mi. MmmmB: fKiM-^-^.r,i't^^, ajortipU IGatu i>rl|0nl fCibraty Cornell University Library KFM2701.A57M41 Index-digest of the reported decisions, 3 1924 024 687 851 ffiottqiltmrate of Cijarba E iHattti, (E.letk.Waaxh of Katlroaii (SLammiBBxaattB. 'M \< Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024687851 '^^ '■ :. -•ov:v!:w ^i)t (HommontDealtl) of iHaaaacliuBetts. AN INDEX-DIGEST Reported Decisions, Precedents General Principles ENUNCIATED BY THE BoAED OF Railroad Commissionees Fkom 1870 TO 1911, Inclusive. PREPARED BY THE CLERK OF THE BOARD. BOSTON: WEIGHT & POTTER PRINTING CO., STATE PBINTEES, 18 Post Office Square. 1912. FREDERICK J. MACLEOD, Chairman. GEORGE W. BISHOP. CLINTON WHITE. CHARLES E. MANN, Clerh. Office, 20 Beacon Steeet, Boston. Appeoved bt the State Board of Publication. Massachusetts Eaileoad Commission. [Created by Chap. 408, Acts of 1869.] CHRONOLOGICAL LIST OF MEMBERS. Jambs C. Convebsb (Chairman), 1869-1872. Edwaed Applbton, 1869-1870. Chaelbs Fbancis Adams, Jr. (Chairman from 1872), 1869-1879. Albert D. Beiggs, 1870-1881. Francis M. Johnson, 1872-1878. Edwaed W. Kinsley, 1878-1883; 1884^1891. Thomas Russell (Chairman), 1879-1887. Clemens Heeschbl, 1881-1883. Joseph H. Chadwick, 1883-1884. EvBEBTT A. Stevens, 1883-1895. Geobge G. Ceockbe (Chairman), 1887-1892. William J. Dale, Jr., 1892-1896. John E. Sanpoed (Chairman), 1892-1899. George W. Bishop, 1895- Heesey B. Goodwin, 1896-1901. James F. Jackson (Chamnan), 1899-1907. Clinton White, 1901- Waltbe Peeley Hall (Chairman), 1907-1911. Febdeeick J. Maclbod (Chairman), 1911- NOTE. A digest of the decisions of the Board of Railroad Commissioners of Massa- chusetts, covering the period from 1870 to the year of its publication, 1888, was prepared by Professor John H. Wigmore, now dean of the school of law of Northwestern University. A second was published in 1905. The present digest covers the decisions of the Board as printed in the first to the forty- third annual reports, inclusive. As a matter of interest to those having occasion to use this volume, references by footnotes or otherwise have fre- quently been made to decisions in the Massachusetts reports where the supreme court has had occasion to pass upon the powers or the action of the Board. It may be noted that during forty years there have been twenty reported appeals to the supreme court on matters involving decisions of the Board. In one case the court found the mandatory act under which the Board fixed certain interstate freight rates to be unconstitutional, and in two cases the decisions were against the position of the Board. The twenty appeals referred to are: Mayor and aldermen of Worcester v. Board of Railroad Commissioners; Attorney- General V. Norwich and Worcester R. Co. et. al., 113 Mass. 161, in both of which the action of the Board was sustained; Metropolitan R. Co. v. Highland St. Ry. Co., 118 Mass. 290, sustaining the Board; Worcester and Nashua R. Co. v. Board of Railroad Commissioners, 118 Mass. 661, where the court found the order of the raUroad commissioners erroneous; Attorney-General v. Eastern R. Co., 137 Mass. 45, sustaining the Board; Providence and Worcester R. Co. v. Norwich and Worcester R. Co., 138 Mass. 277, sustaining the Board; Cambridge R. Co. v. Charles River St. Ry. Co., 139 Mass. 454, sustaining the Board; Commonwealth v. Housatonic R. Co., 143 Mass. 264, a decision that the act under which the Board fixed certain interstate rates was unconstitutional; City of Cambridge v. Board of Railroad Commissioners, 153 Mass. 161, a decision that the Board acted upon an erroneous construction of the statute; Littlefield v. Fitchburg R. Co., 158 Mass. 1, sustaining the Board; Cunningham et al. v. Board of Railroad Commissioners, 158 Mass. 104, sustaining the Board; Brownell et al. v. Board of Railroad Commissioners, 163 Mass. 276, sustaining the Board; New York and New England Raihoad Company v. Board of Railroad Conmiissioners, 162 Mass. 81, sustaining the Board; New England Railroad Company v. Board of Railroad Commissioners, 171 Mass. 135, sustaining the Board; VI NOTE. Daniels v. Commonwealth Avenue St. Ry. Co., 175 Mass. 518, sustaining the Board; Kilty V. Board of Railroad Commissioners, 184 Mass. 310, sustaining the Board; Paine v. Newton St. Ry. Co., 192 Mass. 90, sustaining the Board; Mayor of Cambridge v. Board of Railroad Commissioners, 197 Mass. 574, sustaining the Board; Whiting V. Maiden and Mehose Railroad Company, 202 Mass. 298, sustaining the Board; Inhabitants of Weston et al. v. Board of Railroad Commissioners et al., 205 Mass. 94, sustaining the Board. INDEX TO CASES. Abington et al. v. O- C. R. Co. (moriiing train) . 8 V. O. C. St. Ry. Co. Cfare9) . . 62, 63 Acton Creamery Co. v. Fitchburg R. Co. (milk rates) 92 Acton selectmen, pet'rs (abolition crossings) 40 Adams v. B., R. B. & Lynn R. Co. (station) 12 V. Fitchburg R. Co. (milk rates) , 90 Alexander v. B. & M. R. (eervioe) . . . 9, 38, 111, 112 Amesbury v. Citizens El. St. Ry. Co. (snow, salt) . . 108 (service) . . .... . . . 11 Amesbury and Merrimac citizens v. Citizens Elec. St. Ry. Co. (service) .... 11 Amherst v. N. London Northern R. Co. (service) . 3, 4, 5, 6, 9, 13, 14, 97 Andover v. B. & L. R. Corp. (flagman) . . 38 Andover Cit. v. Law. & R. St. Ry. Co. (location) 80 Anon. V. B. & A. R. Co. (Sunday law — station) . , 15 V. Fitchburg R. Co. et al. (stations) . . .97 V. Housatonic R. Co. (rates — whistliDg) 48, 49, 51, 58, 115 V. N. Haven & Northampton R. Co. (Sunday train) 15 (injunction) ... 22 Arlington v. B. & L. R. Corp. (accommodations) 9, 97 V. B. B. Ry. Co. (transfers) 65 Attleborough, Sel. of, pet'rs (crossing) . . 33 (Abolition crossing) . . 40 V. O. C. R. Co. (gates) .35 Attleborough v. Interstate Cons. St. Ry. Co. (workingmen's fares) . 115 Atwood V. O. C. R. Co. (accommodation) ... I7, 54^ 57 B. BaUey v. L., L. & H. St. By. Co. (service) ... .12 Baltimore & Ohio Tel. Co. v. N. Y. & N. E. R. Co. (service) . . 3, 17, 99 Barnstable county v. N. Y., N. H. & H. R. Co. (station) lOO Beachmont Ave., Re (crossing) 33 Bedford et al. v. h. & B. St. Ry. Co. (tares) . 53 Bel Air M'f'g Co. v. B. & A. R. Co. (rates) 49, 50, 61, 54, 55, 56 Bellingham v. N. Y. & N. E. R. Co. (flagman) 35 Bemis v. N. Y., N. H. & H. R. Co. (private crossing) 30 Bennington & No. Adams (special report to General Court) 2S Berkshire County, Be coal rates in . . . 52, 58 Berkshire St. Ry. Co., pet'rs (stock) . . jqi (accident investigation) '. 3 location (Stockbridge) . . 85 (ownership) report to Legislatiu^e . . 104 (stock purchase) . . .70 Beverly n. B. & M. R. (stations) . .97 Blakie n. N. Y. & N. E. R. Co. (service) 9, 14 Blue Hill St. Ry. Co., pet'r (crossing) 37 Stoughton ti. (fares) . ... 65- Bollea !i. B. & P. R. Co. (service) ... 9 Boston V. B. & P. R. Co. (whistling) . , . . . . . 115 Charles River St. B. Co. ». (service) . .10, 22, lOfr Aldermen of, pet'rs (appeal) . .22, 38, 39, 40, 70 (abolition E. Boston crossings) . ' . . 39, 40, 70 City of, pet'r (bridges) . ... 2J Common Council, pet'r (fares) . . ... 66 Mayor of, s. Eastern B. Co. et al. . . ... 39 via INDEX TO CASES. Boston Aaso. Bd. Trade (complaint) ... Boston Elevated Railway Co. and West End St. Ry. Co., pet'rs (lease) and West End St. Ry. Co. (report to Legislature on proposed merger) Cambridge v. (stopping posts) . Charlestown v. (service) Patrons v. (stopping posts) Arlington v. (transfers) Pet'r (bridge) . Pet'r (removal Marlborough street tracks) Pet'r (Boylston St. station) Pet'r Gocationa) Pet'r (Forest Hills location) (stations) (tracks) * East Boston v. (fares) East Boston tunnel (night ser^dce) Hammond Hotels Co. v. (noise) Maiden v. (location) Maiden v. (station) West Roxbury v. (fares) Whiting et al. -o. (station) . . . ... Boston & Albany R. Co., Anon. v. (Hampden Co. — Sunday train) Anon. I). (Kneeland St. station) Bel Air M'f'g Co. v. (rates) Boston, pet'r (E. Boston crossing abolition) Boston Corn Exchange v. (service) (Boston, Mayor of, v. E. R. Co., et al. — crossings) Boyd V. (Marlborough — service) Briggs V. (Pittsfield — fencing) Brookline v. (fares, etc.) Brookline, Sel. of, pet'rs — (crossing) Butman v. (Wilbrahara — service) Cambridge v. (crossings) Carter v. (ba^age) Clapp V. (rates) (Coal rates in Berkshire Co. Re) Cook V. (baggage) Dwight V. (Cottage Farm crossings) EUiaon v. (Newton — baggage) Fitchburg R. Co. v. (connecting roads) Framingham v. (crossings) Framingham, Road Com'rs of, v. (crossing) Gordon v. (S. Framingham — service) Hankey v. (Rochdale — • rates) Hayward v. (baggage) Hemming v. (Pittsfield — rates) Howe V. (fares) . Natick V. (fares) ... Newton, pet'r (abolition crossings) Newton citizens v. (service) Otis Co. V. (Palmer and Ware — rates) Palmer n. (stations) . . Pet'r (Cypress St. — station) Pet'r (Longwood, etc. — station) Pittsfield V. (rates) . Providence & Wore. R. Co. v. (crossings) Scudder v. (Boston — rates) Springfield v. (service) Ware v. (Boston — damages) W. Springfield o. (petition) Westborough v. (rates) Winslow V. (Westborough — rates) . Worcester v. (Jurisdiction) Worthy Paper Co. v. (W. Springfield — rates) . Boston & Brookline R. Assoc. (Cambridge & S. B. R. Assoc, et al., pet'rs — location) Boston & Dorchester R. Assoc. (Cambridge & S. B. R. Assoc, et al., pet'rs — location) Boston & Eastern Elec. R. R. Co. (exigency) Boston & Lowell R. Corp., Andover v. (crossings) Arlington v. (service) . ... Chelmsford v. (stations) . PAGE . 17 70 28 12 . 12 12 66 24 . 10 100, 114 43 77 100 , 111 66 66 . 43 87 98 , 65 100 . 15 96 49, so 51, 54, 55, 56 39, 40, 70 . 17 . 39 4,5,9 . 67 47 48, 50, 53, 55 . 29 17, 56, 57, 58 31 . 20 27,60 52,68 20 . 39 19 . 27 30,31 . 31 14, 15 47 52, 54, 55, 56 . 20 32,58 19, 59 54,55 41, 70 16, 93 51 63, 54, 55, 56 . .. 98 99, 100 8 50,51 82, 55, 56, 58 . 36 . 59 22, 39, 97, 99 . 42 22,54 53 . 51 22, 23 50, 51, 52, 55 . 72, 75, 76 72, 75, 76 77 . 75 . 38 9,97 . 13 INDEX TO CASES. XX Boston & Lowell R. Corp. — Con. page Dalton V. (Lowell — rates) . 48, 49, 50, 54, 55 Lowell V. (express) . 44, 45 Medford v. (rates) . . 48, 50, 51, 52, 55 Merrill v. (Wilton — express) . 22, 44, 45 (Mills V. B. & M. R. et al. — whistling) . US Nashua & Low. R. Co. v. (connecting roads) 27 Pet'r (Bedford and Billerica — crossings) 34 Pet'r (Lawrence — crossings) . .34 Pet'r (Salem — branch) . . 71, 73, 74 Pet'r (Woburn branch) . . .71 Robinson v. (Arlington — whistling) 115 Rogers v. (Swanton Bridge) . . 7 Somerville v. (Willow Ave. — service) . 9 Wilmington et al. ti. (branch) . 8, 9 Woburn v. (service) . . . 6, 8, 9 Boston & Maine Railroad, Acton, pet'r (grade crossing abolition) . , . 40 Alexander v. (Maiden — service) 9, 38, HI, 112 Beverly v. (stations) 97 Boutwell V. (Groton — rates) 54, 55 Boyd V. (rates) . . 53, 56 Cape Ann residents v. (service) . 9 Capital Stock of. Re . . 101 Carleton v. (Haverhill — rates) . 60 Clarke v. (whistUng) . . 115 Cobb V. (service) . . ... . 5 Damon v. (Reading — service) 9 Drake v. (Reading — service) , 9 Everett v. (station) 97 Foster v. (W. Everett — station) 100 (Georgetown, sel. of, pet'rs) 32 Gloucester v. (gates) . . . .30 (station approach) 97 Gufifey, pet'r (private railroad) 35, 71 Hadley v. (station) 98 lowell & Lawrence R. Co. v. (crossings) . . , , 35 Lynn v. (early train) 8 Marks v. (Wellington — speed) . 112 Medford v. (bEiggage, etc.) . . 20 Mills u. (Lawrence — whistling) 115 (N. Andover, sel. of, pet'rs — crossing) 33 Page V. (Oak Grove — station) 98 Perkins v. (Lawrence — crossings) 39 Pet'r (abolition of grade crossings) 39 Pet'r (Lawrence — crossing) 34 Reading v. (crossing) . 32 (Reading, sel. of, pet'rs — crossing) 32, 35 Todd V. (icing milk) . ... 92 Topsfield, Salisbury et al. (school rates) . 52 Trafton v. (baggage) ... 19 Wakefield v. (station) ' .97 West Somerville Bd. Trade v. (service) . 4 Wilmington v. (station) . 100 Withington v, (Newburyport — rates) , 60 Boston & Mystic Valley R. Co., pet'r (charter, etc.) 25, 35 Boston & Northern St. Ry. Co., complaint (operation) . . 105 Davis V. (service) . 10 (express) 47 Gloucester v. (service) . 12 Lynn v. (service) . . . . 12 Melrose v. (fares) . .63 Pet'r (stock) ... 101 Swampscott (service) . . . . .12 (tracks) - . . . HI Wakefield v. (fares) . . . . . 62 Wakefield et al. (fares) . 63 West Newbury v. (service) . . . 