Opinion of the Justices to the Senate

300 Mass. 602 | Mass. | 1938

On April 8, 1938, the order was transmitted to the Justices, who, on April 20, 1938, returned the following answers :

To The Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions in an order adopted on April 5, 1938, copy whereof is hereto annexed.

The questions concern a law proposed for adoption by an initiative petition under "The Initiative. II. Initiative Petitions.” of art. 48 of the Amendments to the Constitution. The proposed measure relates to public stands for the use of taxicabs and motor vehicles for hire in cities and towns; it is to take effect only in such cities and towns as shall accept the provisions of the act. It is recited in the order that, at present, the provisions of law touching the subject of the proposed measure differ in Boston from those prevailing in other cities and towns. The proposed measure, if adopted, will be uniform in its operation in all cities and towns throughout the Commonwealth. It may be accepted by any city or town. It is not unequal in its application because the licensing authority may be composed of different officers in different cities and towns, nor because its adoption might change the law more in some cities or towns than in others. The result would be an unvarying law for all parts of the Commonwealth giving power to each city and town to do the same thing. This is a measure which may be proposed under the initiative provisions of art. 48 of the Amendments to the Constitution, and which is not restricted to a particular city even though, as stated in the order, it may effect a change of the law for the city of Boston only. Mount Washington v. Cook, 288 Mass. 67, 73, 74. The proposed measure is quite distinguishable from the one under consideration in Opinion of the Justices, 294 Mass. 607.

The proposed measure does not deal with private property. It purports only to regulate the public use of highways within the limits of the public rights. If the measure should be adopted, any private owner whose rights in the fee of the street may be prejudiced by some badly conceived scheme of establishing stands will find those rights unimpaired. The proposed measure, if adopted, would authorize cities and towns to establish parking regulations for taxicabs on public highways. Such regulations must be reasonable and must not encroach on private rights. The rights of those owning land abutting upon highways, and having title to the fee in land subject to the easement of public travel acquired by the laying out of highways, are established and are carefully guarded. Commonwealth v. Morrison, 197 Mass. 199. Opinion of the Justices, 297 Mass. 559. Burrell v. Checker Taxi Co. 287 Mass. 108, 113.

The right to engage in the business of transporting people and merchandise for hire upon public ways is subject to reasonable control under the police power. The distribution of stands for taxicabs in various parts of a city or town may best serve the public convenience. A regulation of this nature “tends to the control of public traffic, protects persons from annoying solicitation, prevents confusion, disorder and danger in the streets, and is a reasonable regulation.” Commonwealth v. Rice, 261 Mass. 340, 345. Morley v. Police Commissioner of Boston, 261 Mass. 269. These decisions recognize the propriety of taxicab stands established under reasonable regulation within public ways. It is an implication of this regulation of public travel that such stands must not interfere with the rights of abutters. These uses of a highway are subject to reasonable regulation in the interests of public travel. The stands to be established under the proposed measure must not interfere with the right of access and egress to and from his premises by an abutting owner. Any regulation of traffic must be reasonable. The stands must be so located as not to cause intolerable annoyance and inconvenience to abutting owners. Any unwarrantable interference with the rights of an abutting owner would be invalid. Opinion of the Justices, 297 Mass. 559. The proposed measure does not imply that the stands may be established in violation of the rights of abutters. The implications of the proposed measure are that the public authorities will act reasonably with reference to the rights of abutters.

The proposed measure does not authorize the exercise of the right of eminent domain. It is simply a regulation of the easement of public travel already acquired by the laying out of streets and highways. It does not authorize any change in the rights of owners of the fee in the highway. Pierce v. Drew, 136 Mass. 75. Centebar v. Selectmen of Watertown, 268 Mass. 121.

Question 1 is answered “Yes.” Questions 2, 3 and 5 are answered “No.” Question 4 is not predicated upon the terms of the proposed measure. As already stated nothing can be done under that measure except that which is reasonably incident to public travel. No part of a highway can be appropriated to the private uses of persons other than abutting owners. Therefore the question is answered “No.”

Arthur P. Rugg.

Fred T. Field.

Charles H. Donahue.

Henry T. Lummus.

Stanley E. Qua.

Arthur W. Dolan.

Louis S. Cox.