Page:The Green Bag (1889–1914), Volume 17.pdf/47

 THE GREEN BAG While it had been the policy thus to leave to the local authorities the determi nation of so many questions affecting street railways, the Supreme Court had considered and settled the capacity in which the local authorities exercised this control. This principle, quite as important as the provi sion that street railway locations could be revoked, was first stated by Chief Justice Shaw in the case already referred to.1 "In the first place, all public easements, all accommodations intended for the com mon and general benefit, whatever may be their nature and character, are under the control and regulation of the legislature, ex ercising the sovereign power of the State either by general law or special enactment. It may be done by a charter or special act of incorporation, as in case of a bridge over broad navigable waters; or, where the ne cessity for its exercise is of frequent recur rence, it may be by the delegation of power to special tribunals, or municipal govern ments, by general laws." In a case decided in 1865 * the proposition was amplified and re-stated by Chief Justice Bigelow, in discussing the character in which the local authorities acted in this exercise of control over street railways. "So far as they are intrusted with any power in relation to the location and con struction of the road, and other matters connected with its use, these duties are specifically enumerated and defined, and they are to be performed by them, not as officers acting for or representing the city, but as a body of men on whom certain duties of a ministerial or quasi judicial na ture are by law devolved. These duties have no necessary or essential connection with those which they are called on to perform in their official capacity, as a branch of the city government. They might have been imposed as well on any other body of men, if the legislature had seen fit, although it

was doubtless wise as a matter of conve nience and expediency that they should be performed by those who, in their official connection with the city, would be more likely to discharge them without difficulty and to the advantage of the public." Mr. Justice Hoar in the case of Union Railway v. Cambridge * added after the sentence, already quoted, about the policy of making street railway companies subject to the control of local authorities, this defi nition of its nature : — "This control is given to these municipal officers, not as representing a conflicting in terest, but as independent bodies, charged with the duty of protecting the rights and promoting the convenience of the whole public." These cases, however, established no new doctrine, but merely applied to street rail ways the principle already settled by the decision in Vinal v. Dorchester,4 long before street railways had been thought of, regard ing certain powers of aldermen and select men over railroads. Two significant facts appear as a result of legislation and judicial decisions affecting street railways and their legal relation to the public down to 1887. These were, first, that the corporations owning and operating railways had received and enjoyed no vested rights whatever in the highways, and, second, that no relation, contractual or otherwise, had been established between these corporations and the cities or towns in which the railways were operated. The only legal relation existing was one between the Commonwealth itself and the street railway corporations and the only authority over them was that of the legislature, repre senting the Commonwealth, acting either directly, through general laws, or indirectly, through boards of aldermen and selectmen, to whom it had delegated certain of its powers. These facts must be borne con

1 Commonwealth v. Temple, 14 Gray 6p. ' Cambridge v. Cambridge R. R. Co., 10 Allen

8 Union Railway v. Cambridge, n Allen 287, at 292. 4 7 Gray 421.

So-