12 Boston & Northern and Old Colony street railways (consolidation) 28 Boston & Providence Interurban Elec. R. R- Co. (exigency) . 74 (route) , . 88 X INDEX TO CASES. FAG£] Boston & Providence R. G>. (Attleborough, Sel. of, pet'rs — crossings) . . 33 Belles V. (Spring St. — service) . . . .9 Boston V. (whistling) . . .... . . 115 Hale V, (Boston — station) . . . . 97 Hyde Park v. (service) . . . 3, 5 Johnson v. (HosUndale station) . . . 97 Rollins V. (Highland — service) • • 9 Sharon v. (service) . . 5, 6, 9, 16, 21, 44, 56 (Station, St., Re — crossing) . - 32 Boston & Suburban Electric Co. (Lord, et al., pet'rs — fares) . . 66 Boston & Western Elec. R. R. Co. (exigency) . . .75 Boston & Winthrop R. Co., pet'r (crossing) . 34 Boston & Worcester St. Ry. Co. et al., pet'rs Gocation) . . 85 Kennard v. (service) ... 11 Marlborough collision report Perrin v. (school fares) Shrewsbury accident report Speed (Natick) . (WeUesley) . 105 65 105 108 108 (stock) .... . . 102 Boston, Barre & Gardner R. Co., Holden v. (service) 5, 6, 13 N. Worcester v. (service) . .... . 8, 14, 112 Pet'r (crossings) . . .... . . 35 Boston, Clinton & Fitchburg R. Co., Fitchburg R. Co. v. (yards, etc.) . 27 Boston Common Council, pet'r (transfers) ... ... 66 Boston Corn Exchange v. B. & A. R. Co. (service) . 17 Boston, Hartford & Erie R. Co., Hamant v. (Medfield — station) . 99 T^r !-(-'--to.). . . 21.59 Re .... . ... 37, 38 Boston. Hoosac Tunnel & Western R. Co. v. Troy & Greenfield R. (jurisdiction) , 96 et al., pet'ra (service) . . . .15 Boston, Lowell & Lawrence Elec. R. R. Co. (exigency) . . .75 Boston, Providence & Fall River Co., pet'r (express certificate) . . .46 Boston R. R. Holding Co. (stock, etc.) ..... 69, 102 Boston, Revere Beach & Lynn R. Co., Adams n. (Orient Heights — service) . 12 Hodge V. (Orient Heights — service) . . . . 8, 12 Prentice v. (Beachmont — crossings, etc.) . 38, 43, 53, 55, 59, 68 Winthrop v . . 48, 50, 55 Boston, Winthrop & Pt. Shirley R. Co., Winthrop v. (service) 5, 39, 112 Re (charter) ..... .25 Boston, Winthrop & Shore R. Co. (Beachmont Ave., Re — exigency) 73 Rollins V. (Ocean Spray St.) . 97 Wellman v. (Winthrop — service) . 9 Boutwell 0. B. & M. R. (rates) . . 54, 55 Boxford, sel. of, pet'rs (safeguard at crossing) . 35 Boyd 0. B. & A. R. Go. (service) 4, 6, 9 V. B. & M. R. (rates) . . .53, 66 Brickley et al. v. Lynn & Boston R. Go. (fares) . 65 Briggs 1). B. & A. R. Co. (fencing) . 67 Bristol County St. Ry. Go. pet'r (joint use tracks) . . 107 Brockton citizens v. Brockton & Whitman St. Ry. Co. Oocations) 80 V. N. Y., N. H. & H. R. Co. (coal rates) . . 48, 70 V. O. C. St. Ry. Co. (service) . . . . 10, U Brockton St. Ry. Co., pet'r (location) ... .77 Brockton & Whitman St. Ry. Co., Brockton cit. v. (location) . 80 Brookfield, Road Com'rs of, pet'rs (crossing) . . ... 33 Brookline «. B. & A. R. Go. (fares, etc.) . 47, 48, 50, 53, 55 V. N. Y. & N. E. R. Go. (service) 4, 5, 12, 13 (Longwood station) .... 8 Sel. of, pet'rs (crossing) . . . . 29 Butman v. B. & A. R. Go. (service) . 17, 56, 57, 58 c. Cambridge (brief for railroad comm'rs as to mandamus) . 31 Cambridge v. B. E. Ry. Co. (stopping posts) . 12 (transfers) . . . . , 66 V. B. & A. R. Co. (crossings) ..... 31 V. Fitchburg R. Go. (stations) . . . . . 98 0. West End St. Ry. Go. (fares) ... ... 66 INDEX TO CASES, XI PAGE Cambridge R. Co. v. Charles River St. R. Co. (franchise) . 68, 106 Cambridge & S. B. R. Aaaoo. et al., peb'ra (location) 72, 75, 76 Cape Ann residents v. B. & M. R. (service) 9 Cape Cod Ship Canal Corporators, pet'rs (charter) . 25, 101 Cape Cod Ship Canal Co., pet'r (franchise) . 68 Cape Cod R. Co., Middleborough v. (service) . . , 3, 5, 9, 13 Wareham v. (crossing) . . 39, 54 Carleton v. B. & M. R. (fares) . 60 Carter v. B. & A. R. Co. (baggage) . 20 Central Mass. R, Co. (stock) .... .101 (See Mass. Central R. Co.) Chadwick et al. u. N. Y., N. H. & H. R. Co. (service) ... .17 Charles River St. R. Co. v. Boston (service) . . . 10, 22, 106 Cambridge R. Co. ». (franchise) 104 V. Fitchburg R. Co. (crossings) . 35, 36 Charlestown v. B. E. Ry. Co. (service) . . .12 Charlestown & Milton R. Assoc. (Camb. v. S. B. R. Assoc, et al., pet'rs — exigency) . 72, 75, 76 Charlton accident ... . . 1, 2 Chelmsford v. B. & L. R. Corp. (station) . . .13 Sel. pet'rs (abolition crossing) ... 40, 41 Cheshire R. Co. (B., Barre & Gardner R. Co., pet'r — crossing) 35 Winchendon v. (obstruction crossing) . 39 Chicopee (accident investigation) . 3 Citizens Electric St. Ry. Co., Amesbury v. (service) . 11 (snow, salt, etc.) ... 108 Clapp V. B. & A. R. Co. (rates) ... . 27, 60 V. Hanover Br. R. Co. (rates) . 51, 56, 57, 58 Clarke v. B. & M. R. (whistling) 115 Clinton v. Worcester & Nashua R. Co. (track) . 110 Coal rates in Berkshire Co. Re 52, 58 in Brockton . 48, 70 Cobb V. B. & M. R. (service) . . 5 Cobb V. Union St. Ry. Co., of New Bedford (fares) . 61 Coburn et al., pet'rs (burden of proof) . . 32, 34 Commonwealth Ave. St. Ry. Co., Newton Cit. o. (location) 87 Concord, Maynard & Hudson St. Ry. Co., pet'r (location) 88 Concord & Boston St. Ry. Co., pet'r (stock) , , 101 Conn. River R. Co., Northampton v. (violation law) 21, 70 Greenfield (exigency) . , 74 pet'r (Holyoke) 34 pet'r (location) 74 Connecticut Valley St. Ry. Co., pet'r (stock) 102 Conway citizens v. N. Y., N. H. & H. R. Co. 7 Cook V. B. & A. R. Co. (baggage) 20 Covel V. O. C. R. Co. (station) 100 Craig inquest report (Pittsfield) 104 D St., Re (crossing) .... . . 32 Dalton V. B. & L. R. Corp. (rates) . . 48, 49, 50, 54, 55, 56 Damon v. B. & M. R. (service) .... .9 Dartmouth & Westport St. Ry. Co., North Westport v. (fares) 62, 65 Davis V. B. & N. St. Ry. Co. (service) 10 Dedham v. O. C. St. Ry. Co. (fares) . . 63 Drake v. B. & M. R. (service) 9 Draper a. Wor. & Shrewsbury R. Co. (service) . 8, 13, 14, 50, 57 Dukes Co. et al. v. N. B., M. V. & N. Steamboat Co. (rates) 60 Duxbury v. Cohasset R. Co., Nelson v. (good faith) 29, 70 Dwight V. B. & A. R. Co. (crossing) . 39 E. East Boston tunnel (night service) . . 66 East Boston ». B. E. Ry. Co. (fares) . . 66 East Brookfield (accident report) (gates) _ 35 East Taunton St. Ry. Co., pet'r (crossing) . . 37^ 87 East Wareham & Onset Bay R, Assoc, pet'rs (location) . . ,74 Eastern Junction, Broad Sound Pier & Pt. Shirley R. Co. (Cobum et al., pet'rs — crossing) 32, 34 Xll INDEX TO CASES. PAQE Eastern R. Co., Boston, Mayor of, v. (crossing) . 39 Everett v. (station) . . 97 Graves ». (Marblehead — fares) 54 Lynn i. (crossing) . 32, 34 (N. Andover, Sel. of, pet'rs — crossing) . . 33 Peabody v. (crossing) . 39 Perry v. (Revere — fares) . . .50 Pet'r (Peabody — location) 73, 74 Pet'r (Salem — location) . 73 Re (Gloucester — crossing) . 30, 33 Easton v. 0. C. & Newport R. Co. (service) 6, 12 Ellison 11. B. & A. R. Co. (baggage) 19 Enterprise Transportation Co. v. N. Y., N. H. & H. R. Co. (station) 98 Equity Assoc, pet'rs (E. Boston) . . 30 Essex Co. St. Ry. Co., pet'r (location) 78, 87 Estabrook, pet'r (express) . 45 Everett v. B. & M. R. (station) . 97 V. Eastern R. Co. (station) 97 V. L. & B. R. Co. (fares) 65 «. Middlesex R. Co. (service) 3,5 Fairiiaven road commissioners, pet'rs (crossings) . . . . 32, 33 Bridge, report ... . .24 Ferry re (O.C.R. Co., pet'r) , . 7 Special report upon . . 7, 70 Fairhaven Branch railroad (ferry report) . 7 Fall River ». N. Y., N. H. & H. R. Co. (service) . . 3 «. O. C. St. Ry. Co. (service) . . 10 Citizens v. Fall River Shore Line St. Ry. (location) . . 80 (Draw, Slade's Ferry bridge) 24 (Report, Taunton River bridge) .... 24 Fall River Shore Line St. Ry. Co., citizens o. (location) . . 80 Fall River Street Railway Co., pet'r (art. assoc.) . 18 Falmouth, Sel. of, pet'rs (crossing) . . 33 Crossing alteration . , 39 Fire extinguishers (report to General Court) . . . . 113 Fitchburg R. Co., Adams v, (milk) ... 90 Acton Creamery Co. «... 92 Anon. s. (station) . , 97 V. B. & A. R. Co. (con. road) . 27 V. B., Clinton & Fitchburg R. Co. (con. road) . 27 (B., Hoosac T. & Western R. Co. et al., pet'rs — service) 15 Cambridge v. (station) . . . . .98 Charles River St. R. Co. v. (crossing) . . 35, 36 Hefferan v. (N. Cambridge — fencing) 67 McBride v. (Waltham — express) . . . . 44, 45 N. London Northern u. (crossing) ... 37, 38 Pet'r (Littleton — station) . 98, 99 Pet'r (Watertown — crossings) . . 34 Thyng v. (cars) 112 V. Troy & Greenfield R. (State road) gg Weston V. (fares) . 53, 56 Winchendon v. (crossing) ... . 39 Fitchburg & Suburban St. Ry. Co., Leominster cit. «. (location) gO Fore River Ship & Engine Co., pet'r (private tracks) . 35 Forest Hills & Quincy St. Ry. Co., pet'rs (location) . . 77 Foster v. B. & M. R. (station) . . .... . . .100 Framingham 0. B. & A. R. Co. (crossings) . . . . . . 30, 31 V. Milford & Uxbridge St. Ry. Co. (fares) . . . 55 Framingham, Road Com'rs of, t. B. & A. R. Co. (crossings) . . .31 Freetown v. N. Bedford & Taunton R. Co. (fares) . . . . 49, 51 G. Gardner, Westminster & Fitchburg St. Ry. Co., pet'r (location) • • . . 87 General Service Co., pet'r (baggage express) . . .... .46 Georgetown, Sel. of, pet'rs (crossings) . . 32 Gloucester o. B. & M. R. (crossing) . .... ... .... 30 (Station approach) . ....... 97 INDEX TO CASES. Xlll PAGE Gloucester v. B. & N. St. Ry. Co. (service) . . .12 Gordon v. B. & A. R. Co. (service) . 14, 16 Grafton, Sel. of, pefrs (bridges) . 23 Grafton v, Wor. Cons. St. Ry. Co. (fares) . 64 Graves v. Eastern R. Co. (fares) . , 54 Great Harrington, appeal, N. Y., N. H. & H. R. Co. (alt. crossing) 39, 70 Greenfield (exigency) . ..... ,74 Greenfield, Deerfield & Northampton St. Ry. Co., pet'r (connecting location) 70, 86 Guffey, J. M., pet'r (Beverly — private railroad) 35, 71 Guild V. N. Y. & N. E. R. Co. (service) . 4, 5, 6 H. Hadley v. B. & M. R. (station) . 98 Hale v.B.&P.R. Co. (station) . 97 Hamant v. B., Hartford & Erie R. Co. (station) . 99 Hammond Hotels Co. o. Boston Elev. Ry. Co. (noise) . 43 Hampden R. R. Corp. (exigency — location) . 74 Hampshire Co. Coms., appeal, N. Y., N. H. & H. R. Co. . 38 Handy v. O. C. R. Co. (express) . . ... 44 Hankey v. B. & A. R. Co. (rates) . 47, 52, 54, 55, 56 Hanover «. Hanover Br. Co. (service) , 5, 9 V. O. C. R. Co. (service) 8 Hanover Br. R. Co., Clapp v. (rates) 51, 56, 57, 58 Hanover v. (service) . 5, 9 V, O. C. R. Co. (con. road) . 27 Rockland u. (service) . . . 6, 9 Hartford & Worcester St. Ry. Co., pet'r (location) . 81, 86, 87 Hartshorne v. N. Y. & N. E. R. Co. (service) . 12, 97 Harvard Street station (N. Y., N. H. & H. R. Co.) ... .100 Hathaway et al. v. N. Y., N. H. & H. R. Co. (box boards) 49, 62 Haverhill v. H. & So. N. H. St. Ry. Co. (fares) . 63 Haverhill, Georgetown & Danvers St. Ry. Assoc, pet'r (express) 46 Haverhill & Amesbury St. Ry. Co. (express) . , .47 Haverhill & Boxford St. Ry. Co., pet'r Gocations) . . 70. 84 Haverhill & So. N. H. St. Ry. Co., Haverhill v. (fares) . 63 Hayden v. Lynn & Boston St. R. Co. (service) 12, 62 Hayward ». B. & A. R. Co. (baggage) 20 Hefferan v. Fitchburg R. Co. (fencing) . 67 Hemming v. B'. & A. R. Co. (rates) . . 52, 58 Higgins V. N. Y. & N. E. R. Co. (whistling) 115 Highland R. Co., Metrop. R. Co. v. (route) 106 Hingham v. Nant. Beach R. Co. (service) 5 Pet'r (abolition crossing) , 41 Hodge V. B., R. B. & Lynn R. Co. (service) 8, 12 Hood et al., pet'rs (milk transportation) 92 Holbrook v. O. C. St. Ry. Co. (fares) 62 Holden v. B., Barre & Gardner R. Co. (service) 5, 6, 13 Holyoke v. Holyoke & Westfield R. Co. (service) . 5, 6 City of, pet'r (crossing) .... 30, 33 V. New Haven & Northampton R. Co. (travelled places) . 30 Holyoke Street Railway Co., Northampton v. (fares) 65 Holyoke & Westfield R. Co., Holyoke v. (service) . o, 6 (Holyoke, city of, pet'r — crossing) . 32 Holyoke Water Power Co. v. (station) ... 99 Holyoke Water Power Co. v. Holyoke & Westfield R. Co. (station) 99 Hopkinson et al., pet'rs (rates) . 52, 53, 70 Housatonic R. Co., Anon, v. (Lee and Pittsfield — rates) . 48 Anon. V. (SheflSeld — rates) . . 49, 51, 58, 115 Hurlbut Paper Co. v. (rates) . 47, 51, 54, 55, 56, 58, 59 Pet'r (Sunday train) . . 15 Howe V. B. & A. R. Co. (fares) . 19, 59 Howland v. N. Bedford R. Co. (service) . 7, gg Hull V. Nant. Beach R. Co. (service) 4, 5, 9, 22 Hull St. Ry. Co., pet'r .... .... 32 Hurlbut Paper Co. v. Housatonic R. Co. (rates) 47, 51, 54, 55, 56, 58, 59 Hyde Park v. B. & P. R. Co. (service) . 