343 Mass. 674 | Mass. | 1962
The town of Barnstable and the town of Falmouth, in which is located Woods Hole, seek declaratory relief under G. L. c. 231A against Woods Hole, Martha’s Vineyard and Nantucket Steamship Authority and its three members to determine the right of the Authority to furnish transportation from Barnstable to either of the islands of Martha’s Vineyard or Nantucket. S. Volpe & Co. Inc. (Volpe) has been made a party defendant. Volpe proposes to build a pier in Hyannis harbor, which is in Barnstable, for lease to the Authority. In this aspect various binding declarations are sought, such as whether the Authority or Volpe is subject to (1) the zoning by-law of Barnstable or (2) the waterways jurisdiction of the State Department of Public Works under G. L. c. 91. Six owners of real estate in Barnstable have intervened as parties plaintiff, and the town of Nantucket
We need not pause to discuss whether the individual interveners are strictly parties. See New Bedford v. New Bedford, Woods Hole, Martha’s Vineyard & Nantucket S.S. Authy. 330 Mass. 422, 424-425. All questions are adequately raised by those who are undoubtedly parties.
The Authority dates from St. 1960, c. 701, entitled, “An Act creating the Woods Hole, Martha’s Vineyard and Nantucket Steamship Authority, defining its powers and duties, abolishing the New Bedford, Woods Hole, Martha’s Vineyard and Nantucket Steamship Authority and transferring its assets and liabilities to said newly created authority.” The Authority thereby abolished (New Bedford Authority) was created by St. 1948, c. 544, and its powers and duties were described therein and amended by St. 1949, c. 142; St. 1954, c. 449; St. 1954, c. 499; St. 1954, c. 622; and St. 1956, c. 747.
Various questions concerning New Bedford Authority soon began to come before this court. In New Bedford v. New Bedford, Woods Hole, Martha’s Vineyard & Nantucket S.S. Authy. 329 Mass. 243, it was held that New Bedford Authority was not one of the agencies which the Department of Public Utilities is authorized to supervise and regulate under Gr. L. c. 159, but that the department’s control was limited by St. 1948, c. 544, § 5 (c), to disapproving rates which New Bedford Authority might fix (pp. 247-250). In New Bedford v. New Bedford, Woods Hole, Martha’s Vineyard & Nantucket S.S. Authy. 330 Mass. 422, we held that New Bedford Authority could not abandon any of the ports mentioned in c. 544 (New Bedford, Falmouth, and the islands) but could for cause suspend service at New Bed-ford in the slack season (p. 433). In County of Dukes County v. New Bedford, Woods Hole, Martha’s Vineyard & Nantucket S.S. Authy. 333 Mass. 405,
The operation of the line to and from New Bedford was suspended during the winter of 1955-1956. See New Bedford v. New Bedford, Woods Hole, Martha’s Vineyard &
Our basic decision hinges upon the proper interpretation of St. 1960, c. 701. Section 1, as in substance did St. 1948, c. 544, § 1, says that, “In order to provide adequate transportation of persons and necessaries of life for the islands of Nantucket and Martha’s Vineyard, the Authority is hereby authorized and empowered to purchase, construct, maintain and operate necessary vessels, docks, wharves ...” and so forth. Section 3 creates the Authority a body corporate and a public instrumentality which is to consist of three persons to be appointed for three year terms as
Section 4 (a) empowers the Authority “To acquire, maintain, repair and operate a steamship line.” This is similar to St. 1948, c. 544, § 5 (a). Section 4 (e) empowers the Authority, among other things, “to contract by license, lease, charter or other arrangement for the provision of excursion service by other persons to and from the islands of Martha’s Vineyard and Nantucket from any point on the mainland of the commonwealth, when it shall be deemed necessary or desirable to serve the purposes of this act.” This section has no counterpart in the previous legislation, and is a main reliance of the Authority before us.
In § 5, relating to the issue of bonds of the Authority, we read, “Except as provided in this act no person shall operate a vessel of more than one hundred gross tons for the carriage of passengers, vehicles or freight for hire by water between the mainland of the commonwealth and the island of Martha’s Vineyard or the island of Nantucket or between said islands unless licensed or permitted in writing so to do by the Authority.” Apart from the written authorization, this resembles a provision in St. 1948, c. 544,
Section 6, entitled “Exemption from Taxation,” provides : “The exercise of the powers granted by this act will be in all respects for the benefit of the people of the com
In § 9 any deficiency paid by the Commonwealth is to be assessed, beginning with any deficiency for the calendar year 1961, as follows: Falmouth 10%; Nantucket 40% ; and County of Dukes County 50%, to be allocated as before. Section 14 creates a finance advisory board consisting of three members, elected one each by the voters of Falmouth, Nantucket, and the county. The “board shall have the power to review the annual budget of the Authority and advise the Authority members concerning any financial aspect of the operation of the Authority, and may limit or modify any advertising expenditures.”
