in attendance upon the public schools, the State Normal School of Worcester or any school in Worcester, transportation to such pupils at half price while going to and from school.'
The main question in this case is as to the validity of this restriction. The defendant contends that its requirement is invalid and unconstitutional, that it creates an arbitrary and unreasonable discrimination between different classes of the traveling public, in violation of articles 6 and 7 of the Declaration of Rights in our state Constitution; and that it violates the provisions of the fourteenth amendment to the Constitution of the United States in that its effect is to deny to the defendant the equal protection of the laws and to deprive it of its property without due process of law and without just compensation. Lake Shore & Michigan Southern Railway v. Smith, 173 U.S. 684, 19 S.Ct. 565, 43 L.Ed. 858. But it must first be considered whether the defendant is entitled to raise this question.
It does not expressly appear upon the record when or how the Worcester & Clinton Street Railroad Company was organized, but as was stated in American Steel & Wire Co. v. Bearse, 194 Mass. 594, 600, 80 N.E. 623, we have judicial knowledge that it must have been organized under the laws of this commonwealth, and that its organization was not under a special charter. Having regard to its name and to the fact averred in the bill and admitted in the answer that its location in Clinton was accepted in November, 1897, it is almost a necessary inference that its organization was effected at about that time. But we are not left to inference; for the agreed statement of facts refers to the annual reports of the board of railroad commissioners. That report of January, 1899, for the year ending September 30, 1898, shows that this corporation was organized during that year, under the general law.
The general law then in force as to such organizations was contained in Pub. St. 1882, c. 113, § 2 et seq. The repeal of section 7 and the amendment of section 8 of this chapter in 1898 did not take effect until October 1, 1898, and we need not consider the new provisions which then became in force. St. 1898, p. 749, c. 578, §§ 26-28. See, also, Rev. Laws, c. 112, § 2 et seq.; St. 1906, p. 588, c. 463, pt. 3, § 3 et seq. Under these sections of Pub. St. 1882, c. 113, the first thing to be done in the formation of a street railway company was the signing by 15 or more persons of written articles of association with the intention of forming a corporation as therein provided. The directors named in these articles might then petition the board of aldermen or the selectmen for a location of the tracts of the proposed railway in each of the cities or towns through which the road was to run, and those officers might either refuse such location or grant the same or any portion thereof under such restrictions as they deemed that the interests of the public might require. It was only after such locations under such restrictions, if any, had been granted and accepted within 30 days by the directors named in the articles of association for the projected corporation that the corporation could be established or the first meeting be called. Pub. St. 1882, c. 113, §§ 7, 8. The section last cited says in terms: 'When the tract or tracts of the proposed company have been so located, the corporation may be established, and the first meeting shall be called.' Manifestly the certificate of incorporation under Pub. St. 1882, c. 112, § 44, and chapter 113, § 8, could not be issued until all these provisions had been complied with, and the fact of such compliance shown to the proper public officers. And it is equally plain that the effect of these provisions was that the granting and acceptance of the locations under such lawful restrictions as might have been imposed by the public officers who had the power to grant the locations and to impose the restrictions were made conditions precedent to the grant of the franchise to be a corporation. They were made that conditions upon which the corporation came into existence and accepted its franchise. If these restrictions were originally lawful, and if they have not been withdrawn or affected by subsequent modification thereof, the corporation cannot, while it continues to exercise its franchises, complain of their enforcement. It is as if the corporation had been created by a special charter containing the same restrictions. The corporation can raise no question of the constitutionality of a proceeding in accordance with the charter which it was content to accept. Holmes, J., in Rockport Water Co. v. Rockport, 161 Mass. 279, 37 N.E. 168. It has come into being, and has consented to come into being, subject to these restrictions and cannot be heard to complain of them. Interstate Consolidated Railway v. Massachusetts, 207 U.S. 79, 84, 28 S.Ct. 26, 52 L.Ed. 111, and cases there cited.
But in what has thus far been said we have been dealing only with lawful restrictions. If in the granting of a location to a projected corporation the public officers who made the grant has sought to impose restrictions which were simply unlawful, either because they required the preformance of a forbidden act or because they wholly transcended the scope of the authority of the officers to impose, doubtless such restrictions could not be enforced; and the question how far the grant of the location would be deemed to be valid in such a case is not before us. The general doctrine is that the location would be held to be valid, the attempt to impose an unlawful restriction being a mere nullity. Keefe v. Lexington & Boston Street Railway, 185 Mass. 183, 185, 70 N.E. 37; Worcester v. Worcester Consolidated Street Railway, 192 Mass. 106, 78 N.E. 222; Fisher v. McGirr, 1 Gray, 1, 61 Am. Dec. 381. We do not doubt that the restrictions sought to be enforced in any particular case must be within the general jurisdiction of the municipal officers. But under the legislation then in force the board of aldermen or the selectmen had the power to deal with the subject of the fares to be charged, by imposing such restrictions thereon as they deemed reasonable and for the public interest; and the acceptance of the location subject to such restrictions by the directors of the proposed corporation and the subsequent creation of the corporation upon such acceptance must be taken to be an admission by the corporation that the restrictions are reasonable and for the public interest, and in popular language might be called, as in reality it would be, a consent or agreement on its part to be bound by them. And this is the doctrine of our statutes. In Pub. St. 1882, c. 113, § 45, after provisions in the two preceding sections for regulation of the rates of fare to be charged by street railway companies, it was enacted that nothing contained in those sections 'shall be held to authorize a company or said board [of railroad commissioners] to raise the rate of fare or the price of tickets above the rate or price established for a locality by agreement made as a condition of location or otherwise between a company or its directors and the mayor and aldermen of a city or the selectmen of a town, except by a mutual arrangement with such mayor and aldermen or selectmen.' This is a legislative recognition of the right of the local boards to deal under section 7 with the subject-matter of fares. And see St. 1864, p. 161, c. 229, § 26; St. 1871, p. 737, c. 381, § 35; St. 1874, p. 31, c. 29, § 6. So this court, speaking through the Chief Justice, said that this statute recognized the validity of such agreements, though it was decided that after the enactment of St. 1898, p. 743, c. 578, § 13, the municipal officers, in granting locations to a street railway company, could not impose a condition regulating and restricting the fares to be charged. But we have already seen that this later statute does not affect the question before us. And the confirmation of prior locations in the last sentence of St. 1898, p. 743, c. 578, § 13, indicates at least that the validity of such restrictions as are now before us was not intended to be impaired. Mayor of Worcester v. Worcester Consolidated St. Ry., 192 Mass. 106, 78 N.E. 222.
It is doubtless true that the municipal officers, in granting locations and in imposing such restrictions as they deem to be required by the interests of the public, act as public officers exercising a quasi judicial authority, and not as agents of the city or town driving a bargain with the promoters of a projected railway. Hewett v. Canton, 182...
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