3, 5 XIV INDEX TO CASES. I. PAGE Interstate Consolidated St. Ry. Co., pet'r (capital) ... 102 Attleborough V. (workingmen's fares) . 115 Interstate St. Ry. Co., pet'r (crossing) . 36 J. Johnson v. B. & P. R. Co. (station) ..." 97 E. Kennard v. B. & W. St. Ry. Co. (service) . L. Lawrence & Reading St. Ry. Co., Andover v. (location) . 87 Legislature, special report to (coal transportation by street railways) 40 Bennington & North Adams (purchase) . . 28 Boston Elevated — West End (merger) . 28 Boston Elevated (freight transportation) 23 Brakemen — on freight trains . 43 (Fairhaven Ferry) 7 Fire extinguishers 113 Lifting jacks , , 2 Train service . 113 (Worcester Cons. — service) . 12 (New Hampshire Traction Co. — stock) . 103 (Worcester & Southbridge, etc. — ownership) . . 104 Leominster citizens v. Fitehburg & Suburban St. Ry. Co. Gocation) . 80 Leominster & Clinton St. Ry. Co., pet'rs (crossing) 30 Lewellyn v. N. Y., N. H. & H. R. Co. (express) 45 Lexington & Boston St. Ry. Co., Bedford et al. v. (fares) 63 Pet'r Gocation) .... . .88 Littleton v. Nashua, Acton & B. R. Co. (service) 4, 5, 9 Lord V. N. & B. St. Ry. Co. (service) . 12 (transfers) ... .66 Lowell r^B. & L. R. Corp. (express) ... 44, 45 Lowell & Fitehburg St. Ry. Co. (branch line) . 84 Lowell & Framingham R. Co., Nutter v. (stock) . 101 Lowell, Lawrence & Haverhill St. Ry. Co., Bailey ». (service) . ! 12 Lowell & Lawrence R. Co. v. B. & M. R. (crossings) . 35 Lowell & Pelham St. Ry. Co. (joint use tracks) . . 107 Lynn b. Eastern R. Co. (crossing) 32, 34 V. B. & M. R. (early trains) 8 V. B. & N. St. Ry. Co. (service) . . 12 Lynn & Boston Railroad Co., Brickley et al. v. (fares) 65 Everett aid. v. (fares) . . .65 Hayden v. (service) . . 12, 62 Pefr (stock) ... 101 M. Maiden, pet'r (fares) . . 65 V. B. E. Ry. Co. Gocation) 87 V. B. & M. R. (station) ... 98 Maiden et al- v. West End St. Ry. Co. Gocation) 80 Mansfield & Framingham R. Co., Sherbom o. (station) 99 Maplewood & Danvers St. Ry. Co., pet'r (charter) 29 Pet'r Gocations) .... ... 64, 78, 80, 82, 84 Marine R. Assoc. (Nant. Beach R. Assoc, et al., pet'rs — location) . 74, 77 Marion, Mattapoisett & Wareham v. N. B. & O. St. Ry. Co. (fares) 64, 83 Marks v. B. & M. R. (speed) ... 112 Marlborough Collision report (B. & W. St. Ry.) ... 105 Marlborough street tracks (Boston Elevated Ry. Co., pet'r) 10 Marshfield selectmen, pet'rs (signals, gates) ... .37 Mass. Central R. Co. (Northampton v. Conn. River R. Co. et al. — atty. gen.) 21, 70 Pet'r (Belmont — location) 76 Pet'r (Lexington — crossing) 34, 36, 70, 77 Pet'r (Waltham — crossing) . . 34, 36, 70, 77 Pet'r (Weston — crossing) . . 34, 36, 70, 77 INDEX TO OASES. XV Mass. Central R. Ck>. — Con. page (Sudbury, Sel. of, Pet'rs — crossing) . ' . 34, 36, 70, 77 (Waltham, Sel. of, Pet'rs — crossing) . 34, 36, 70, 77 (Weston V. Fitohburg R. Co. et al. — rates) . . . 53, 56 (See Central Massachusetts R. Co.) Mass. Electric companies (holding Company) 69 Master Teamsters Assoc, (complaint) 16 Mattapoisett v. N. B. & O. St. Ry. Co. (fares) 64, 83 McBride v. Fitchburg R. Co. (express) . 44, 45 McCormick et al. ». N. Y., N. H. & H. R. Co. (rates) 28 MoGovern t. N. Y., N. H. & H. R. Co. (freight rates) 49 McKean v. N. Y. & N. E. R. Co. (service) 5, 6, 14 McKenzie v. Nant. Beach R. Co. (service) 4 Medfield s. N. Y. & N. E. R. Co. (station) . . . 97 Medford v. B. & L. R. Corp. (rates) 48, 50, 51, 52, 55 s. B. & M. R. (baggage) 20 (station) ... ... 100 Medway o. N. Y. & N. E. R. Co. (service) 3, 6, 13, 16, 17, 55, 56, 97, 110 Meigs Elev. R. Assoc, pet*rs Qocation) 74 Melrose u. B. & N. St. Ry. Co. (fares) 63 Merchants Co-op. Express Co. et al., pet'r (express) 45 Merriam, pet'r (service) . . 15 Merrill v. B. & L. R. Corp. (express) ... .22, 44, 45 Merrimac v. Citizens Elec. St. Ry. Co. (service) 11 Metrop. R. Co., Highland R. Co. v. (joint use tracks) . 106 S. Boston R. Co. v. (connecting roads) 27, 105, 106 Welby ti. (location, etc.) . 61, 77, 95, 104 Metrop. R. (3o. et al., Welby i. (rates) 61, 77 Middleborough selectmen, pet'rs (speed) . 107 Middleborough v. Cape Cod R. Co. (service) . 3, 5, 9, 13 Middlesex R. Co., Everett v, (service) 3, 5 Welby 0. (complaint) . . .21 (Welby J. Metrop. R. Co. et al. — rates) 61, 77 Midland R. Co., pet'r (crossing) 36 Milford & Uxbridge St. Ry. Co. pet'r (stock) . . .102 Milford & Woonsooket R. Co., Whitney v. (Bellingbam — rates) 47, 51, 53 Milk, Re Transportation of 90 Milk Producers' Assoc, pet'rs ... 90 Millbury, Singletary Lake & West Millbury C!o., pet'r (location) 77 Mills B. B. & M. R. (whistling) . 115 Milton St. Ry. Co., pet'r Oocation) 79 Montague v. Conn. Valley Co. (fares) . 66 Mount Tom & Easthampton R. Co. (Williston, pet'r — location) 87 Murray u. B., Hartford & Erie R. Co. (complaint) . . 21, 59 N. Nahant R. Assoc, pet'rs Goeation) ... 74, 77 Nantasket Beach R. Assoc, et al., pet'rs Gocation) . 72 Nantasket Beach R. Co., Hingham o. (service) 5 Hull V. (service) . 4, 5, 9, 22 McKenzie v. (service) . . .4 TSTantucket et al. v. N. B., M. V. & N. Steamboat Co. (rates) 60, 70 Nashua, Acton & B. R. Co., Littleton v. (service) . 4, 5, 9 Nashua & Acton and Concord & Montreal, pet'rs (purchase) . 70 Nashua & Lowell R. Co. v. B. & L. R. Corp. (connecting road) 27 Natick V. B. & A. R. Co. (rates) . . 54, 55 Selectmen (speed) 108 Natick & Cochituate St. Ry. Co., Wayland v. (sefrvice) . 12 National Dock & Warehouse Co. , pet'r (private crossing) , 35 Nelson c. Duxbury & Cohasset R. Co. (construction) 29, 70 Neponset v. N. Y., N. H. & H. R. Co. (station) . 100 New Bedford v. N. Y., N. H. & H. R. Co. (station) . 100 New Bedford et al. v. N. Y., N. H. & H. R. Co. (service) 3 New Bedford, Martha's Vineyard & Nantucket Steamboat Co., Nantucket et al. v, (rates) . 60, 70 Vineyard Haven v. (rates, etc.) 17, 61 New Bedford R. Co., Howland v. (station) 7, 98 New Bedford and Fairhaven ferry, O. C. R. Co., pet'r 7 Special report upon ....... 7, 70 New Bedford & Onset St. Ry. Co., Marion et al. v. (fares) . 64, 83 New Bedford & Taunton R. Co., Freetown v. (rates) 49, 51 XVI INDEX TO CASES. PA OB Newburyport v. Newburyport & Amesbury Horse R. Co. (fraud, etc.) 22 (stock) . . ... . 101 New Hampsbu-e Traction Co., report (stock) .... 103 New Haven & Nortbampton R. Co., Anon. i). (service) 22 CNortbampton v. Conn. River R. Co. et al. — complaint) 21, 70 Wbately v. (service) ... 3, 5, 31 (Wbately, Citizens of, pet'rs — crossing) . 31,83 New London Nortbern R. Co., Amberst o. 3, 4, 5, 6, 9, 13, 14, 97 V. Fitcbburg R. Co. . 37, 34 Newton, pet'r (abolition crossings) ... 41, 70 Newton Centre, Re . . .... . . .100 Newton citizens v. B. & A. R. Co. (service) 16, 93 V. Com. Ave. St. Ry. Co. (location) ... 80 Newton Street Railway Co., pet'r (crossing) ... 36 (Location) .... 84 (transfers) . . . ... .66 New England R. Co., pet'r (location) ... 71, 74 Newton & Boston St. Ry. Co., Lord et al., v. (transfers) ... 66 New York, New Haven & Hartford R. Co. (agreements as to alterations of crossings) 39 Appeal, Great Barrington (alteration crossing) 39, 70 Appeal, No. Easton (bridge) . . 24 Appellant, Hampshire Co. Corns, et al. (alteration crossing) . . 38 Barnstable County v, (station.) 100 Bemis v. (private crossing) . , .30 Brockton Citizens v. (coal rates) . . 48, 70 Chadwick «. (service) . . 17 Conway Citizens v. (service) ... 7 Enterprise Transportation Co. (station service) 98 Fall River v. (service) ......: 3 Falmoutb, pet'r (crossing alteration) . . 3& Hatbaway et al. v. (box board rates) 49, 52 Harvard Street station (accommodations) . lOO Hingbam, pet'r (abolition crossings) . 41 Lewellyn v. (express) l, . 45 McCormick et al. v. (rates) . 28 McGovern v. (freight rates) . . = ,49 New Bedford v. (service) 3 New Bedford v. (station) . . 100 Neponset v. (station) . . 100 OUendorf et al. v. (service) . 8 Pet'r, Dorchester (crossing) ... 42 Pet'r Gocation in Western Mass.) . 74 Rackemann et al. v. (Readville station) . . 100 Roslindale cit, v. (fares) . 60 (station) .100 Sharon v. (freight station-service) . 5, 100 Sbelburne Falls cit. v. (service) 7 Southampton v. (service) , 6, 49 Taunton et al. ». (service) 3 Shaugbnessey v. (fares) ■ . 57 Whitman v. (service) .... .5 New York & Boston Inland R. Assoc, pet'rs (charter) 25, 26, 75 New York & New England R. Co., Bait. & O. Tel. Co. v, (service) 3, 17, 99 Bellinghaiu v. (crossing) . . 33 Blakie v. (Hyde Park — service)^ 9^ I4 Brookline v. (service) . 4^ 5, 12, 13 Guild V. (Dedham — service) 4 5 6 Hartshorne v. (W. Walpole — service) . 12 97 Higgins V. (Hyde Park — whistling) _ ^ II5 McKean v. (Carysville — service) 5 6 14 Medfield v. (station) . . . 97 Medway s. . . . 3, 6, 13, 16, 17, 55, 56, 97, 110 (Newton Centre, Re — station) , jqq Norwood V. (station) . . gy Payne v. (Forest Ave. — service) 9 13 ^4 Pet'r (location) . . .74 Stedman u. (Boston — whistling) . . _ II5 Stevens Linen Works v. (rates) . , 48, 57 58 59 Oxbridge v, . . 90 INDEX TO OASES. XVll PAGE New York Central & Hudson River R. Co. (service) .... .10 Newburyport v. N. & Amesbury Horse R. Co. (investigation) 22, 101 Newburyport & Amesbury Horse R. Co. v. Newburyport (investigation) 22, 101 North Andover, Sel. of, pet'rs (crossing) . . 33 North Attleborougb & Wrentham R. Co., Old Colony R. Co. v. (location) 73 North Brookfield v. W. B. & S. St. Ry. Co. (service) 11 (fares) ........ . 64 (location) . . 82 North Brookfield R. Co. (Brookfield, Road Com'rs of, pet'rs — crossing) . 33 North Westport u. D. & W. St. Ry. Co. (fares) 62 citizens v. D. & W. St. Ry. Co. (fares) 65 North Worcester v. B., Barre & Gardner R. Co. (service) . 8, H, 112 Northampton v. N. & H. St. Ry. Co. (fares) 65 V. N. St. Ry. Co. (fares) . 64 V. Conn. River R. Co. et al. (complaint) . 21 (union station) . 70 V. Hampshire Co. Com. et al. . . 38 Northampton Street Railway Co., Williamsburg cit. v. (faxes) 62 pet'r (fares) ..... 64 Northampton & Amherst St. Ry. Co, et al., pet'rs (merger) 28 Norton & Taunton St. Ry. Co., Bristol Co. St. Ry. Co., pet*r (joint use) 107 Taunton v. (service) 12 Norwich & Worcester R. Co., pet'r (location) 71 (Tracks in Worcester, Re) 71 Webster v. (station) ... 97 Norwood V. N. Y. & N. E. R. Co. (station) 97 Nutter V. Lowell & Framingham R. Co. (stock) 101 o. Old Colony R. Co., Abington v. (fares) 62, 63 Abington et al. -o. (service) 8 Attleboro sel. u. (crossings) , . 35 Atwood 1!. (Harwich — service) Covel ». (Fall River — station) (Fairhaven Ferry) (Fairhaven, Road Com'rs of, pet'rs — crossing) (Falmouth, sel. of, pet'rs — crossing) * Handy v. (S. Weymouth — express) Hanover v. (service) . Hanover Br. R. Co. v. (connecting road) Mattapan (crossing) . pet'r (grade crossing) pet'r Gocation) (New crossing) Pilgrim Conference v. (Sunday trains) Richmond v. (Myricks — service) Smith V. (N. Bedford — -express) (State Dike, Be) p. No. Attleborough & W. R. Co. (location) Wareham et al. v. (service) WiUard v. (express) Old Colony St. Ry. Co., Boston & Northern St. Ry. Co. (consolidation) Brockton v. (service) (bridge) (common carrier) Dedham v. (fares) . 63 Fall River v. (service) 10 Holbrook o. (fares) 62 Rockland v. (fares) . 63, 66 Stoughton selectmen v. (fares) .... 62 Old Colony & Newport R. Co., Easton v. (service) . 6, 12 Ollendorf v. N. Y., N. H. & H. R. Co. (service) 8 Onset Bay Grove Assoc, Wareham v. (private railroad) . 71 Onset Bay Grove R. Assoc, pet'rs (location) . 73,74 Otis Co. V. B. & A. R. Co. (rates) 51, 53, 54, 55, 56 17, 54, ,57 100 7, ,70 32, ,33 33 44 8 27 70 70 85 33 15 14, 37, ,65 44, ,45 71 73, i74 5 44 28 10, ,11 24 46, ,47 XVIU INDEX TO CASES. P. PAGE Page V. B. & M. E. (station) . 98 Page, Storms Co., pet'r (travelled place) . 30 Palmer v. B. & A. R. Co. (station) * . 98 (service) ... ... 9 Payne v. N. Y. & N. E. R. Co. (service) 9, 13, 14 Peabody v. Eastern R. Co. (crossing) 39 V. B. & M. R. (whistling) . 115 Sel. of, pet'rs (crossing) 32 Perkins v. B. & M. R. (crossing) 39 Perrin v. B. & W. St. Ry. Co. (school fares) 65 Perry v. Eastern R. Co. (rates) ... 50 PUgrim Conference v. 0. C. R. Co. (Sunday trains) . 15 Pittsfield V. B. & A. R. Co. (rates) 50, 51, 52, 55, 56, 58 V. Pittsfield El. St. Ry. Co. aocation) . . 86 Pittsfield Electric St. Ry. Co., pet'r (location) 83, 86 Pittsfield citizens v. . . 80 Post Publishing Co., pet'r (Sunday train) 15 Prentice «. B., R. B. & Lynn R. Co. (crossing) 38, 43, 53, 55, 55, 68 Providence & Worcester R. Co. v. B. & A. R. Co. (crossing) 36 Pet'r (Millbury — station) 99 (Tracks in Worcester, Re) . . 