282 Mass. 345 | Mass. | 1933
These two cases were submitted upon an agreed statement of facts and trial by jury was waived. The defendants were found guilty, fines were imposed, and with the consent of the defendants the cases were reported. G. L. (Ter. Ed.) c. 278, § 30. Commonwealth v. Surridge, 265 Mass. 425, 426.
The material facts are these: The corporate defendant, pursuant to contract, furnished on July 9, 1931, five sightseeing automobiles, commonly known as buses, exclusively to transport members of a convention from a hotel in Boston over the highways of the Commonwealth to Lexington, Concord, the Wayside Inn, and back to the hotel. The charge was a fixed price for each automobile irrespective of the number of persons transported or the time spent on the trip. These automobiles were under control of members of the convention save as to actual operation. The corporate defendant sold no tickets, took no passengers other than members of the convention, and derived no revenue from the transaction except the stipulated price per automobile. The .corporate defendant furnished for each automobile a driver and a guide who, outside of Boston, pointed out places of interest and gave descriptive and historical information to the passengers. No one of these motor ve
Each defendant is charged with violation of St. 1931, c. 399. By § 1 a sight-seeing automobile is defined as a motor vehicle “used for the carrying for a consideration of persons for sight-seeing purposes in or from the city of Boston and in or on which automobile guide service by the driver or other person is offered or furnished.”
Section 2 is in these words: “It shall be unlawful for a person or a corporation to offer or furnish service by a sight-seeing automobile in or from the city of Boston unless said automobile is licensed hereunder and unless a certificate of public convenience and necessity is obtained as hereinafter provided, and it shall be unlawful for a person to operate such an automobile as driver in or from said city unless he is licensed so to do as hereinafter provided.” By other sections exclusive authority is vested in the police commissioner of Boston to grant the licenses for operators, and in the department of public utilities to grant certificates of public necessity and convenience as to offering or furnishing service by sight-seeing automobiles. There is in § 3 a schedule of fees to be charged for licenses of owners of sight-seeing automobiles, providing that the fees shall not be less than those established for hackney carriages and shall not exceed sums ranging from $10 for such automobile designed to carry not more than twelve persons to $50 for those designed to carry more than twenty-four persons.
It is apparent that the transactions on which these complaints rest had their beginning and end within the Commonwealth. The contract for transportation was made in this Commonwealth. The route of the sight-seeing auto
There is no doubt of the power of the General Court to delegate to the police commissioner of Boston and to the department of public utilities the powers conferred by St. 1931, c. 399. Commonwealth v. Slocum, 230 Mass. 180, 190. Bradley v. Zoning Adjustment Board of Boston, 255 Mass. 160, 171, and cases collected. Roberto v. Department of Public Utilities, 262 Mass. 583, 587. Sproles v. Binford, 286 U. S. 374, 397.
There is nothing m the record to show that the defendants ever engaged m transportation of passengers by sightseeing automobile except on this single occasion. That transportation was by virtue of a special contract and was solely for the members of the particular convention, and not for the general public. The consideration was based not on the number of persons carried but on the number of sight-seeing automobiles furnished. It is assumed that, so far as possible in the nature of things, the corporate defendant was acting as a private carrier and not as public carrier in transporting these considerable numbers of human beings. If it had been transporting merchandise, it would doubtless have been a private carrier. Smith v. Cahoon, 283 U. S. 553.
The statute by § 5 confers upon the department of public utilities power to attach to the exercise of the privilege, conferred by the certificate of public necessity and convemence, conditions as to operation and fares and to make “reasonable rules, orders and regulations govermng the operation and fares of sight-seeing automobiles carrying persons in or from the city of Boston.” Commonly the fixing of rates for transportation of goods or of passengers by legislative authority is confined to public carriers and does not extend to private carriers. Michigan Public Utilities Commission v. Duke, 266 U. S. 570, 576, 578. Frost & Frost Trucking Co. v. Railroad Commission of California, 271 U. S. 583, 592. Smith v. Cahoon, 283 U. S. 553, 562-563.
There are other factors to be considered in determining
The binding authority of Smith v. Cahoon, 283 U. S. 553, and the cases there cited, is recognized to the effect that the Legislature cannot convert a private carrier of merchandise into a common carrier. The statute here assailed does not seem to us to fall under that condemnation. As applied to these defendants, it relates to a matter of such public concern touching the safety of travel on
The reasons already stated lead to the conclusion that the defendants are not deprived of the equal protection of equal laws. That principle is fundamental under the Constitutions of both the Commonwealth and the United States. A necessary corollary of that principle is that reasonable classification is not discrimination and does not create inequality before the law. Vigeant v. Postal Telegraph Cable Co. 260 Mass. 335, 337-341, and cases collected and reviewed. Commonwealth v. Higgins, 277 Mass. 191. New York v. Zimmerman, 278 U. S. 63, 72, 73, 75. Silver v. Silver, 280 U. S. 117, 123-124. Carley & Hamilton, Inc. v. Snook, 281 U. S. 66, 73. Sproles v. Binford, 286 U. S. 374, 396. The statute here attacked applies only to sight-seeing automobiles carrying people for hire in or from Boston in or on which “guide service by the driver or other person is offered or furnished.” That classification cannot in our opinion be pronounced unreasonable. It may have been thought desirable in such cases to require license and certificate to the end that competent guide service might be assured. The service of a guide may also have relation to considerable variations in the speed of the automobile at places where other travellers would be inconvenienced, to interference with other traffic on the highway, and to causing the attention of other travellers to be diverted, and thus the danger to all upon the highway enhanced. Commonwealth v. Libbey, 216 Mass. 356. Brest v. Commissioner of Insurance, 270 Mass. 7. Bain Peanut Co. of Texas v. Pinson, 282 U. S. 499. Continental Baking Co. v. Woodring, 286 U. S. 352.
The statute is not so arbitrary or unreasonable as to be repugnant to rights secured by the Constitution of the
The cases at bar as to every point raised under the Federal Constitution seem to us to be within the protecting authority of Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U. S. 335; Sproles v. Binford, 286 U. S. 374, and Stephenson v. Binford, 287 U. S. 251.
The circumstance that the individual defendant had been employed to operate motor vehicles known as motor buses for the corporate defendant on its regular routes and at such other times and places as it might direct does not show that the statute violates his constitutional rights. He was operating this particular sight-seeing automobile, which in our opinion was being operated contrary to law. He had no license for that purpose. He therefore was amenable to the statute. Commonwealth v. Potter, 254 Mass. 271.
In each case the entry may be
Judgment affirmed.