Weatherbee v. Dedham & F. St. Ry. Co.
| Decision Date | 19 May 1911 |
| Parties | WEATHERBEE et al., Selectmen v. DEDHAM & F. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
E. C Jenney, for plaintiffs.
Blodgett Jones & Burnham, for defendant.
This is a petition in equity by the selectmen of the town of Westwood to enforce compliance with a term of a street railway location as to fares. The defendant has succeeded to the rights and franchises of the Norfolk Western Street Railway Company. On August 10, 1898, after the required precedent proceedings by a majority of the directors of the Norfolk Western Street Railway Company, a street railway corporation in process of formation under our laws, an original location was granted to it by the selectmen of Westwood, authorizing it to operate a street railway in certain public ways in Westwood. On August 19, 1898, this location was accepted by the directors of the Norfolk Western Company, 'subject to all conditions and restrictions therein contained.' A certificate of organization creating the Norfolk Western Street Railway Company a corporation was issued on September 23, 1898. One clause of the location was: 'The rate of fare shall not exceed the sum of five (5) cents for any distance in one continuous trip within the limits of said town, or for a continuous trip from any point along the line of said road in said town of Westwood to its present terminus in Medfield or to its terminus in Dedham.' It does not appear under what provision of law the defendant succeeded to the location granted to the Norfolk Western Street Railway Company. We are not aware of any special act authorizing it. In each of the ways permitted in the general law, by sale or consolidation under sections 52, 53 and 54, and at receiver's sale under sections 144 and 145, of St. 1906, c. 463, pt. 3, the right acquired by the succeeding company is no more extensive or less onerous than that of the original company as to locations. In January, 1908, the rate of fare was raised above the limit prescribed in the location, and although changed several times since then has been maintained higher than there provided. Before 1908 the road had been operated at a considerable loss for a number of years, and notwithstanding the practice of strict economy an indebtedness of several thousand dollars was accumulated. Since then its deficit has increased, although there have been no allowances for depreciation, and only necessary repairs have been made.
The law governing the formation of street railway companies and the granting of locations to them in force at the time was Pub. St. c. 113. It has been decided that under this statute a restriction in an original location fixing the maximum fare to be charged for a locality covering three towns was a valid exercise of power by the selectmen, and when accepted by the directors of the street railway company became as binding upon the corporation as if inserted in a special charter of incorporation, and that subsequent legislation has not undertaken to abrogate or modify the force of such restrictions, and that they are binding upon another company succeeding to the franchises and privileges of the original company. Selectmen of Clinton v. Worcester Consolidated St. Rly. Co., 199 Mass. 279, 85 N.E. 507. It is there pointed out also that the earlier cases of Keefe v. Lexington & Boston St. Rly. Co., 185 Mass. 183, 70 N.E. 37, and Selectmen of Wellesley v. Boston & Worcester St. Rly. Co., 188 Mass. 250, 74 N.E. 355, arose under different and more recent provisions of law and are not inconsistent with this view. The location now under consideration became operative less than one month before St. 1898, c. 578, went into effect, which among other matters marked a change in the policy of the Legislature upon the subject of fares and deprived local boards of the power to regulate fares theretofore possessed by them. But there must always be some instant of time when every alteration of statute takes effect, and up to that instant the pre-existing law prevails with as much force as it ever had.
The defendant urges that the road is operated with economy, and that the fares charged are reasonable and are about the same as the average charged by other street railways in the state and that the management of the railway has not acted arbitrarily...
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