71 Uxbridge v. . . . . 97 Rackemann et al. v. N. Y., N. H. & H. R. Co. (Readville station) 100 Ratigan, pet'r (stage lines) 96 Reading v. B. & M. R. (crossings) 32 Sel. of, pet'rs (crossings) . 32, 35 Revere v. B. & N. St. Ry. Co. (fares) 65 (location) ... 11 selectmen (St. Ry. fares) 65 Revere & Winthrop St. Ry. Co., Winthrop Cit. v. Qocation) 80 Richmond v. O. C. R. Co. (service) . 8, 14, 37, 55 Robinson v. B, & L. R. Corp. (whistling) . 115 1, B. & M. R. (whistling) . ^ 115 Rockland v. Hanover Br. R. Co. (service) . 6, 9 V. O. C. St. Ry. Co. (fares) . 63, 66 Rogers v. B. & L. R. Corp. (service) 7 Rollins V. B. & P. R. Corp. (service) 9 T). B., Winthrop & Shore R. Co. (station) 97 Roslindale Cit. „. N. Y., N. H. & H. R. Co. (fares) 60 (station) . . 100 Roxbury v. B. E. Ry. Co. (transfers) 66 s. Salem v. B. & M. R. (fares) . 53 Salem v. Lowell R. Co. (B. & L. R. Corp., pet'r — location) 71 (Peabody, Sel. of, pet'rs — crossing) 32 Salem & Danvers St. Ry. Co., pet'r (association) Ig Salisbury v. B. & M. R. (school rates) . _ 52 Salisbury Beach R. Assoc, pet'rs (art. association) 18^ 75^ 76 Scudder v. B. & A. R. Co. (rates) ... 59 Sharon v. B. & P. R. Co. (service) 5, 6, 9, 16, 21, 44 Sharon ». N. Y., N. H. & H. (service) 5 (freight station) 100 Shaughnesaey v. N. Y., N. H. & H. R. Co. (fares) 57 Shelburne Falls cit. v. N. Y., N, H. & H. R. Co. (service) 7 Sherbom v. Mansfield & Framingham R. Co. (station) gg Shrewabxiry Accident report (B. & W. St. Ry.) IO5 Blade's Ferry bridge, report 24 Smith V. O. C. R. Co. (express) . 44 45 Somerville v. B. & L. R. Corp. (service) g Somerville Horse R. Co., pet'r (stock) jqq South Boston R. Co., Metrop. R. Co. v. (connecting road) 27, 105 106 Southampton v. N. Y., N. H. & H. R. Co. (service) _ g 4g Southborough Sel. et al., pet'rs Gocation) 37 37 INDEX TO OASES. XIX PAGE Southern New England Co., pet'r (location) . . . . .73 Spencer v. Wor. Cons. St. Ry. Co. (fares) .... . . . 62 Springfield v. B. & A. R. Co. (service) . . . . 22, 39, 97, 99 Springfield St. Ry. Co., pet'r (express) . . . . .... 47 Oocation) . . . . ... .82,83,88 Ownership (report to Legislature) . . 104 Springfield Suburban St. Ry. Co., pet'r flooations) . . . 19, 82, 86 Springfield & Eastern St. Ry. Co. (express) . ... 47 State Dike, Re ... . . . . . 71 State Road. See Troy & Greenfield R. Station St., Re (crossings) . . . 32 Stedman c. N. Y. & N. E. R. Co. (whistling) . . ... . . 115 Stevens Linen Works v. N. Y. & N. E. R. Co. (rates) . . . . 48, 67, 58, 59 Stockbridge selectmen, pet'rs (location Berkshire St. Ry.) . .... .86 Stone V. Worcester & Nashua R. Co. (milk) ... 90 Stoughton sel. v. O. C. St. Ry. Co. (fares) . . . .62 Stoughton u. Blue Hill St. Ry. Co. (fares) . . ... 65 Sudbury, sel. of, pet'rs (crossings) . 32 Swampscott v. B. & N. St. Ry. Co. (fares, etc.) ... 12 T. Taunton v. N. & T. St. Ry. Co. (service) . . . .... . . 12 I. T. & P. St. Ry. Co. (fares) .... 62 Taunton, New Bedford, FaU River t. N. Y., N. H. & H. R. Co. (service) ... 3 u. N. Y., N. H. & H. R. Co. (whistling) ... .115 Taunton River bridge (Fall River) . .24 Taunton & Pawtucket St. Ry . Co. , pet'rs (express) . ... 46 Taussig D. W. E. St. Ry. Co. (abandonment tracks) . . .10 Templeton cit. v. Templeton St. Ry. Co. (location) . . . . 80 Templeton St. Ry. Co., Templeton cit. v. (location) . 80 Thayeri.B., Hartford & Erie E. Co. (complaint) . . 21,59 Thyng v. Fitchburg R. Co. (cars) . . 112 Todd V. B. & M. R. (icing milk) . . ... 92 Topsfield, SaUsbury et al. v. B. & M. R. (school rates) . .... 52 Train Service, investigation (report to General Court) . . . 113 Trafton v. B. & M. R. (baggage) . . 19 Troy & Boston R. Co. j>. Troy & Greenfield R. Co. (State road) . 96 Troy & Greenfield R., B., H. T. & Western R. Co. t. (State road) . . . 96 Fitchburg R. Co. v. (State road) . . .96 Troy & Boston R. Co. c. (State road) . . . 98 Yard of. Re (State road) . . 96 Tunnels, Boston & Eastern (under Boston harbor) ... . 114 Cambridge — Main street (route, etc.) . ... 114 East Boston (night cars) . . 114 Washington street (entrances, etc.) (location) . . 114 u. Union St. R. Co. of New Bedford, pet'r Oocation) ... . . 80. 81 Cobb D. (fares) . . . . 61 Uxbridge v. N. Y. & N. E. R. Co. (station) ..... 99 «. P. & W. R. Co. (station) 97 V. Vineyard Haven s. N. B., M. V. & N. Steamboat Co. (rates, etc.) ... 17, 61 w. Wakefield 1). B. & M. R. (station) . .97 D. B. & N. St. Ry. Co. (fares) . . 62 et al. ». B. & N. St. Ry. Co. (fares) . . ... .63 Waltham, Sel. of, pet'rs (crossings) . . . .... 33, 34 Waltham St. Ry. Co., pet'r (location) . . . 77, 78, 87 (joint use of tracks) .... . 107 Ware v. B. & A. R. Co. (damages) . . . . , .42 Ware River R. Co., pet'r (crossing) ... .35 Wareham v. Cape Cod R. Co. (crossing) . . . ... . 39, 54 V. N. B. & O. St. Ry. Co. (fares) ... . 64, 83 V. Onset Bay Grove Assoc, (location) . . . .... .71 Wareham et al. u. 0. C. R. Co. (service) .... ... .5 XX INDEX TO CASES. PAGE Warren, Brookfield & Spencer St. Ry. Co., No. Brookfield v. (fares) . 64 (service) ..... 11 Wayland u. N. & C. St. Ry. Co. (service) . 12 Webster i. N. Y., N. H. & H. R. Co. (wliistUng) 115 Webster ». Norwich & Worcester R. Co. (station) 97 Webster & Dudley St. Ry. Co. (accident report) 105 Welby B. Metrop. R. Co. (returns) . 95 V. Metrop. R. Co. et al. (rates) . . .61, 77, 104 B. Middlesex R. Co. (complaint) , 21 Wellesley v. B. & W. St. Ry. Co. (station) . 100 Wellesley I. N. & C. St. Ry. Co. (searchlights) . 95 Wellesley sel. pet'rs (bridge) . 23 (speed) ... . .108 Wellman t. B., W. & Pt. S. R. Co. . . 9 West End St. R. Co., pet'r (service) 10, 100 (stock) . 100, 104 (alteration of crossing) . 39 and Boston Elevated Ry. Co., pet'rs (lease) . . 70 and Boston Elevated Ry. Co. (report to Legislature on proposed merger) , 28 (Boston Elevated Ry. Co., pet'r — removal tracks) 10 Cambridge aldermen v. (fares) . . . . 66 Maiden c. (location) . . . .80 pet'r (locations) . . ... . 77, 78 Taussig V. (revocation location) . 10 tunnels proposed by . 114 Western Mass. Co., pet'r (fares) . . 66 West Newbury v. B. & N. St. Ry. Co. (service) . 12 West Roxbury v. B. E. Ry. Co. (fares) , . 65 West Somerville Bd. Trade o. B. & M. R. (service) . . .4 West Springfield v. B. & A. R. Co. (petition) . 22, 64 Westborough v. B. & A. R. Co. (rates) 63 Sel. of, pet'rs (bridges) ,23 Weston V. Fitohburg R. Co. et al. (rates) . . . 63, 56 Whately v. N. Haven & Northampton R. Co. (service) . 3, 5, 13 Citizens-of, pet'rs (crossings) . 31, 34 Wheelock v. W. C. St. Ry. Co. (intoxicated persons on cars) 113 Whiting et al. v. B. E. Ry. Co. (station) 100 Whitman «. N. Y.. N. H. & H. R. Co. (service) . 5 Whitman & Plymouth St. Ry. Co. (location) . 70, 81, 86 Whitney v. Milford & Woonaocket R. Co. (rates) 47, 51, 53 Wilbraham, pet'r (crossing) 34 Willard v. O. C. R. Co. (express) . . , . 44 Williamsburg cit. o. Northampton St. Ry. Co. (fares) 62 Williston, pet'r (tracks) . 87 Wilmington et al. v, B. & L. R. Corp. (service) . . 8, 9 I. B. & M. R. (station) . 100 Winchendon v. Cheshire R. Co. et al. (crossing) 39 Winslow 0. B. & A. R. Co. (rates) Winthrop v. B., R. B. & Lynn R. Co. (rates) V. B., W. & Pt. Shirley R. Co. (service) Cit. V. Revere & Winthrop St. Ry. Co. (location) Withington u. B. & M. R. (rates) Woburn v. B. & L. R. Corp. (service) Wood et al., pet'rs (milk transportation) . Worcester v. B. & A. R. Co. (complaint) Re Tracks in ... . Worcester Consohdated St. Ry. Co., Grafton v. (express) (service) Spencer v. (fares) Report to House (service) Wheelock v. (intoxicated persons on cars) Worcester Merchants Assn. (common carrier) Worcester & Nashua R. Co. (Anon. v. Fitchburg R. Co., et al. — stations) Clinton v. (track) . ... Stone V, (milk) (Tracks in Worcester, Re) Worcester & Shrewsbury R. Co., Draper v. (service) 51 48. ,50 ,55 5, 39, 112 80 60 6, 8,9 91 22 ,23 71 47 64 62 12 113 47 97 110 90 71 3,14 ,60 1,57 INDEX TO CASES. XXI PAGE Worcester & Southbridge St. Ry. Co., report to Legislature 104 (stock) .... . 102 accideat finding . 2 Worcester & Webster St. Ry. Co., pet'r (location) 84 Worthy Paper Co. v. B. & A. R. Co. (rates) .... 50,51,52,65 Y. Yarmouth sel., pet'rs (station) 99 Young animals, Re transportation of ... . 52 LIST OF STATUTES CITED. 1846, .;. 185, §5 1851, <;. 128 1854, <;. 124 1864, c. 229 1865, c. 176 1867, 0. 339, §1 1869, 0. 252 c. 408, §§4, 1871, ^=. 343 c. 381, §34 §35 c. 389 c. 392 1872, c. 180, §3 c. 262 0.313 0.348 1874,0. 29, §12 §15 C.305 0.332 c. 372 §5 §7 §116 . §122 . §138 . §§ 140-141 §§ 165-168 §182 . 0. 381, §38 . 1878, 0. 135 1879, 0. 205, §1 o. 206 §2 0.284 1881,0.194 1882, c. 64, §3 u. 136, §1 u. 162 o. 173, §4 C.225 0.244 0.265 1883, 0. 259 1884, u. 222 o. 279 1885, 0. 194 0.334 1886, 0. 142 PAGE PAGE 27 1886 0.242 29 71 C.360 9 7 1887 0.189 98 26 0.362 . 114 . 13 1887 0.366 . 100, 101 44, 56, 90 0.391 16 56 0. 413, §5 . 114 21 1888 0.278 107 71 1890 0. 428, §1 39 61 §3 33 61 1894 0. 59 29 101 0.462 102 101 0.469 45 35 >;. 517 101 . 38 1896 0. 501 88 37,38 1897 0. 600 70 64 §10 65 105 1898 0.404 . 36 100 o. 578 63, 81, 85, 86 38 §1 . 78 4 §13 . . 63, 79, 80 4,22 §§ 15, 16 . 78 21, 38, 39, 112 §26 61 112 1900 0. 197, §4 66 . 25 C.206 24 72,76 0.472 33 26 0.468 41 . 25 1902 0. 370, §§1,2. 22, 100 35,37 0.399 79, 80, 81 98 0.432 . 102 . 37 O.440 31,39 66,58 0.441 102 58,59 0.533 32 27,96 1903 0.143 107 21,37 0. 163 . 41 105 0.173 60,61 71 0.202 46 67 0.297 1 90 0.476 85,104 90 1905 0.376 11 92 1906 0.339 11 26 1906 0. 463, Parti: 112 §6 . 112 29 §7 60,61 67 §8 15, 21, 25 . 22 §9 19, 22, 99, 105 57,58 § 10 22,76 94 §23 23, 29, 38 72,73,74 §24 . 38 101 §26 . . 32 29 § 29 31, 38, 39 76 §34 31,33 38 § 36 31,39 115 §36 . 31,39 48 §37 . 39 4,19 §39 31,36,39 XXIV LIST OF STATUTES CITED. 1906,0.463, Part I — Con. §42 §43 §46 §47 §58 §62 §67 1906, c. 463, Part II: §1 §2 §3 §12 §14 §17 §18 §19 §21 §22 §23 §24 §26 156 §69 §72 §75 §81 §103 . §106 . §111 . §113 . §120. §121 . § 122 . §126 . §137 §138 . §143 . §144 . §145 . §148 . §160 . §169 . §170 . §172 . §174 . §175 . §176 . §179 , §181 . §185 . §186 . §187 §183 . §189 . §195 . §196 . §197 §198 . §199 . §200 . §201 . §202 . §203 . §204 . §205 . §206 . §207 §208 . §209 . PAGE 1906, c. 463, Part II — Con. PAGE 31,39 §246 . 45 31 §251 . 35, 71, 93 94 1906, c 463, Part III: 94 §1 ■ • 81, 85, 86 24 §6 18 1 §7 63 77, 79, 80, 81, 104 7 §13 §31 . 85 87,88 . 81 §32 . 86, 87, 88 21, 22, 38, 39 §33 . . . 103 . 27 §36 22, 107 72,73 §42 . 104 . 37 §43 85, 86, 104 75,76 §46 85, 104 72,73 §54 88 . 75 §58 . 102 72, 75, 76 §64 . 77,78,79 . 76 §65 77, 78, 79, 81, 87 25,26 §66 79 . 25 §74 11, 107 72,73 §75 108 4,19 §76 11 . 101 §90 67 72,73 §99 65 72 §100 . 61 , 72 §103 . 22 67, 100, 101 §107 102 35, 37, 38 §113 3« 32, 33 §114 . 36 31, 32, 33, 34 §115 . 36 29 §116 . 36 30 §157 21 . 29 §158 . 22 . 71,72,73 1906, 479 65 8, 13, 14, 98 1906 c 516 74 8,98 §5 75 23 1907 c 402 46,47 37 1907 c 585 7 37 1908 c 266 87 115 c 390 39 29 u 530 65 112 542 23 114 c 636 103 68 „ 649 . 57 92 1909 c 47 23,40 92 1910 L- 536 100 92 c 544 39 26 V 551 104 48 „ 567 65 21 u 588 . 44 20 c 633, §1 90, 91, 92 54 §2 90, 91, 92 54 1911 c 486 39 45 . 16 General Statutes. 44, 56, 58 u 63, §§ 68, 59 34 45 §114 27 . 27 . 51,58,69 Public Statutes. 58,59 0. 27, §75 31 57,58 0. 98, §§3, 15 15 48,90 c. 112, §3 27 48,90 §15 16 48, 90, 92 §16 19, 22, 99, 105 27.96 §17 22,76 27,96 §38 75 4, 27, 96 §39 75 27,96 §41 75,76 . 4,7 §42 76 LIST OF STATUTES CITED. XXV Pvblic Statutes — Con. PAGE Revised Laws 112, §43 . 26 u. Ill , §158 §44 25 §161 §115 67 §169 §123 . . 33 §178 § 125 . . , 31, 32, 33 §179 §129 23, 29, 32, 38 §184 §130 38 §185 §138 . 29 §186 §139 71, 72, 76 §189 §156 8, 13, 14 §202 §157 8 §211 §161 37 §212 § 179 26 §214 §182 20 §215 §187 16 §216 §190 51, 58, 59 §217 §192 48,90 §221 §193 90 §225 §194 48 §229 §§ 216, 217 27 §230 §218 4,27 §231 §220 7 §233 §224 . 71 §239 . 113, . 19 §240 §7 18, 77, 104 §241 . . §18 103 §242 §21 77 §243 §38 76 §244 §47 65 §245 §48 . 106 §246 §49 22 §247 §248 Revised Laws. §263 1, §2 60 §269 25, §83 31 §272 70, . 45, 56 §273 98, §3 16 §274 §14 15 §275 §15 15 §276 109, §30 101 §279 111, §1 . 85 0. 112, §6 §2 21,38 §7 §3 27 §9 §12 . 112 §11 §14 15,25 §20 §15 19, 22, 99 §26 §16 22,76 §29 §34 72 §30 §40 . 72 §31 §43 72,75 §32 §45 25,26 §36 §46 25 §39 . §47 . 