East Boston Ferry Co. v. Mayor of Boston

Chapman, C. J. The St. of 1852, c. 244, § 2, regulating the tolls which' the Ferry Company may charge, is very explicit in its provisions. The first clause binds the company to furnish all such accommodations for transportation as the mayor and — 492 — aldermen for the time being shall from time to time consider that the public accommodation requires. This provision consti tutes the mayor and aldermen a tribunal whose jurisdiction is final in respect to that matter. Whatever accommodations they may in their discretion require, the company must furnish. The next clause provides that the company shall be allowed to collect and receive such tolls as the mayor and aldermen shall determine. This makes it the duty of that board of officers to establish rates of toll; and if it stood alone and unrestricted, the nterests of the company in that respect would be committed to their discretion. But the legislature did not see fit to do this. They added another clause, which was evidently intended to protect the interests of the company, by placing an absolute limit upon the power of the board. It provides that the rates of ferriage shall never be so much reduced as to reduce the yearly dividend of the company to an amount less than eight per cent, on the amount of capital stock invested. A reduction of the tolls below this limit violates this provision, and is an act in excess of the authority conferred upon the board. And if the rates of toll are once properly established, but afterwards become insufficient, it is clearly implied that upon the application of the company the board shall, from time to time, establish new rates which shall be within the limits of their authority. Such a construction is required by the obvious policy of the act, which is, to protect the interests of the company as well as to provide for the accommodation of the public. It is said in behalf of the board, that the duty imposed upon them is of a judicial nature, and that their decision, made in good faith, is final. But this does not take into view the limitation put by the act upon their authority. It assumes that they have as full power to reduce the tolls below the prescribed limit as to regulate them at or above that standard. This is plainly an error It is further said that it may be impossible for the company to earn enough to amount to eight per cent, upon their capital stock invested, out of the traffic existing between Boston and East Boston. It is quite obvious that this may be true; and — 493 — that there may be such a lack of business as to make the investment unprofitable at any rates of toll. The legislature, when framing the act, could not have failed to see that this might happen, and that the tolls might, under its provisions, be raised so high as nearly or quite to deprive the company of all patronage. In that event the enterprise would prove to be a failure, and the company would be compelled to abandon it and dispose of their property as they best could. And from the nature of the enterprise it must have been obvious to all parties interested that there would be some risk that the profits would fall short of eight per cent. If this should happen through lack of business, the consideration that a high rate of tolls tends to diminish patronage and income would tend to restrain the company from asking to have them raised to a very high rate, and to be satisfied with a rate that yielded less than eight per cent. If, on the other hand, the rates should be fixed so high as to produce more than eight per cent., (a rate of income which the legislature has deemed to be reasonable, in view of all the risks to be run,) the mayor and aldermen may lower them, from time to time, so as to keep the income down to that limit. In view of the whole matter, the fair interpretation of the clause is, that the rates shall be so fixed that upon the current business of the company they shall have a right to receive, at least, the prescribed income. If the effect of this should be to diminish their business and make a further increase of rates necessary, they will be entitled to a further increase. If evils shall be produced thereby, the legislature have left them to correct themselves. If the enterprise proves a failure, it may be abandoned ; or if the company find it for their interest to lower their rates they may do so. But so long as they comply with the requirements of the mayor and aldermen in furnishing accommodations, they have a right to demand that the requirements of the statute as to the iates of toll shall be observed. The case stated in the petition is, that the mayor and aider-men have required of the company very expensive accommodations for the public, and that these requirements have been complied with; that the company have not been able, at the — 494 — present rates of toll, to make any dividends; that they have petitioned the board to increase the rates of toll, and have had a hearing on their petition, and have proved such facts as entitle them to have the prayer of their petition granted. It is not alleged that the proceedings have been terminated by a dismissal of the petition, or by an adjudication of any kind, but that the board unreasonably neglect to proceed and make any legal adjudication in the matter. In such a case, the law should provide a remedy, and it is well settled that mandamus is the appropriate remedy to compel the defendants to decide the matter, and to make such a decision as they have authority by the statute to make. So far as it invests them with discretionary power, this court cannot by mandamus interfere with the exercise of that discretion ; but they may be required to act, and to act within the limits of their authority. Chase v. Blackstone Canal Co. 10 Pick. 244. Smith v. Mayor & Aldermen of Boston, 1 Gray, 72. See also the authorities cited by the respondents. Demurrer overruled.