New York, N.H.&H.R. Co. v. Deister

• Decision Date: 29 June 1925
• Parties: NEW YORK, N. H. & H. R. CO. v. DEISTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 178

148 N.E. 590

NEW YORK, N. H. & H. R. CO.

v.DEISTER.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1925.

Appeal from Superior Court, Suffolk County; Henry T. Lummus, Judge.

Suit by the New York, New Haven & Hartford Railroad Company against Fred A. Deister to restrain defendant from operating a motor vehicle for carriage of passengers between Boston and Brockton or intermediate points, unless he obtains license therefor. From interlocutory and final decrees for plaintiff, defendant appeals. Affirmed.D. B. Pattison, of Boston, for appellant.

Joseph Wentworth, of Boston, for appellee.

RUGG, C. J.

The plaintiff operates a railroad between Boston and Brockton through the intermediate municipalities of Milton. Quincy, Braintree, Randolph, Holbrook and Avon under a valid franchise conferred by this commonwealth. It has a large amount of property invested in this enterprise, on which it pays a considerable annual tax. It has complied with all controlling laws and in the exercise of its franchise operates trains as a common carrier of passengers for hire. The defendant operates motor vehicles known as ‘motor busses or coaches' for the carriage of passengers for hire on public highways between Boston and Brockton, having a fixed terminus in each city. The defendant has no license for the operation of such motor vehicles in the city of Boston or in any intervening municipality. It has no license granted and approved according to law in Brockton. The route of the defendant's motor vehicles parallels in general the railroad of the plaintiff between Boston and Brockton. The competition of the defendant causes a substantial loss of passenger revenue to the plaintiff.

[1] The operation by the defendant of his motor vehicles constitutes ‘transporting passengers for hire as a business between fixed and regular termini,’ as those words are used in G. L. c. 159, § 45. Those words are not confined to termini within a single city or town. That was decided in Commonwealth v. Theberge, 231 Mass. 386, 121 N. E. 30, when the words of the statute differed in no material respect, so far as this point is concerned, from the present phraseology. It follows that the defendant, in operating his motor vehicles, is violating G. L. c. 159, §§ 45, 46, whereby such operation is prohibited without the required licenses. He is thereby subject to prosecution for the misdemeanor created by G. L. c. 159, § 49.

The constitutionality of the several sections of the statute already cited has been established. It requires no further discussion. Commonwealth v. Slocum, 230 Mass. 180, 119 N. E. 687;Burgess v. City of Brockton, 235 Mass. 95, 99, 126 N. E. 456;Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596.

The mere fact that the defendant is committing a crime in the operation of his motor vehicles affords no justification for a private individual to invoke equitable relief by injunction. The ordinary processes of the criminal courts offer the remedy provided by law. Jenks v. Williams, 115 Mass. 217;Rudnick v. Murphy, 213 Mass. 470, 471, 100 N. E. 643, Ann. Cas. 1914A, 538;O'Keefe v. Sheehan, 235 Mass. 390, 126 N. E. 822. On the other hand, the single fact that the act of a defendant may subject him to criminal prosecution is not a bar to the issuance of an injunction when required by the general principles of equity jurisprudence. The prevention of continuing and irreparable injury to property is a familiar ground for the interposition of equitable relief by way of injunction. The circumstance that the act enjoined may also constitute a crime does not stay the equitable relief. Vegelahn v. Guntner, 167 Mass. 92, 99, 44 N. E. 1077,35 L. R. A. 722, 57 Am. St. Rep. 443. This principle is illustrated by cases where an injunction is issued to prevent prosecution for crime under an unconstitutional statute. Shuman v. Gilbert, 229 Mass. 225, 118 N. E. 254, L. R. A. 1918C, 135, Ann. Cas. 1918E, 793, and cases there reviewed.

The agreed facts disclose irreparable injury to the plaintiff in the loss of revenue derived from patronage diverted by the defendant through his illegal conduct in operating busses without the licenses required by law.

The plaintiff may maintain its suit for an injunction. It has a franchise right to transport passengers between the points named. That right carries with it heavy obligations to the public. Although that franchise right is not exclusive against other grants authorized by the Legislature, it is exclusive against one conducting competition, as is the defendant, without a franchise or license and contrary to law. This principle is recognized and discussed in Charles River Bridge v. Warren Bridge, 6 Pick. 376, 397, 398, 399. It is upheld by the great weight of authority. Puget Sound Traction, Light & Power Co. v. Grassmeyer, 102 Wash. 482, 173 P. 504, L. R. A. 1918F, 469;Memphis St. R. Co. v. Rapid Transit Co., 133 Tenn. 99, 179 S. W. 635, L. R. A. 1916B, 1143, Ann. Cas. 1917C, 1045;Memphis St. R. Co. v. Rapid Transit Co., 138 Tenn. 594, 198 S. W. 890;Brooklyn City R. Co. v. Whalen, 191 App. Div. 737, 182 N. Y. S. 283, affirmed 229 N. Y. 570, 128 N. E. 215;Holzbauer v. Ritter, 184 Wis. 35, 198 N. W. 852;Houlton v. Titcomb, 102 Me. 272, 66 A. 733,10 L. R. A. (N. S.) 580, 120 Am. St. Rep. 492;Smith v. Harkins, 38 N. C. 613, 619,44 Am. Dec. 83;Farmers' & Merchants' Co-op. Tel. Co. v. Boswell Tel. Co., 187 Ind. 371, 119 N. E. 513;Millville Gas Light Co. v. Vineland Light & Power Co., 72 N. J. Eq. 305, 307, ...