72 §41 §74 4,19 §65 §89 72 §66 §92 72 §67 §97 . 72 §68 § 120 . 67 §72 §123 35,37 §73 §128 , 32 §77 §130 31, 32, 34 §78 §134 23, 29, 38 §79 §135 38 §84 §136 32 §88 § 143 29 §92 §144 30 §100 . §145 . 29 u. 121, §§ 24, 26 §149 38,39 u. 122, §1 §151 33 <;. 125, §§ 17, 18 §152 38 c. 126, §11 -Con. PAGE 39 71, 72 . 24 8, 13, 98 8,93 23 37 37 115 29 112 114 68 92 92 92 26 ■ 48 21 20 54 45 16 44, 56, 58 45 27 51,58 . 58 67,58 48,90 48,90 48,90 1 . 45 27,96 27,96 4, 27, 96 96 . 4,7 35, 71, 93 18 77,80 86, 86, 104 . 86,87,88 . 100 102, 103 104 77 77, 79, 81 79 11 76 . 108 36,85 65 61 105, 107 107 22 105 88 87 21 108 108 94 102 INDEX-DIGEST. IThe volume numbers refer to the year in which the report was presented; thus, the leport for 1911 was presented in January, 1911, covering the transactions of 1910. Cross references are to the number of the paragraphs-! ABANDONMENT. Of railroad. See 21, 93. Of stations. See 110, 111, 112, 113, 114, 115, 118. Of street railway service. See 81, 83, 91, 92. ABOLITION OF GRADE CROSSINGS. See 273, 280, 281, and Crossings, VI., VII. ABOLITION OF TRANSFERS. See 590, 592. ABSORBING THE ARBITRARY. See 519, 520. ABUTTERS. Rights as to locations. iSce 660, 688, 698-701. ACCESS. To land crossed by railroads. See 282, 286, 293, 294, 297. To stations. See Stations. ACCIDENTS.! For a general discussion, see 1870, 10 ; 1871, 13; 1872,106; 1906,55-65. For importance of giving immediate notice to Board in case of train accidents, also of making diagram of wreck, and taking photographs when possible, see 1888, 28. What should be reported, see 1886, 19; 1905, 120. 1. The effort to eliminate human infirmity as a contributing factor to railroad acci- dents has led to the invention of auto- matic devices intended to overcome any mistake of those in charge of the move- ment of trains; as, for example, the omis- sion to notice or obey signals. While much has been accomplished in this direction that has been productive of good ACCIDENTS — Con. results, automatic safeguards of this character are as yet in an experimental stage. At the same time the great im- portance of lessening the number of acci- dents due to the failure of some human agency, ought to insure a most thorough and unprejudiced testing of all inventions which seem to have substantial merit. 1907, 53. Street Railway. 2. It was a mistake to permit the car to attempt the connection, and there was a lack of the definite and positive orders which ought always to accompany a special service. This finding does not excuse the motorman, who, aware of the danger and famUiar with the surroundings, voluntarily approached this sharp curve at extreme high speed without having his car under control and without having taken the precaution to assure himself that the car could be brought under con- trol in season to pass the curve in safety. Charlton accident, 1906, 70. 3. The rule of the company reads: "Great care must be exercised by motormen in . . going . . . around sharp curves. Speed should be slowed down to that of a horse car with horses walking." Every motorman knows that these curves can be taken at twice that speed with perfect • safety, and the rule is continually violated with the knowledge and assent of the 1 Under the authority of section 263, chapter 111, Revised Laws, as amended by chapter 297, Actsof 1903 (now 1906, 463, Part I, § 62), the Board requires that reports be made: — 1. Of all accidents resulting in serious personal injury, aa well as in loss of life, whether of passengers, employees or others. 2. Of all accidents which do not result in personal injury, but which cause serious detention of passenger trains or electric cars. When an accident occurs at a station it should be so reported and the name of the station given ; when it occurs elsewhere the place should be described with reasonable accuracy. The word "station" will be deemed to mean that part of the railroad premises within which trains are cus- tomarily stopped for the purpose of receiving or discharging passengers. The word "road" will be deemed to mean all parts of premises the use of which are ordinarily necessary to the operation of the railroad or railway. The accidents to be reported are those which are incident to the movement of any engine or car. Each report should include a brief statement of the character of the accident and the nature of the injury. ACCIDENTS. ACCIDENTS -- Con. management. Nothing is more demoral- izing than a rule which employees are permitted to habitually disregard. lb. 4. To properly safeguard electric railways against accidents upon heavy grades or upon dangerous curves there ought to be established at a proper distance some sign readily visible to the motorman, warning him of his approach to the point ■ where slow speed is necessary. No such safeguard existed at or near the place of this accident. lb. 5. We make another suggestion, — that the management ought to keep a closer watch over the way in which employees perform their duty. It is not enough to arrange a schedule and be content if that schedule is made. The way in which motormen exercise the wide discretion necessarily given to them in changing speed under various conditions ought to be the subject of some system of competent inspection. This would benefit the faithful and skilled employee and lessen the risk of accident. lb. 6. Experience shows that for safe and suc- cessful work with lifting jacks suitable for raising a, modern street car there is need of expert knowledge; also of block- ing and other apparatus. The use of wheel guards properly attached to the trucks and proper control over the car must tend to make accidents in which there is occasion to lift the car exceedingly rare, and to meet the cases which do arise we believe in the maintenance of wrecking crews within convenient call prepared to move at once to the place of accident with all necessary apparatus. One trouble in the past has been that too little atten- tion has been given to wheel guards. Some in use are wholly inefficient and others so carelessly attached as to be practically worthless in keeping bodies away from the wheels. Report to Legislature, 1909, 268. 7. In our judgment the interests of humanity will be best served by requiring street cars to be equipped with suitable brakes, fenders and wheel guards, and by requiring the maintenance of emergency tools at proper places ready to respond at once to call. lb. 8. Statistics of street railway operation in Massachusetts disclose tew cases where ACCIDENTS — Con. conditions have made imperative the instantaneous recourse to lifting jacks, but should such occasion arise the suc- cessful use of jacks under these conditions can only be realized by intelligent action of men experienced in their use through special training. A living human being under a street railway car, subject to the hazard of inexperienced operation in attempts to lift the car is more likely to receive additional injury than otherwise, to say nothing of the danger existing to those in control of the lifting jacks and the persons who would naturally be drawn as spectators to the immediate vicinity, who may be caught by the slipping or canting of a jack which may result in the movement or overturning of a car under which a person is lying or around which persons are working or standing. lb. 9. Wherever a telephone system of de- spatching cars is in use, no change in the regular schedule should be authorized until a complete understanding of such change has been established with the crew of every car affected by it and such understanding made a matter of record. Circular, 1907, 227. 10. A conductor guessed at something about which he ought to have been sure, and, starting his car before another that he was to await had arrived, met it on the way in a head-on collision. The safety of all who ride upon trains and oars de- mands that such a failure in duty receive its full measure of condemnation. Back of this fault of the employee, however, was inexcusable carelessness of men directly connected with and representing the management. W. & S. St. Ry. accident finding, 1908, 224. 11. A special car which did not appear in the schedule of the day was to be run over a, single track railway upon which other cars were moving at high speed. Such a movement ought never to be authorized without a, clear understanding with both the motonnan and the conductor of every car which can be affected by the change in schedule, and this understanding should be secured through recorded instructions. If this rule is enforced accidents will be less frequent, and when they do occur it will be easier to fix the responsibility for them. lb. ACCOMMODATIONS. ACCIDENTS — Con. 12. In this instance an automatic electric signal failed to work. The accident was primarily due to the fact that the crew of one of the cars was acquainted with the defective working of this signal, while the crew of the other oar was in ignor- ance of it. A telephone plant would have made communication possible between the crews of both cars and the despatch- ing department in season to have avoided any accident. The need of some effective method of controlling the movement of cars has before been emphasized. Circular as to Chicopee accident, 1908, 227. 13. While the immediate responsibility for the movement of the car rested With the platform crew, yet the company is equally culpable in failing to provide its employees with the necessary mechanisms for the installation of markers. The Board is at a loss to understand upon what theory of management the opera- tion of this road is conducted, when the officials primarily responsible for the en- forcement of existing rules themselves fail to provide the instrumentalities nec- essary to make the rules effective. The rules requiring markers have been in effect since January 1, 1907; and yet during a portion of two seasons since that date cars have been operated upon this division with the knowledge and consent of the officials without markers or marker hangers. This condition of affairs has been permitted not only in violation of a rule of the company itself, but of an order of the Board under date of Feb- ruary 16, 1907, in which it was said: "In our opinion lights not maintained by the electric current should be carried at the rear end of all interurban cars." Accident Investigation, Berkshire St. Ry., 1909, 228. 14. To characterize this conduct as careless is to give it too light a designation. The safety of the travelling public requires that such a failure in duty receive the fullest measure of condemnation. lb. See also 159, 367, 7406, 796, 809, 922, 949. ACCOMMODATIONS. For baggage and express facilities, see Bag- gage; Express System. For equipment and management of trains and cars, see Trains and Cars. For the transportation of milk, see Milk Transportation. For station accommodations, see Stations. ACCOMMODATIONS — Con. I. Genebal Duty to ftjbnish Accom- modations. II. Pabticulab Duty tindeb a Stat- ute, CoNTBAcrr, etc. III. Sunday Teains. IV. Feeight. I. Genebal Duty to fubnibh Accom- modations. 15. A corporation owes the duty of affording reasonable accommodations to all dwelling in the vicinity of any part of its road. Middleborough v. Cape Cod R. Co., 1870, 107. Hyde Park d. B. & P. R. Co., 1874, 136. Medway v. N. Y. & N. B. R. Co., 1884, 127. Amherst u. N. London Northern R. Co., 1885, 120. Everett v. Middlesex St. Ry. Co., 1886, 105. Whately v. N. Haven & Northampton R. Co., 1887, 99. See also 1885, 50. 16. Even though to perform the duty is com- paratively onerous. Middleborough u. Cape Cod R. Co., 1870, 107. 17. And this duty applies especially to rail- roads with termini in other States, whose managers are likely to be interested in through traffic to the neglect of local interests. Amherst v. N. London Northern R. Co., 1887, 91. 18. The company has recently adopted a policy involving large expenditures in the development of its interstate traffic. Although this enterprise is in itself most commendable, we cannot agree that in- creased accommodation shall be furnished upon interstate lines at the expense of proper accommodation for communities within the State. The important place which the cities of Fall River, New Bed- ford and Taunton occupy in connection with State traffic and the amount of patronage which they bestow upon this railroad entitle them to an express service of a high order. Taunton, New Bedford and Pall River v. N. Y., N. H. & H. R. Co., 1906, 22. 