Page images
PDF
EPUB

the "place which may be licensed" as referred to in R. L., c. 100, 13, as amended by St. 1910, c. 476, for the reason that under existing laws a place which may be licensed or a licensed place is substantially identical with the phrase "licensed premises," where only one license is exercised upon such premises.

3. This inquiry in terms purports to require my opinion upon the question whether or not existing law regarding the sale of intoxicating liquor permits two separate licensed rooms to be counted as one place licensed for the sale of liquor, within the meaning of R. L., c. 100, § 13, as amended by St. 1910, c. 476, § 1. Replying, therefore, to the inquiry as phrased, I am of opinion that under the conditions described therein the rooms might be considered as a single place "licensed for the sale of such liquors," within the meaning of the section cited, if they were both described as the "licensed premises" in an application for a single license of any one of the five classes, and were used in the exercise of such license, or if they were both described in two or more applications for licenses of different classes which may be legally exercised by the same licensee, as, for instance, an innkeeper. Upon the other hand, such rooms could not be counted as one such licensed place if each were described in a separate application for a license of any one of the five classes, or if one were described in an application for a license for one of the first three classes and the other were described in an application for a license of the fourth or fifth class. I assume, however, that the Honorable Senate in fact desires to be advised whether or not, if a license of any one of the first three classes be exercised in one of the rooms described in the inquiry, and a license of the fourth or fifth class be exercised in the other room so described, the two rooms together may be counted as one licensed place; and upon this assumption I am constrained to answer in the negative. Each room, being described as the licensed premises in a separate license, is, in my opinion, a place licensed for the sale of such liquors within the meaning of R. L., c. 100, § 13, as amended by St. 1910, c. 476, § 1.

To the Com-
mittee on
Street Rail-
ways.
1911
May 3.

AND

CONSTITUTIONAL LAW- RATES STREET
ELEVATED
RAILWAY CORPORATIONS - BOSTON ELEVATED RAILWAY
COMPANY IMPAIRMENT OF OBLIGATION OF CONTRACT
DISCRIMINATION EQUAL PROTECTION OF LAW.

[ocr errors]

A proposed bill, providing that "on all street and elevated railways in this commonwealth the fares which are now five cents shall be reduced to three cents between the hours of six and eight in the morning and five and seven in the evening," would, in the case of the Boston Elevated Railway Company, be unconstitutional and void because it would impair the obligation of the contract established by the charter of that corporation (St. 1907, c. 500, § 10) authorizing such corporation to establish and take a toll or fare not exceeding five cents, which sum should not be reduced by the Legislature during a period of twenty-five years after the passage of such statute. Such proposed bill would not be unconstitutional as to other street or elevated railway corporations as constituting so unjust a discrimination in favor of the Boston Elevated Railway Company and against such other companies as to deny the latter the equal protection of the laws.

You have requested my opinion as to whether House Bill No. 1370, if enacted, would be constitutional. This bill is in the following terms:

SECTION 1. On all street and elevated railways in this commonwealth the fares which are now five cents shall be reduced to three cents between the hours of six and eight in the morning and five and seven in the evening.

SECTION 2. Violation of this act shall be punished by fine or imprisonment at the discretion of the court.

That the Legislature has the power to regulate the rates of fare on street and elevated railways within the Commonwealth cannot be doubted. Dow v. Beidelman, 125 U. S. 680; Smyth v. Ames, 169 U. S. 466; Minneapolis & St. Louis R.R. Co. v. Minnesota, 186 U. S. 257; Interstate Railway Co. v. Massachusetts, 207 U. S. 79; S. C., sub nomen Commonwealth v. Interstate Consolidated Railway Co., 187 Mass. 436. This power, however, does not extend to the regulation of foreign or interstate commerce. Wabash, St. Louis & Pacific R.R. Co. v. Illinois, 118 U. S. 557. It must not be so exercised as to impair the obligation of any contract contained in the charter of a street or elevated railway company (Georgia Railroad & Banking Co. v. Smith, 128 U. S. 174, 179; Stone v. Farmers'

Loan & Trust Co., 116 U. S. 307, 325), or to deny to the company the equal protection of the laws, or to deprive it of property without just compensation and without due process of law. See cases supra.

