327 Mass. 450 | Mass. | 1951
By this bill in equity the department of public utilities seeks enforcement of an order of the department requiring the defendant, a common carrier, to resume operation of motor vehicles for the carriage of passengers for hire between Taunton and Norton. G. L. (Ter. Ed.) c, 25, § 5. The case is reserved and reported without decision upon the bill of complaint, the answer, and a statement of agreed facts. G. L. (Ter. Ed.) c. 211, § 6; c. 231, § 111.
On May 22, 1928, the adjacent municipalities of Taunton and Norton granted to the defendant licenses to operate motor vehicles for the carriage of passengers for hire over
For some time before September 18, 1949, the defendant had numerous conferences with the department relative to such discontinuance, and the department, acting under G. L. (Ter. Ed.) c. 159A, § 5, issued a temporary license to another common carrier for the same route. The second carrier operated until November 17, 1949, when it became unable to continue because of failure to obtain the municipal licenses required under G. L. (Ter. Ed.) c. 159A, .§ 1, as appearing in St. 1949, c. 297, § 11. On November 10, 1949, the department ordered the defendant to resume operation beginning November 18, 1949. The defendant’s contention is .that operation under this particular certificate had been entirely abandoned, and that the department lacks authority to order resumption.
The defendant was incorporated under Spec. St. 1918, c. 188. Eastern Massachusetts Street Railway v. Trustees of Eastern Massachusetts Street Railway, 254 Mass. 28. The period of public control therein provided, after four extensions, has expired. St. 1928, c. 298. St. 1933, c. 108. St. 1938, c. 173. St. 1943, c. 98.
General Laws (Ter. Ed.) c. 159, § 12, reads: “The department shall, so far as may be necessary for the purpose of carrying out the provisions of law relative thereto, have general supervision and regulation of, and jurisdiction and control over, the following services . . . and all . . . companies furnishing or rendering any such service or services ...(b) The carriage of passengers for hire upon motor vehicles as provided in chapter one hundred and fifty-nine A, in section seventy A of chapter one hundred and sixty and in section forty-four of chapter one hundred and sixty-one, but only to the extent therein provided.” Section 70A of c. 160 has no present bearing. Section 44 of c. 161,
In G. L. (Ter. Ed.) c. 161, § 2, appears the statement: “Street railway companies shall be subject to this chapter and chapter one hundred and fifty-nine.” In G. L. (Ter. Ed.) c. 159, § 16, it is provided: “If the department is of opinion, after a hearing had upon its own motion or upon complaint, that the regulations, practices, equipment, appliances or service of any common carrier are unjust, unreasonable, unsafe, improper or inadequate, the department
The defendant states in its brief, and it is a matter of common knowledge, that the defendant operates a “large number of separately licensed and certificated routes in various cities and towns in the eastern part of the Commonwealth.” It is argued by the defendant without citation of authority that a common carrier of passengers by motor vehicle has an absolute right to retire from the operation of the route specified in any given certificate without respect to any other certificates the carrier may hold. We find ourselves unable to subscribe to this argument. We are of opinion that it is the carrier’s system as a whole which is to be considered. So regarded, the defendant has not effected a total abandonment or discontinuance, if there ever can properly be such an act without due authorization, but has attempted, solely upon its own authority, to withdraw from one small part of its territory. Compare Brownell v. Old Colony Railroad, 164 Mass. 29.
The defendant concedes that to the extent it is operating under any particular license and certificate it is subject to reasonable regulation by the department under G. L. (Ter. Ed.) c. 159, § 16, with respect to the service rendered on the route involved. See Burgess v. Mayor & Aldermen of Brockton, 235 Mass. 95, 102. From what we have said, this seems to be too restricted a conception of the defendant’s rights and obligations, which are to be regarded not piecemeal by the certificate but rather comprehensively according to the entire range of its activities viewed as a whole. We think that § 16 applies to this case. We do not understand that any contention is made that procedure under that section has not been observed.
We express no opinion as to the effect which might be given to G.. L. (Ter. Ed.) c. 159, § 12, if the rights of the
Great stress is placed by the defendant upon Selectmen of Amesbury v. Citizens Electric Street Railway, 199 Mass. 394. For present purposes it is enough to say that the court, while pointing out that the railway, as a public service company, was subject to legislative control (page 398), did not discover any pertinent enactment. Such an enactment is not lacking in the case at bar. See Boston, Worcester & New York Street Railway v. Commonwealth, 301 Mass. 283, 288.
The defendant is not aided by its compliance with G. L. (Ter. Ed.) c. 161, § 111.
The record discloses • no reason for the action of the defendant. No question is presented of the operation of this part of the defendant’s system at a loss. See Brownell v. Old Colony Railroad, 164 Mass. 29, and cases collected in 10 A. L. R (2d) 1121.
A final decree is to be entered ordering the defendant to comply with the order of the department, dated November 10, 1949, that the defendant resume the operation of motor vehicles for the carriage of passengers for hire between Taunton and Norton, under certificate numbered 381, issued on July 5, 1928.
So ordered.
The stockholders did not accept the provisions of St. 1948, c. 558.
“Any company, with the approval of the department, may acquire, own and operate, for the transportation of passengers or freight, motor vehicles not running upon rails or tracks, but in such operation shall be subject to chapters one hundred and fifty-nine A and "one hundred and fifty-nine B, so far as applicable.” G. L. (Ter. Ed.) c. 161, § 44, as amended by St. 1934, c. 264, § 4.
“All companies shall furnish the public with full information, by notice posted for seven consecutive days prior to the date when the same are to take effect in the cars oh the lines affected, of any intended change in the running of cars, or the discontinuance of any Une, or any change in the general public service of said companies. ...”