19. It is no defence to a complaint of failure to perform the duties of a common carrier than a contract with other parties binds the corporation respondent to the prac- tices. B. & O. Telegraph Co. u. N. Y. & N. E. R. Co., 1885, 157. 20. Upon a complaint that a corporation had discontinued the operation of a portion of its road, a plea that this part of the fran- ACCOMMODATIONS . ACCOMMODATIONS — Con. ohise had been diminished in value by a grant of another location within the same territory was held to be no excuse, it ap- pearing that the lattrt location was not the property of a competing corporation, but of the corporation respondent. Guild I. N. Y. & N. E. R. Ck)., 1888, 154. 21. A corporation owning or controlling a railroad must operate it in a reasonable way, and cannot discontinue its operation, either actually or practically, except as the result of bankruptcy and a consequent abandonment of the property. Littleton ». Nashua, Acton & B. R. Co., 1879, 395. Amherst v. N. London Northern R. Co., 1885, 120. See also Brookline v. N. Y. & N. E. R. Co., 1878, 97. 22. Even when a company is insolvent, if it continues in operation it owes a debt to the public as well as to its bondholders, and within due limits the public have the first lien on its assets. Amherst 1). N. London Northern Co., 1886, 120. Hull 11. Nant. Beach R. Co., 1886, 122. 23. The duty of a corporation to furnish reasonable accommodation is not limited to the points covered by the charter, but extends to other places as well, in- cluding those which legislative power has connected with the line; and the Board will take jurisdiction of a petition by residents of a town on a connecting line asking that a through car may be placed on a certain train. Nor is it necessary that the connecting corporation, as re- quired by P. S. 112, § 218 [R. L. Ill, § 274, now 1906, 463, Part II, § 207], should bring the petition in question; but the relative rights of the two corporations, under the above statute, may be the occasion for another proceeding. Boyd V. B. & A. R. Co., 1886, 105. 24. The liability of a, corporation leasing the road of another corporation to supply reasonable accommodations to persons using the leased road is practically the same, whether the lease is made under the general railroad Act of 1874 (chap. 372) [R. L. Ill, § 276, now 1906, 463, Part II, § 209] or under the special Act of 1874 (chap. 332). Littleton v. Nashua, Acton & B. R. Co., 1879, 395. 25. Stat. 1886, 142 [R. L. Ill, § 74, now 1906, 463, Part II, § 56], was designed, among other things, to subject the as- ACCOMMODATIONS — Con. signee of a railroad sold under foreclosure to the same supervision and control as are exercised by the State over other rail- road franchises and property. 1887, 27. 26. Under 1886, 142 [R. L. Ill, § 74, now 1906, 463, Part II, § 56] the powers and duties of a purchaser under a power of sale contained in a mortgage, who holds as trustee for the owners of the mortgage bonds, are the same as the powers and duties of the original corporation, and the right of the public to reasonable accommodations is in no way diminished. McKenzie v. Nant. Beach R. Co., 1888, 147. 27. Nor is it in such case any excuse for failing to furnish accommodations that the owners of the bonds have failed to furnish the trustee with sufficient means or authority to perform this duty. 28. The Board will not recommend a cor- poration to operate a road and furnish accommodations while an injunction is in force restraining the corporation from operating the road. Hull V. Nant. Beach R. Co., 1884, 143. 29. But a failure to furnish accommodations is not excusable merely on the ground that should the management attempt to operate it, the court, upon application of the holders of executions against the road, would probably by injunction restrain its operation until the executions are satisfied. McKenzie v. Nant. Beach R. Co., 1888, 147. 30. It appeared from statements made at the hearings that the train leaving Boston for "West Somerville at 5.32 p.m. has been frequently so crowded that passen- gers have been unable to find seats in the cars. Such a condition of things ought not to continue, as there can be no good reason why suitable accommodations should not be regularly furnished upon this train. West Somerville Bd. of Trade s. B. & M. Rail- road, 1901, 99. Measure of Reasonableness. 31. In determining the extent of the duty of a corporation to furnish accommodations the number and character of the pop- ulation of a given section, the amount and value of its traffic and the sufficiency of ACCOMMODATIONS. ACCOMMODATIONS — Con. its present accommodations are to be considered. MidcUehorough u. Cape Cod R. Co., 1870, 107. Holden v. B., Barre & Gardner R. Co., 1884, 134. Everett t). Middlesex Ry. Co., 1886, 105. See also Whately u. N. Haven & Northampton R. Co., 1887, 99. 32. This cannot be determined by a fixed rule, but must depend on traffic, circum- stances of situation, pursuits of the community and means at the disposal of the corporation. Littleton v. Nashua, Acton & B. R. Co., 1879, 395. 33. In determining what accommodations are reasonable, a universal practice, as found to exist among roads of the same character under similar conditions of time, place, traffic, etc., is the best test. Hyde Park d. B. & P. R. Co., 1874, 136. Services Rendered at a Loss. 34. The duty of furnishing reasonable ac- commodations exists, even though the ser- vices rendered are not remunerative. Biookline i. N. Y. & N. E. R. Co., 1878, 97. Winthiop V. B., W. & Pt. Shirley R. Co., 1884, 146. Hull E. Nant. Beach R. Co., 1888, 122. Amherst v. N. London Northern R. Co., 1887, 91. 35. And this duty requires that in some cases stops be made, trains be run, or branches be operated, which do not pay for the ex- penses incurred. Holyoke o. Holyoke & Westfield R. Co., 1882, 117. Hull V. Nant. Beach R. Co., 1883, 145; 1886, 122. Boyd V. B. & A. R. Co., 1886, 105. Whately v. N. Haven & Northampton R. Co., 1887, 99. See also 1885, 50. 36. A corporation will not be called upon, unless in exceptional cases, to afford in- creased facilities where no returns approx- imating to the outlay involved could be expected within a reasonable lapse of time. Sharon ». B. & P. R. Co., 1872, 211. Whitman v. N. Y., N. H. & H. R. Co., 1912, 121. Cobb V. B. & M. R., 1912, 118. Sharonji.N.Y., N. H. & H. R. Co., 1912,121. 37. Although it is reasonable, in exceptional cases, to require a corporation, in pursu- ance of this duty, to run some trains at a loss, a corporation was not required to do so when the proposed train was to run thirty-five miles, at a cost of about forty ACCOMMODATIONS — Con. cents a mile, while the number of passen- gers accommodated was to be not more than one daily each way. Wareham et al. v. O. C. R. Co., 1882, 104. 38. But where the accommodation was desired to enable the petitioners to per- form their legal obligations as jurors, witnesses, or otherwise, the Board rec- ommended such accommodation as would relieve the special hardship of the pe- titioners, provided it could be done with- out disproportionate cost to the corpora- tion. lb. \ See GuUd v. N. Y. & N. E. R. Co., 1888, 154. 39. Upon a petition for trains during the winter season upon a road intended for summer travel only, the question being whether this was reasonable, it appeared that during the five months covered by the petition a loss of over $5,000 would be incurred, which would create a deficit for the whole year, and the petition was not granted. Hull V. Nant. Beach R. Co., 1883, 140; 1886, 122; 1888, 146. Winthrop ». B., W. & Pt. Shirley R. Co., 1884, 146. 40. A petition that a station be recommended at a. certain point during the summer season was granted, it appearing that the station was needed for the reasonable accommodation of the public, and that the expenses of construction and of stopping trains would be moderate, even though it was probable that the receipts of the corporation would not be increased except in the distant future. Hingham ?>. Nant. Beach R. Co., 1883, 148. See also Holden v. B., Barre & Gardner R. Co., 1884, 134. McKean v. N. Y. & N. E. R. Co., 1884, 141. Guild 1). N. Y. & N. E. R. Co., 1888, 164. 41. The expediency of running any one train to a given place is to be judged, not only by its direct earnings, but by con- sidering its effects on the general pros- perity of the place. Amherst i>. N. London Northern R. Co., 1886, 120. 42. It an accommodation asked for is rea- sonable, it need not be shown that it will increase the profits of the corporation. Hanover ». Hanover Br. R. Co., 1387, 90. 43. A petition that an early train to Boston from a neighboring town be restored and continued throughout the year was ACCOMMODATIONS . ACCOMMODATIONS — Con. granted, where it appeared that, though at first the train would be run at a loss to the corporation, yet ultimately a profit- able traflSc would be built up. Sharon v. B. & P. R. Co., 1882, 121. See aleo Holden ». B., Barre & Gardner R. Co., 1884, 134. 44. Even though a railroad had not divided its passenger service into through and local trains, no new station was recom- mended at a point where it appeared that the traffic would be unremunerative and without prospect of becoming remunera- tive. Easton b. O. C. & Newport R. Co., 1870, 111. 45. Where it appeared that a large chari- table institution, situated three miles from a thriving city on the line of a rail- road having no way stations, was without railroad accommodations, the Board re- quired, on the ground of public con- venience, a reasonable number of stops to be made near the institution, even though it was not certain that the number of passengers would pay the cost of granting the facilities. Holyoke u. Holyoke & Westfield R. Co., 1882, 117. 46. It is not an excuse for operating an unprofitable road or portion of a road without reasonable accommodations that the control of it is retained to prevent a rival from using it, or for any other pur- pose. Medway t). N. Y. & N. E. R. Co., 1884, 127. See also under Street Railway Accommoda- tions, infra. 47. It is material, in determining the extent of the duty of the corporation to furnish better facilities, that one cause of low receipts is its failure to furnish proper service. McKean v. N. Y. & N. E. R. Co., 1884, 141. Amherst v. N. London Northern R. Co., 1887, 91. 48. Whether a road or a portion of a road is profitable to the corporation owning it does not depend entirely upon the amount of the receipts, and so long as it is retained, when it can be disposed of, for the pur- pose of preventing a rival from using it, or for any other purpose, it cannot be regarded as held at a loss. Medway v. N. Y. & N. E. R. Co., 1884, 127. 49. What shall be regarded as remunerative, in determining whether a proposed service ACCOMMODATIONS — Con. shall be undertaken by a corporation, does not depend on whether the outlay is re- placed by immediate and direct returns; it is sufficient if in the long run and in its effect upon the general business of the road, the proposed accommodation will be of advantage to the corporation, pro- vided the discrepancy between the cost and the probable immediate return be not extreme. Woburn t. B. & L. R. Corp., 1872, 197. 50. The record of this train shows that ow- ing to the small number of passengers carried it had been run for a long time at a daily loss. This was undoubtedly the reason of its discontinuance. But the train cannot be treated as independent of the rest of the system with which it forms a connecting link. The fact, too, that its patrons, among whom are quite a number of pupils in regular attendance upon schools at a distance from their homes, are necessarily dependent upon it for transportation, has a material bear- ing upon the case. Southampton v. N. Y., N. H. & H. R. Co., 190S, 20. 