A rate-regulating statute which exceeds the power of the Legislature in any of these respects is, of course, unconstitutional. Whether such a statute is beyond the legislative power depends upon the facts in each specific case. A rate-regulating statute may be constitutional as to one street or elevated railway company and unconstitutional as to another. It may be constitutional at one time as to a street or elevated railway company and at another time be unconstitutional as to the same company. Smyth v. Ames, 171 U. S. 361, 365. I cannot, therefore, give you an opinion of universal application, nor have I the facts before me upon which to give you an opinion as to specific cases except as to the Boston Elevated Railway Company.

In the case of the Boston Elevated Railway Company the bill, if enacted, would be unconstitutional because impairing the obligation of the contract contained in the charter of that corporation. St. 1897, c. 500, § 10, authorizes that corporation to "establish, and take a toll or fare, which shall not exceed the sum of five cents for a single continuous passage in the same general direction on the roads owned, leased or operated by it," and provides that "this sum shall not be reduced by the legislature during the period of twenty-five years, from and after the passage of this act," with a proviso that the Board of Railroad Commissioners may, upon petition, after notice and hearing, reduce such toll or fare, but that such toll or fare shall not, without the consent of the corporation, be so reduced as to yield less than a certain fixed income. This provision, as I have already advised you in an opinion in regard to the constitutionality of House Bill No. 1164, undoubtedly creates a contract between the Commonwealth and the Boston Elevated Railway Company. 2 Op. Atty.-Gen. 261, 426, 429; Opinion of the Attorney-General to the House of Representatives, April 22, 1911. The right to charge a toll or fare of five cents, which

shall not be reduced except in a prescribed manner, is of the essence of the contract. A change in this particular is clearly an impairment of the contractual rights of the company under its charter. Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S. 368, 398; Minneapolis v. Minneapolis St. Ry. Co., 215 U. S. 417, 434; see, also, Interstate Ry. Co. v. Massachusetts, supra, p. 86.

Since the bill, if enacted, would be unconstitutional as to the Boston Elevated Railway Company, it may be urged that it would therefore be unconstitutional as to all other street and elevated railway companies, for the reason that it denies to them the equal protection of the laws in that it requires them to carry passengers at a lower rate than that fixed for passengers upon the lines of that corporation. In the absence of the facts of each specific case, however, I cannot say that there is not a reasonable ground for distinction between that corporation and all other street and elevated railway companies. See Interstate Ry. Co. v. Massachusetts, supra, p. 85; Covington & Lexington Turnpike Co. v. Sandford, 164 U. S. 578, 597, 598. But even if the facts of each case do not justify the distinction between the Boston Elevated Railway Company and other companies, the fact that the former cannot be subjected to the act in question without violating its contractual rights, which are protected by the Constitution, is probably in itself sufficient to justify the discrimination. As was said by Mr. Justice Holmes in Interstate Ry. Co. v. Massachusetts, supra, p. 85:

If the only ground were that the charter of the Elevated Railway contained a contract against the imposition of such a requirement, it would be attributing to the Fourteenth Amendment an excessively nice operation to say that the immunity of a single corporation prevented the passage of an otherwise desirable and wholesome law.

It may be, though I do not think so, that the bill, if enacted in its present form, would not be held to be separable, and that since unconstitutional as to the Boston Elevated Railway Company it would be unconstitutional as to all street and elevated railway companies. I cannot, however, conceive of any way in

which this question can be raised, since companies other than the Boston Elevated Railway Company could object to the statute only on the ground that it was unconstitutional as to them. See Hatch v. Reardon, 204 U. S. 152, 160; Interstate Ry. Co. v. Massachusetts, supra. I am therefore of opinion that the bill, if enacted, would not be unconstitutional as to companies other than the Boston Elevated Railway Company on the ground that it discriminated against them.

As to whether it would be unconstitutional as to such other companies on other grounds, it is, as I have said, impossible to determine upon the facts before me. Whether in any case it would be unconstitutional as interfering with foreign or interstate commerce, or as impairing the obligation of a contract, could readily be determined. Whether in any case it deprives a corporation of its property without just compensation and without due process of law involves a detailed knowledge as to the financial condition of the corporation and the amount of business done by it.

I advise you, therefore, that in my opinion the bill, if enacted, would be unconstitutional as to the Boston Elevated Railway Company, and that it would not be unconstitutional as to other street and elevated railway companies on the ground that it discriminated between them and the Boston Elevated Railway Company, but that no further advice can be given as to its constitutionality as to such other companies upon the facts before me.

« PreviousContinue »