Mayor of Worcester v. Worcester Consolidated Street Railway Co.

Braley, J. The demurrer .admits the substantial allegations of the bill, by which without rehearsing its entire statutory title the defendant is described as a corporation duly organized to operate, and actually operating a system of street railways a part of which is located within, the municipal limits of the city of Worcester. By purchase it has lawfully succeeded to all the rights and franchises formerly granted to the Worcester, Leicester and Spencer Street Railway Company, one of its predecessors in title. St. 1893, c. 338. St. 1897, c. 269. At the date of transfer the tracks of this railway were laid, and the road operated in the public ways described in the bill under an original location regularly granted by the board of aldermen subject to certain restrictions, which, among other provisions not involved in the present controversy, required the company to lay and maintain paving within these streets according to certain specifications to which we shall refer later. Whatever questions may now arise over the construction or validity of — 112 — this part of the order, the company complied with its terms, although by compliance neither it nor the defendant is esfopped to contest its legality. Keefe v. Lexington & Boston Street Railway, 185 Mass. 183, 185. Under the construction most favorable to the defendant the company was to assume the expense of paving where the streets were unpaved, for the full width of two streets, and between the track or tracks, and for a limited distance outside of the rails as to the remaining streets, and also to repave with the same material the streets already paved, but the surface of which would have to be removed in the construction of its roadbed... This section of the order, however, is more comprehensive, for the opening words of the second paragraph, “shall lay and maintain paving,” indicate a broad purpose, and to overcome their inclusiveness the defendant contends that by the particular description of streets, and the kind of pavement to be used that follows, this general requirement is limited to paving only, and excludes the cost of subsequent maintenance. If one of the objects to ,be accomplished was the original paving, or repaving of these streets, their subsequent maintenance would call also for an expenditure by the city to keep them in proper repair. That by reason of their use by the company they would be subjected to an increased servitude, which ordinarily would require more frequent or extensive repairs entailing corresponding expense, well may have been considered by the board when settling the conditions of the grant. If possible all the terms of a written instrument are to be given effect, and this sentence may be considered as fairly indicative of the final determination of the aldermen, while the sentences which follow are to be viewed as in the nature of specifications defining the quality of the material and the extent of the work, and, although in one instance repeated, to declare in connection with each group of streets that when laid the pavement should be kept in repair by the company was unnecessary as this general provision already had been sufficiently stated. Even if there was a seeming repugnancy between the principal and subordinate clauses, the last would have to yield, because if given the effect for which the defendant contends these clauses would defeat the plain purpose which had been — 113 — already sufficiently declared. Morrill & Whiton Construction Co. v. Boston, 186 Mass. 217, 220. It also is a principle of construction that if uncertain or ambiguous terms are found in a statute or written instrument conferring a public grant they are construed strictly against rather than in favor of the grantee, and, unless by omission of all reference to the subject or by an explicit statement to the contrary, the city should not be required to assume a more onerous burden when manifestly intending to place it upon the company, unless expressed by the order in unmistakable language, which we do not find. Commissioners on Inland Fisheries v. Holyoke Water Power Co. 104 Mass. 446, 449. Attorney General v. Jamaica Pond Aqueduct, 133 Mass. 361, 365. Commonwealth v. Boston Terminal Co. 185 Mass. 281, 287. The position, however, is taken that if this construction is adopted the obligation imposed either to pave or to maintain is unenforceable as the board of aldermen were not empowered to impose such restrictions, or to exact their performance, and the most important part of the able and learned argument of counsel for the defendant is addressed to this question. When the location was granted, Pub. Sts. c. 113, was the law governing such grants. Under the provisions of § 7 the board of aldermen and selectmen of towns were authorized to grant original locations to street railway companies subject to such “restrictions ” as they deemed the public interest required. This word is used in connection with a grant of an interest in real property in a sense analogous to “ conditions,” and either term may denote a limitation upon the full and unqualified enjoyment of the right or estate granted. Skinner v. Shepard, 130 Mass. 180. Ayling v. Kramer, 133 Mass. 12. Clapp v. Wilder, 176 Mass. 332. In the St. of 1898, c. 578, § 26, which repealed Pub. Sts. c. 113, § 7, this construction was apparently adopted by the Legislature in § 13 as “ restrictions ” disappear, and the phrase “terms, conditions and obligations” is substituted. But even if having this legal and statutory signification, the inquiry