51. In ascertaining the cost of running an additional train to and from a given place, the correct method is not to divide the total expenses of the railroad by the total number of miles run in a year, thereby ffiiding the average cost per train mile, and to multiply the quotient by the number of miles in the route in question, for a large proportion of the annual ex- pense is a fixed quantity, not requiring to be duplicated for each additional train ; the proper method is to ascertain what new and additional expenditures would be involved in the desired increase of service. Sharon i. B. & P. R. Co., 1872, 211. 62. For cases where the question arose whether furnishing the accommodation requested would so drain the resources of the corporation as to interfere with the provision of proper facilities at other points, see Rockland i. Hanover Br. R. Co., 1888, 150. Guild D. N. Y. & N. E. R. Co., 1888, 154. 53. In passing upon a petition for postpone- ment of the time when a penalty for non- operation of the New Bedford and Fair- haven ferry should be paid, the Board said: "It is evident that the General Court contemplated the probable occur- rence of conditions under which it would be reasonable and proper to suspend the ACCOMMODATIONS. ACCOMMODATIONS — Con. running of the forfeiture. Otherwise, express provision for such suspension "would not have been made. The con- tingencies which wer&.had in mind are not specified in the act. It is the duty of the Board to discover as nearly as may be what the intent of the Legislature was, and to be guided by it in the exercise of the discretion to which appeal is now made." O. C. R. Co., pet'ra, 1896, 160. 54. Tt is provided m the Public Statutes, chapter 112, section 220 [R. L. Ill, § 276, now 1906, 463, Part II, § 209 (see also Part I, § 67, and 1907, 585)], that when one railroad corporation leases the road of another, "the facilities for travel and business on either of the roads of the said corporations shall not be diminished." It must be supposed that the lessee in this case knew the character of the trafl&c on the road which it was about to lease, and that it intended not only to secure the advantages which the lease might afford, but to assume the burden, which the statute imposes, of maintaining at least as good o. service as the public was then enjoying. Conway and Shelburne Falls citizens c. N. Y. N. H. & H. R. Co., 1897, 131. 55. Were the plant equipped with every arrangement for the suitable accommoda- tion of patrons and operated with re- duced charges, and even with a train schedule upon the railroad especially adapted to the convenience of travel between New Bedford and towns on the Cape, it would still be impossible to develop sufficient traffic to make the receipts equal or even approach expend- itures. On the other hand, it is a mat- ter of common knowledge that, however unprofitable the ferry or the branch rail- road may be, the extensive and growing business interests of New Bedford bring to the company upon its other lines an increasingly large traffic, which it is fair to suppose is decidedly profitable. Special Report to Legislature on discontinu- ance of tlie Fairhaven ferry, 1905, 124. 66. But there is another point of view. In accordance with the provisions of chapter 124 of the Acts of 1854 the proprietors of the New Bedford and Fairhaven ferry transferred their property and charter rights to the Fairhaven Branch Railroad Company. The ferry thereby became a. ACCOMMODATIONS — Con. part of the railroad, constituting its con- necting link with New Bedford. In 1894, the Legislatvu-e directed the Old Colony Railroad Company, which had acquired this line, to resume the operation of the ferry. ' Treating the ferry as a constituent part of the railroad, the separate gain or loss in operating it is not of controlling importance. If the line between Tremont and New Bedford is to be continued, and we assume that it is, the ferry or some equivalent for it is indispensable to the proper performance of the service which has been undertaken. lb. 57. Unprofitable service must be performed in certain instances, and it is right that the burden of it should be borne by the general travelling and shipping public. In other instances, the accommodation of the few should give way to the larger interests of the greater number. It is plainly necessary, even if the general welfare alone is consulted, that the affairs of a company be prudently administered, and that a rule be applied in respect to demands of this kind which will require the performance of every rightful obliga- tion to the public and at the same time secure the practice of a reasonable econ- omy in the management of business. lb. In General. 58. A flag-station was recommended where it appeared that the reasonable wants of a large number of people required it, and that the interests of the company would be promoted by its estabUshment. Rogers v. B. & L. R. Corp., 1884, 137. 59. The erection of a new station in a town, in addition to one already existing, but at a point on the road situated some distance therefrom, was recommended where the Board was satisfied that it was required for the reasonable accom- modation of the public. Howland v. New Bedford R. Co., 1877, 123. 60. On the principle that the multiplication of stations and of stops should be dis- couraged, the Board refused to recom- mend a new station at a point on a road less than half a mile from another per- manent station, unless there were shown some express contract, not necessarily in writing, between the corporation and ' See Brownell v. Old Colony Railroad, 164 Mass. 29. ACCOMMODATIONS . ACCOMMODATIONS — Con. purchasers of land in the vicinity of the proposed station. Hodge V. B., R. B. & Lynn R. Co., 1879, 398. 61. Upon the proper construction of sec- tions 156 and 157 of chap. 112 [R. L. Ill, §§ 178, 179, now 1906, 463, Part II, §§ 137, 138], it -was argued that two stations, having been in existence for more than five years, cannot lawfully be relocated by uniting them in one station, because, it was said, this necessarily involves the abandonment of one of the stations in violation of the provisions of section 156 [138]: "The only question which the statute refers to the judgment of the Board, and which it has to consider, is whether, having due regard to the public convenience and to all the interests in- volved, the proposed relocation is on the whole desirable. If the Board is satis- fied that it is so, it seems to be its duty to signify its approval." Boston & Albany R. Co., petr., 1893, 147 \see Cunningham et al. v. Railroad Commission- ers, 157 Mass.]. 62. A petition that an accommodation train be run to the town of the petitioners, leaving Boston at or after 6 p.m., was granted where it appeared that there was sufficient demand for it on the score of public convenience and that a similar train, for towns similarly situated, was provided by every other railroad leading out of Boston. Wilmington et al. v. B. & L. R. Corp., 1870, 99. 63. But where the desired accommodation was supplied adequately in another way, by a, train leaving Boston at or after 6 P.M. and stopping at two other stations a short distance on either side of the station of the petitioners, the Board re- fused to recommend the stopping of an express train for the accommodation of the petitioners. Woburn v. B. & L. R. Corp., 1872, 197. 64. A petition that an additional train be stopped at the town of the petitioners was not granted where it appeared that the reasonable convenience of the many would be sacrificed to the wishes of the few. N. Worcester v. B., Barre & Gardner R. Co., 1884, 138. See also Draper d. Worcester & Shrewsbury R. Co., 1884, 131. 65. A petition that a time-table be changed, so as to make a desired connection, was not granted where it appeared that the ACCOMMODATIONS — Con. proposed change would cause more in- convenience than it would cure. Hanover v. 0. C. R. Co., 1888, 145. 66. A petition that the morning train from Boston to the towns of the petitioners be run at an earlier hour, for the convenience of business men, was granted where the annoyance and loss saved to the petition- ers by the change greatly exceeded that which was caused to the residents of other towns. Abington et al. v. O. C. R. Co., 1880, 234. 67. Upon a petition that an express train running daily each way be stopped, as at previous times, at a, certain station, the decision depends upon the balance of convenience between the petitioners and those desiring rapid travelling; such a petition was not granted, where the num- ber of the latter preponderated so greatly that it was unreasonable to delay them, and where the petitioners already had fair facilities. Richmond ». O. C. R. Co., 1884, 125. 68. Comparing the needs of these different parts of the travelling public we are con- vinced after careful consideration that the inconvenience and annoyance which would be caused residents of places be- yond Lynn should either of these express trains be stopped at Lynn fairly outweigh the slight advantage which would be re- ceived by the twenty or thirty travellers who would directly benefit from the change. Independent of other considera- tions we cannot look upon a schedule which gives to residents of Lynn an express train to Boston which carries them there in 18 minutes and allows them 19 minutes for reaching their various oflBces in the different parts of the city as open in any serious degree to unfavorable criticism. Lynn u B. & M. Railroad, 1904, 88. See also OUendorf et al. v. N. Y., N. H. & H. R. Co., 1904, 99. 69. The claim of a majority of persons, regularly using a certain train from Bos- ton, petitioning for a change in the time of its starting to the hour which best suits them, is not an absolute right, but is affected by the rights and claims of others; and where it appeared that the only detriment caused by the existing time of starting was ten minutes further detention in Boston, a, change of time ACCOMMODATIONS . ACCOMMODATIONS — Con. was not recommended, though a minor- ity only of those using the train opposed the change. Drake v. B. & M. Railroad, 1881, 227. Damon V. B. & M. Railroad, 1882, 113. 70. One portion of a community must sometimes submit to inconvenience or loss of facilities in order that others may have reasonable accommodation; and it was held to be no ground of complaint that, out of forty-two trains per day stop- ping at the town of the complainants, one express train each way had been with- drawn for the purpose of insuring close connections at important points. Blatie v. N. Y. & N. E. R. Co., 1887, 87. See also Amherat v. N. London Northern R. Co., 1887, 91. 71. Reasonable accommodation may re- quire that cars half filled or even empty shall sometimes be run over a portion of a railroad. Boyd t). B. & A. R. Co., 1886, 105. 72. Where a railroad divides its passenger service into through and local trains, it is not reasonable to require through trains to stop at the smaller stations. But where no such division is made, local travel should not be sacrificed to through travel, but should be given such rea- sonable accommodations as population, traffic, and insufficiency of present ac- commodations demand. Middleborough v. Cape Cod R. Co., 1870, 107. Sharon v. B. & P. Jl. Co., 1872, 211. 73. Where, in requiring of a company rea- sonable accommodations, the circum- stances of the case render it fair to make the measure of reasonableness as small as possible, that measure was held not to be satisfied by furnishing a single mixed train a day each way, running at the rate of eleven miles an hour and not enabling persons to reach and return from Boston, a distance of thirty miles, on the same day. The least accommodation reason- able was held to be one passenger train a day each way, running at least sixteen miles an hour, and enabling persons to reach and return from Boston on the same day; a double train service each way being held not necessary or reason- able. Littleton v. Nashua, Acton & B. R. Co., 1879, 395. See also Amherat v. N. London Northern R. Co., 188B, 120. Hull V. Nant. Beach R. Co., 1885, 122; 1888, 146. ACCOMMODATIONS — Con. 74. Where the Board had recommended that a company run between Boston and the town of the petitioners a daily train once each way, or its equivalent, it was held not to be a compliance with the rec- ommendation to run a "barge," which by connecting with another railroad enabled the petitioners to reach Boston at 2.30 t.M. on one day, and to leave Boston on their return at 7.35 a.m. the next. Hull D. Nant. Beach R. Co., 1885, 124; 1888, 146. 