City of Fall River v. Public Service Commissioners

228 Mass. 575

• Court: Massachusetts Supreme Judicial Court
• Decided: December 8, 1917
• Status: Published

Opinion

Braley, J.

It appears among the terms of the grant of location to the Globe Street Railway Company, to whose franchises and obligations so far as involved in the cases at bar the defendant company has succeeded, that the company was “to construct, electrically equip, and maintain its tracks ... on Slade’s Ferry Bridge . . . according to the plans on file,” subject to the conditions that the company, its successors and assigns “shall, so long as its tracks continue to be on said . . . bridge, keep in repair, at its own expense, all of the roadway of said bridge, for its entire length, to the satisfaction” of the city engineer and the surveyor of highways, and shall furnish a bond “for the faithful fulfilment of the terms and conditions of this order.” The order was passed on October 21,1895, and, the bond having been given and approved and the location having been accepted and continuously used as a part of its railway system, the company and its successors were bound to comply with this condition. Pub. Sts. c. 113, § 7. R. L. c. 112, § 11. Mayor & Aldermen of Worcester v. Worcester Consolidated Street Railway, 192 Mass. 106, 113, 115.

But, as pointed out in Springfield v. Springfield Street Railway, 182 Mass. 41, the Legislature may modify or annul a location of this nature without violation of any constitutional provision. By St. of 1898, c. 578, § 11, street railways were relieved “from all obligation thereafter to keep any portion of the surface material of streets, roads and bridges in repair, unless the obligation so to do had been imposed in a grant of an original location, which the statute defined to mean the first location granted to the company in the city or town as to whose streets, roads or bridges there might be a question.” Worcester v. Worcester Consolidated Street Railway, 182 Mass. 49, 52.

The agreed facts show that the location in question was not the first or original location, and neither the company nor its successor was required after the passage of the statute to reimburse the plaintiff city for expenditures in making repairs. The city however contends that the St. of 1911, c. 552, superseded the St. of 1898, c. 578, § 11, by expressly requiring the company and its successors to make such repairs as might be needed. The St. of 1911, c. 552, amends St. of 1910, c. 654, § 6, and when the original and amendatory acts are read in conjunction it is manifest that the St. of 1910, c. 654, § 1, provides solely for “the reconstruction of the joint railroad and highway bridge, commonly known as Slade’s Ferry Bridge, . . . the old Colony Railroad Company, its successors or assigns, shall reconstruct said Slade’s Ferry Bridge and locate the same at a point northerly thereof, but not exceeding one hundred feet therefrom, in the manner hereinafter stated. . . . The said reconstructed bridge'shall be of sufficient width to provide two tracks for the railroad part and also two tracks for street railways on the highway part so that two street cars may conveniently meet and pass each other thereon while going in opposite directions; and due provision shall be made for the acommodation of foot passengers.” It is only upon completion of the new bridge authorized by the statute that § 6 as amended becomes operative, and the old bridge built under St. 1872, c. 295, is to be discontinued for “highway and railroad purposes.” It is not contended that the new bridge has been built, with the approaches and ways, and opened for use as provided in St. 1910, c. 654, -as amended, which contains no repeal of St. 1906, c. 463, Part III, § 79, recodifying R. L. c. 112, § 44, which re-enacted St. 1898, c. 578, § 11. And the St. of 1911, c. 552, is inapplicable, that "Any street railway company owning the tracks on- the highway part of the old Slade’s Ferry Bridge, shall have the right to lay double tracks on the highway part of said reconstructed bridge and to connect its tracks with the same on both sides of the river . . . .subject, however, to all the conditions as to fares and other matters mentioned in the grant of location to the Globe Street Railway Company by the board of aldermen of the city of Fall River ... on the old Slade’s Ferry Bridge, which are hereby approved and confirmed; and all successors or assigns of said Globe Street Railway Company shall be bound by and subject to the said conditions.”

The grant of location contained the further condition, the performance of which also was secured by the bond, that the railway company will sell six tickets for a sum not exceeding twenty-five cents, “each of which tickets shall entitle a passenger to one ride ■over said Company’s lines, in this city, on as favorable conditions as their passengers are now carried. The fares for passengers without tickets are not to be affected by the above rate for tickets.” And this provision has not been complied with, by the company since March 15, 1917. But the St. of 1913, c. 784, with certain exceptions not applicable in the present case placed the subject of fares on all street railways under the exclusive control of the public service commission. It provides in § 29 that "This act shall be deemed and construed as a remedial act and in enlargement and extension of all previous acts and existing laws conferring upon or vesting in the commission any jurisdiction, powers or discretion with respect to any subject or matter treated in this act,” and "... all acts and parts of acts which would in any way limit or prevent the exercise to the fullest extent of any of the jurisdiction, powers, authority or discretion delegated herein to the com mis-* sion are hereby repealed.”

' The statute being constitutional and the powers of the commission plenary over the regulation and establishment of fares on street railways, independently of whatever conditions may have been imposed in antecedent grants of location by selectmen of towns or municipal boards, Arlington Board of Survey v. Bay State Street Railway, 224 Mass. 463, 469, the decision under which the "four and one sixth cent ticket sold in strips of six tickets for twenty-five cents in the City of Fall River” was withdrawn and the refusals to give the rulings requested by the plaintiff disclose no errors of law.

If from the allegations of the petition, admitted by the demurrer, it is to be assumed that an order was entered in conformity with the decision, the inquiry under St. 1913, c. 784, §§ 20, 21, whether an increase of fare is necessary “in order to obtain a reasonable compensation for the service rendered,” is primarily a question of fact. It is not limited to any particular part of the system which if operated by itself might be found to be more than self sustaining. And the question whether the company should be permitted to withdraw the commutation tickets called for the exercise of the sound discretion and judgment of the commission, based on the evidence of the company’s financial condition, and ability to serve efficiently the public dependent upon the maintenance of its entire system of intercommunication and transportation. We are unable to perceive on the record before us any conclusions of fact, in so far as conclusions of fact are involved, which were unlawful. It is only where “any rulings or orders of the commission . . . are unlawful” that this court in equity can “annul, modify or amend” them “to the extent only of such unlawfulness.” St. 1913, c. 784, § 27. Bulkeley v. New York, New Haven, & Hartford Railroad, 216 Mass. 432, 433. The plaintiff, on whom the burden rests, having failed to show reversible error in either the suit in equity or the action at law, the result is that in the first case the decree of the single justice sustaining the demurrer and dismissing the bill should be affirmed with costs of the appeal, and in the second case judgment is to be entered for the defendant.

Ordered accordingly.