199 Mass. 394 | Mass. | 1908
This petition is brought under St. 1906, c. 339, now St. 1906, c. 463, Part III. § 76, to compel the respondent to resume the operation of a certain part of its railway, called the Pleasant Valley line. The defendant had abandoned and discontinued the operation of this line in January, 1905; and the first question is whether the petition can be maintained under a statute passed more than a year thereafter.
This statute in no way affected the rights of the parties; it expressly provided that nothing therein contained should be “ deemed a legislative construction of any existing law or an impairment of any existing right of a street railway company to discontinue the use of tracks.” It simply provided a new remedy for’any unlawful discontinuance by giving a direct resort to the courts. It furnished a new remedy; but it impaired or affected no contractual obligations and disturbed no vested rights. As it was purely remedial in its character and did not change any existing rights, it naturally would be applicable to proceedings begun after its passage, though relating to acts done previously thereto. This is the doctrine which was declared in Foster v. Essex Bank, 16 Mass. 245, 273. It has been applied in the construction of many similar statutes, so as to make a new remedy available for the protection of a prior right or for the redress of formerly existing grievances. Bemis v. Clark, 11 Pick. 452, 454, Simmons v. Hanover, 23 Pick. 188, 194. Wood v. Westborough, 140 Mass. 403, 409. Hogers v. Nichols, 186 Mass. 440. It was the plain intention of the statute to provide a remedy for a case like this by giving redress for a wrongful discontinuance already existing as well as for any that might occur in the future. It cannot be held that the words “ if a street railway . . . discontinues the use of any track” apply merely to a future discontinuance. A somewhat similar contention was considered and rejected in Commonwealth v. Dracut, 8 Gray, 455, and Brown v. Pendergast, 7 Allen, 427. In the former case the court relied on “ the long-established rule of construing statutes according to the manifest intent of .the Legislature, though apt words to express that intent may not be used, or though such construction may not accord with the letter of the statute.” And in the latter case the court said, “We apply an old and unshaken rule in the construction of statutes, to wit, that the intention of a
When the respondent company purchased these lines of railway in 1899, it had authority under St. 1899, c. 304, to complete the railway and its equipment, and to maintain and operate the same. But there was nothing compulsory in these provisions; and the respondent would not have lost its property rights in the rails or materials or in any other real or personal estate which it had acquired, if it had entirely failed to operate the railroad. French v. Jones, 191 Mass. 522. But it did assume control of all the routes which it had bought, including this Pleasant Valley line, and continued to operate them all until it discontinued the use of this line in January, 1905.
The respondent, like all street railway companies, and like the lighting company spoken of in Weld v. Gas & Electric Light Commissioners, 197 Mass. 556, is a quasi public corporation, organized for the exercise of an important public franchise, and bound to exercise that franchise for the benefit of the public and not merely for its own profit. Shaw, C. J., in Commonwealth v. Temple, 14 Gray, 69, 76. But it has not, like steam railroads, an exclusive control and a vested right of property in the soil upon which its tracks are laid. In the original charter given to this company’s predecessor, the Newbury port and Amesbury Horse Railroad Company, (St. 1864, c. 53,) its right to lay its tracks upon the public streets was made subject to the determination of the mayor and aldermen or selectmen of the respective cities or towns, and those officers, after one year from the opening of its tracks for use, might at their pleasure revoke the location thereof, and the tracks thereupon must be taken up. Similar provisions were either contained in other street railway charters or were afterwards supplied by amendments thereto. Accordingly, this court said, in Attorney General v. Metropolitan
Some limitations have indeed been put by later statutes upon the formerly unrestrained power of location by municipal officers, and the power of final action has been conferred upon other public officers. St. 1898, c. 578, § 17. R. L. c. 112, § 32.- St. 1906, c. 463, Part III. § 66. But it still remains true that an ordinary street railway company holds its locations upon the public ways without having any estate of its own in the lands.
But this right was of course subject to legislative control. Brownell v. Old Colony Railroad, 164 Mass. 29. In 1891 it was enacted that “ Whenever in the opinion of the railroad commissioners additional accommodations for the travelling public are required upon any street railway, they may, after due notice to
In passing upon this question we have not found much assistance from the decisions of the courts of other States, either as to railroad or street railway companies, which have been called to our attention by the industry of the petitioners’ counsel. Many of them turned upon the mandatory language of the charters or other statutes or of the ordinances which were before the courts. Union Pacific Railroad v. Hall, 91 U. S. 343. State v. Hartford & New Haven Railroad, 29 Conn. 538. Mayor v. Dry Dock Railroad, 133 N. Y. 104. Flint & Père Marquette Railroad v. Rich, 91 Mich. 293. Potwin Place v. Topeka Railway, 51 Kans. 609. People v. St. Louis, Alton & Terre Haute Railroad, 176 Ill. 512. Undoubtedly a valid requirement in an order of location would be enforced, Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294, but no such question is before us. Other cases relied on by the petitioners were decided upon the ground that the
We may add that it would be difficult, in the absence of statutory requirement, to reach the conclusion that a street railway company with so small a capital' and resources so limited as those shown here should be required to operate a branch line which is not an integral part of its main system, and which has not sufficient patronage to meet its running expenses. If it were a steam railroad, it would not be required, under the decision in Commonwealth v. Fitchburg Railroad, 12 Gray, 180, to run passenger trains on such a branch; but in the case of a street railway, which does not carry freight, this means the complete disuse of its tracks. Substantially this rule was affirmed in Sherwood v. Atlantic & Danville Railroad, 94 Va. 291, and in Jack v. Williams, 118 Fed. Rep. 823. See also Ohio & Mississippi Railway v. People, 120 Ill. 200; People v. Rome, Watertown & Ogdensburgh Railroad, 103 N. Y. 95. The general rule for such cases was stated by Gray, J., in Northern Pacific Railroad v. Dustin, 142 U. S. 492, 499 : “ If, as in Union Pacific Railroad v. Hall, 91 U. S. 343, the charter of a railroad corporation expressly requires it to operate its railroad as a continuous line, it may be compelled to do so by mandamus. So if the charter requires the corporation to construct its road and to run its cars to a certain point on tidewater (as was held to be the case in State v. Hartford & New Haven Railroad, 29 Conn. 538), and it had so constructed
We cannot say that the respondent’s discontinuance of this line was “ without right or lawful excuse ” within the meaning of the statute; and it is not necessary to consider the exceptions taken by the respondent to the master’s report. The petition must be dismissed.
So ordered.