whether the conditions could be legally incorporated with the order of location by way of regulating the manner in which the franchise was to be enjoyed is not changed. It was not until the St. of 1864, c. 229, that the first general law con — 114 — cerning street railways was enacted. The earlier acts granting charters of incorporation usually contained provisions more or less general as to any obligation of the corporation to keep the highways in which tracks were laid in repair. Of this class of requirements the act incorporating the Worcester Horse Railroad Company, to whose franchise the defendant has succeeded, is fairly typical. St. 1861, c. 148. But the St. of 1864, c. 229, § 18, defined and imposed such an obligation on all companies, and since then as this system of convenient transportation has developed, requiring greater solidity of construction with heavier equipment, especially since the change in motive power from horses to electricity, further consideration has been given to the subject, and corresponding legislation from time to time has been passed. St. 1866, c. 286. St. 1871, c. 381, § 21. Pub. Sts. c. 113, § 32. St. 1898, c. 578, § 15. R. L. c. 112, § 44. The St. of 1871, c. 381, being a general act concerning street railway corporations, codified previous statutes. In § 14 under the subordinate title of location of road, re-enacted in Pub. Sts. c. 113, § 7, with a marginal designation of like import, is found the origin of the right then expressly given to grant a restricted or conditional location. The nature of such restrictions not having been specifically defined, the defendant argues that by implication an obligation to replace or to maintain in repair by any method the surface of the street, whether paved or unpaved, was not included, as this duty, so far as deemed expedient, was already specified and imposed in § 21 of the original act and by Pub. Sts. c. 113, § 32, and consequently the Legislature never intended to delegate authority to impose additional requirements. But the context of § 7 is extensive, for the restrictions are to be such as “ the interests of the public may require,” and are unlimited in scope. The law making power well might say we have prescribed generally certain conditions as to the repair of the public ways with which street railway companies must comply, but if when granting a location the local authorities are convinced that the latter section is inadequate to equitably adjust and establish the extent of the burden of placing, and thereafter keeping, the surface of the streets in suitable repair owing to the increased wear to which they are subjected by the company, and that more burdensome restrictions are — 115 — required for the benefit of the city or town or of the travelling public, they may be imposed by them. There is no inconsistency under this construction between the two sections, which thus are brought into harmony, for if § 7 is first in ordinal number, still it may be treated as supplementary to § 32 for the purpose of ascertaining the intention of the Legislature. Opinion of the Justices., 22 Pick. 571, 573. Commonwealth v. McCaughey, 9 Gray, 296, 297. Commonwealth v. Boston Terminal Co. 185 Mass. 281. If the primary duty of maintaining the public ways within their limits in proper repair never shifts from a city or town, yet in granting a franchise the acceptance of which is not compulsory, the aldermen or selectmen in the exercise of a reasonable discretion and judgment could require under § 7, as a condition, that a more extensive share in the expense of repairing such ways when occupied by its tracks, than that required by § 32, should be borne by the petitioning company. The entire requirements of the third section of the order accordingly must be held as having been within the jurisdiction of the board of aldermen, and therefore valid. Newcomb v. Norfolk Western Street Railway, 179 Mass. 449. Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294. Selectmen of Hyde Park v. Old Colony Street Railway, 188 Mass. 180. Selectmen of Wellesley v. Boston & Worcester Street Railway, 188 Mass. 250, 253. But it is further cogently argued that the. St. of 1898, c.578, now R. L. c. 112, § 7, which repealed Pub. Sts. c. 113, § 7, did not recognize or ratify the validity of original orders requiring the surface construction of streets, or .of their subsequent maintenance, and which had been passed under the authority of previous statutes, and consequently since the passage of this act the order in this particular becomes a nullity. Upon reference to this statute it is expressly declared by § 11 that “ street railway companies . . . shall remain subject to all legal obligations imposed in original grants”, and by § 13, reference again is made to the same subject in the last paragraph, which ratifies and confirms all previous locations which are given validity as if granted under the repealing act. It also recognizes such orders as being in full force and effect subject only to the power of revocation under certain conditions conferred by § 17, upon — 116 — boards of aldermen and selectmen. R. L. c. 112, § 7. Instead of destroying conditional locations of this character they were explicitly preserved. Selectmen of Hyde Park v. Old Colony Street Railway, ubi supra. Under R. L. c. 112, § 100, this court is given jurisdiction in equity to enforce the order on which the petitioners rely, and a case for equitable relief having been stated the defendant’s demurrer must be overruled. Newcomb v. Norfolk Western Street Railway, ubi supra. Decree accordingly.