Section 16 abolishes New Bedford Authority, and vests all its assets in the new Authority, which is caused to assume all its indebtedness and liabilities. Also by § 16 nothing contained in St. 1960, c. 701, or in St. 1948, c. 544, and its amendments “shall be deemed or construed to require that said . . . Authority provide ferry runs or transportation of passengers, vehicles or freight to or from any point on the mainland of the commonwealth to or from any other such point or to or from the islands of Martha’s Vineyard or Nantucket; provided, however, that except in cases of emergency or necessity ferry runs or such transportation shall be provided to and from the port of Woods Hole to and from said islands.” Section 17 is, “This act, being necessary for the welfare of the commonwealth and its inhabitants, shall be liberally, construed to effect the purposes thereof.” By § 20 the effective date is made January 1,1961.
If the respective titles of the two statutes are of assistance, they tend to show that the practical scope of the
As we have noted, § 1 is the same in substance as St. 1948, c. 544, § 1. We also note that no reference to Hyannis or Barnstable is to be found in either statute. So far as appears, neither Authority has hitherto furnished service at Hyannis. New Bedford Authority furnished service between the places named in the title to the act. These were the same places upon which deficiencies were assessed, and each had a member of the Authority.
It seems to us that the 1948 statute contemplated the continuation of the service hitherto furnished by Massachusetts Steamship Lines, Incorporated. As was said in New Bedford v. New Bedford, Woods Hole, Martha’s Vineyard & Nantucket S.S. Authy. 330 Mass. 422, 429-430, “It is further apparent from the engineers’ report to the commission, the commission’s report to the Legislature, and the act itself that it was expected that the authority would acquire and continue to operate the existing line, including service to all of the ports previously served.” In stating (p. 427) that any service for the islands “must have one or more termini on the mainland,” we did not, of course, say that there must be more than one such terminus.
Until the present attempt, no service has been rendered at any place not subject to the assessment of a percentage of the deficiencies and unrepresented on the Authority membership. The only places assessed by St. 1960, c. 701, § 9, are Falmouth and the islands, which are the only places represented on the membership of the Authority. We are of opinion that the Authority, subject to the conditions and powers contained in the 1960 statute, is to continue the pub-
Turning to the sections upon which the Authority relies, we observe that § 4 (e) provides for arrangements by the Authority “for the provision of excursion service by other persons to and from the islands . . . from any point on the mainland of the commonwealth.” To us this means exactly what it says, namely, service by others. Moreover, the provision is for “excursion service,” a phrase which is unique in this legislation and for which no definition is supplied. We need not undertake to determine the extent of service which is limited to “excursion service.”
The Authority contends that it would be unsound to construe the act as authorizing others to do what it cannot do itself. We do not agree. The Authority membership no longer consists of five individuals (one of whom need not come from New Bedford, Falmouth, or the islands) appointed by the Governor, with the approval of the Executive Council, but is composed of three individuals, each a resident of, and locally appointed in, one of the three places designated in the title of the act. There has been added a finance advisory board, with unlimited powers of advice and a slight veto on expenditures, which is locally elected. We have not been convinced from the language of the act that the Legislature has given blanket authorization to an Authority with members of local origin and locally chosen to enter into any Massachusetts port, for example, Boston, Gloucester, or 'Plymouth, and to bring about the exemption of real estate from local taxation (§ 6), as well as to claim rights which transcend municipal zoning provisions.
Section 5 allows the Authority to license or permit in writing the operation of vessels of more than one hundred gross tons for the carriage of passengers, vehicles or freight by water between the mainland of the Commonwealth and either island or between the islands. We fail to see how such a license or permission to do something which was in large part previously prohibited while any of New Bedford Authority’s bonds remained unpaid enlarges the operating authorization to the Authority.
Contrary to the contention of the Authority made in a footnote in its brief, we are of opinion that the purpose of reducing its deficit would not be a ease of “necessity” under § 16.
Where the action of the Authority is not authorized, its findings of fact are immaterial, and related questions of business judgment or discretion of the Authority, or arbitrary, capricious, or whimsical action do not arise. See County of Dukes County v. New Bedford, Woods Hole, Martha’s Vineyard & Nantucket S.S. Authy. 333 Mass. 405, 409.
In conclusion, it seems to us that we are asked to fill in something which, on the Authority’s contention, is an important gap in important legislation, something which is far outside the permissible bounds of the liberal construction enjoined by § 17. The precise action presently contemplated is the provision of summer service between Hyannis and Nantucket. But quite indistinguishable in
The final decree is reversed, and instead a new final decree is to be entered declaring that the defendant Woods Hole, Martha’s Vineyard and Nantucket Steamship Authority is not authorized by St. 1960, c. 701, to provide service to the islands from the town of Barnstable.
So ordered.
The town of Nantucket, after filing a motion which merely sought to intervene, has taken the position of a defendant.
This authorized the Gape Cod Branch Bailroad Company to build a pier or wharf in Hyannis harbor.
Opinion of the Justices, 334 Mass. 765, is of no present materiality.
The county commissioners were to continue to allocate the assessment upon the towns of the County of Dukes County, other than Gosnold, in the same proportions as the assessment of the county tax. Gosnold is not in a location to benefit from the project. New Bedford v. New Bedford, Woods Hole, Martha’s Vineyard & Nantucket S.S. Authy. 330 Mass. 422, 427n.
Statute 1948, e. 544, § 6, reads: “While any bonds issued by the Authority remain unpaid, no person shall operate a vessel of more than one hundred tons gross tonnage to carry by water passengers or freight between the mainland of the commonwealth and the islands of Martha’s Vineyard and Nantucket . . ..”