75. The railroad company proposes to transport passengers between Hull and the North Cohasset station by a coach or barge, and undertakes to furnish suitable and sufficient accommodation for all the passengers and their luggage. The Board recognizes the fact that such service will be greatly inferior to the service of trains, both in comfort and in speed, but deems that transportation by a clean, good barge of ample size is as satisfactory as any that can be furnished over the highway. Service by such a barge [making early and late train con- nections] will be deemed satisfactory ac- commodations, within the meaning of the statute. /6.,1891, 226. 76. For petitions for better train facilities, decided on their particular facts, see Wilmington v. B. & L. R. Corp., 1870, 99. Wobum V. B. & L. R. Corp., 1872, 197. BoUes ». B. & P. R. Co., 1882, 114. Rollins tJ. B. & P. R. Co., 1882, 114. Somerville v. B. & L. R. Corp., 1886, 125. Arlington v. B. & L. R. Corp., 1885, 126. Boyd u. B. &.A. R. Co., 1886, 105. Blakie ». N. Y. & N. E. R. Co., 1887, 87. Hanover v. Hanover Br. R. Co., 1887, 90. Alexander v. B. & M. Railroad, 1887, 82. Rockland ». Hanover Br. R. Co., 1888, 150. Wellman v. B. W. & S. R. Co., 1889, 248. Cape Ann residents o. B. & M. R., 1906, 79. , lb., 1908, 79; 1909, 108. Pahner v. B. & A. R., 1909, 106. Middleborough u. N. Y., N. H. & H. R., 1909, 111. 76., 1912, 119. For general discussion of transportation facil- ities in Western Massachusetts, see report to the legislature, 1910, 108. 77. For a decision under 1886, 350, relating to the station at Forest Avenue, see Payne b. N. Y. & N. E. R. Co., 1887, 103. 78. For workingmen's trains, see Fares and Freights, I. 10 ACCOMMODATIONS. ACCOMMODATIONS — Con. For a report to the legislature on trans- portation facilities on the B. & M. R., see 1912, 110. Street Railways. 79. A charge that the accommodations of a street railway company were insufficient was held not to be sustained by showing merely that at certain hours the cars were so crowded that some passengers could not have seats. Charles River St. Ey. Co. ». Boston, 1883, 137. 80. In considering whether a locality is sufficiently supplied with street railway facilities, positive testimony by one or more persons that better facilities are needed is of much more weight than negative testimony by others that they have no such need. 81. The Board is of the opinion that the municipal authority which grants a loca^ tion is the proper tribunal to determine whether the operation of cars upon such location shall be absolutely discontinued; and that a street railway company, having accepted a location, should operate cars thereon unless or until the municipal government .either expressly or tacitly consents to a discontinuance. Taussig et al. v. West End St. Ry. Co., 1892, 173. 82. No distinction in respect to accommodar- tion is to be recognized between passen- gers who travel on what is known as workingmen's cars and passengers who travel upon other cars. The argument that the company can properly give less consideration to the comfort and con- venience of passengers who pay cheap fares than it gives to passengers who pay higher fares cannot be entertained. Brockton v. Old Colony St. Ry., 1907, 71. 83. For decision as to removal of tracks from Marlborough Street, Boston, see Boston Elevated Ry. Co., pet'r, 1901, 377. 84. It is clear that a service divided between parallel streets, with a single track and turnouts in each, cannot be managed either with as great convenience to the public or advantage to the railway com- , pany. West End St. Ry. Co., pet'r., 1900, 158. ACCOMMODATIONS — Con. 85. It has been customary in past seasons to permit passengers to stand between the seats of open oars. This ought to be prohibited. While a limited number of passengers may stand in the aisles of closed cars without undue annoyance to each other or those seated, open oars are not arranged for any such use, and pa- trons who pay for a seat ought not to be subjected to the annoyance of having people stand between them and the seat next in front of them. Fall River citizens ». Old Colony St. Ry. Co., 1903, 73. 86. It is not to be expected that in the or- dinary street oar service passengers will always be provided with seats, but it is to be expected that if they are asked to stand they will be provided with proper standing room. In undertaking the pub- lic service a company at the outset and independent of all other considerations assumes the obligation to furnish reason- able accommodations, and it cannot afterward avoid this obligation upon the theory that because fares are cheap or income reduced these accommodations can be proportionately cut down. In- sufficient standing room for those who cannot be seated is not reasonable accom- modation for the ordinary travel upon a street railway. A. C. Davis %. B. & N. St. Ry. Co., 1904, 70. 87. The crowding of men and women upon one another in a street car for transporta- tion like packages 'of merchandise is an outrage upon the decencies of life as well as a menace to safety in travel. A com- pany is bound to provide for its regular patrons a suitable number of cars run at proper intervals, and the public are bound to co-operate with the company by dis- tributing themselves upon these cars in- stead of overcrowding the first car that arrives for the sake of gaining a minute or two in time.^ lb. 88. We cannot ask the company to furnish every passenger who travels upon a five- cent fare with a seat, but we must ask it to furnish enough cars to supply adequate room for passengers who are not provided with seats. Overcrowding in the aisles and vestibules is not only a discomfort to passengers but a menace to their safety. Standing between the seats of open cars 1 For an opinion that in the present state of transportation facilities it is not negligence for a corporation operating a street railway to permit passengers to come upon its car when they already are crowded, and that women voluntarily doing so assume risk incident to crowded condition, see 207 Mass. 24, 25. ACCOMMODATIONS. 11 ACCOMMODATIONS — Con. can only be justified under extraordinary conditions. To permit passengers to ride upon fenders and other perilous places upon cars is a disgrace to the manage- ment, and to accept fares from persons so trespassing. Brockton 0. Old Colony St. Ky., 1907, 71. 89. That a company is entitled to a fair return upon actual investment is a rule so often announced as to have become somewhat stale in the statement. It is a pertinent query, however, to what extent a company can inaugurate a public service and then because it proves to have weak earning capacity for that reason impose upon the public an ineflBcient conduct of the business. It is clear that everything absolutely essential to safety and ordinary comfort in travel should be provided, even though the entire earnings are exhausted in the effort. To this ex- tent the investor and not the public must take the chances of the enterprise. North Brookfield v. Warren, Brookfield & Spencer St. Ry. Co., 1906, 19. 90. The Board does not find in the conditions existing as to the development of the immediate territory nor the prospect of possible revenue from contiguous terri- tory — especially when considered with reference to the general conditions and needs in other sections served by this railway — justification for a recommenda- tion that the Park avenue line be at this time extended to Washington avenue. Revere v. B. & N. St. Ry., 1911, 83. 91. The company claims that it has law- fully abandoned this line and asks for a ruling that the right to do so is recognized in section 36, chapter 112, Revised Laws, [amended by 1906, 339 and now 1906, 463, Part III, § 76] which authorizes boards of aldermen or selectmen to order the removal of tracks from the streets in case their use has been discontinued for six mouths. The Board declines to make that ruling, being of the opinion that the statute in question provides a punishment for the discontinuance of a service rather than recognizes a right to discontinue it. Amesbury and Merrimac citizens o. Citizens Electric St. Ry. Co., 1906, 87.' 92. On the other hand, chapter 376, Acts of 1905 (now 1906, 463, Part III, § 74), ACCOMMODATIONS — Con. the statute under which the selectmen have acted, in our opinion has no application to a railway out of repair, out of use, and abandoned in fact if not in law. That statute originated in the days when horse cars threatened to encroach upon other uses of the streets. To protect such other uses the Legislature empowered boards of aldermen and of selectmen to limit the number and routes of cars and the extent to which they should occupy public ways. 93. But there are cases where the proper carrying out of the undertaking not only fails to return dividends, but risks the principal which has been invested. In such instances, the uninviting sugges- tion of a receivership promises nothing but a second receivership a little later on. Practically one of three things must happen: the service must be abandoned altogether; the public must accept some- thing less than satisfactory oidy because it is better than nothing ; or fares must be raised to provide the income necessary to furnish proper accommodations. 76. 94. It is true that in places where trafiic is heavy and cars follow in close succes- sion, passengers may be better distributed, to their own comfort and convenience, by a, rule requiring cars to make alter- nate stops at station points, but the facts do not present this justification for the action of the company in the instances to which this complaint relates. On the contrary it is clear that the company has had in mind the maintenance of schedule time, especially for the benefit of through passengers, even at the possible sacrifice of patrons taking the cars along the line and riding shorter distances. This is a discrimination which cannot be approved, and we must ask the company to recognize the right of people to take its cars at all designated points. Kennard v. B. & W. St. Ry. Co., 1907, 76. 95. The journey by street railway between West Newbury and Newburyport is in part over the Haverhill line of the Boston and Northern and in part over the Citi- zens' Electric street railway. The cars of the two companies are run upon dif- ferent schedules and for a long time there 1 199 Mass. 394. After the passage of 1906, 339 (now 1906, 463, Part III, § 76), the two towns went to the Supreme Judicial Court for action to compel the respondent company to resume traffic on the line in question. The petition was dismissed on the ground that the court could not say the discontinuance was "without right or lawful excuse." See also 191 Mass. 527. 12 ACCOMMODATIONS. ACCOMMODATIONS — Con. has been not only a lamentable failure to make connection but apparently an utter indifference to the resulting discom- fort to which passengers have been sub- jected by reason of such failure. There is no good reason why those con- necting railways should not furnish a practically continuous journey for patrons who rely upon them in daily travel be- tween their homes and places of business. West Newbury v. B. & N. St. Ry., et al., 1908, 90. 96. While the restoration of these stopping posts might be a convenience to residents along and in the immediate vicinity of these streets and avenues, yet the de- lays obviated by the elimination of these stopping posts and the consequent rar pidity of car movements, in our opinion provide a greater number of patrons speedy transportation upon the elevated system as a whole. Patrons v. B. E. Ry. Co., 1909, 117. See also Patrons v. B. E. Ry. Co., 1909, 116; Cambridge i>. B. E. Ry., 1912, 129. For petitions for better street railway facili- ties, decided upon their particular facts, see Hayden v. Lynn &. Boston Railroad Co., 1885, 127. Gloucester i). B. & N. St. Ry. Co., 1904, 76. Lynn ». B. & N. St. Ry. Co., 1904, 89. Bailey et al. v. L., L. & H. St. Ry. Co., 1902, 87. Swampscott V. Boston & Northern St. Ry. Co., 1905, 20. Taunton v. Norton «fe Taunton St. Ry. Co., 1906, 21. Wayland et al. v. Natick & Cochituate St. Ry. Co., 1906, 24. Lord et al. v. Newton and Boston St. Ry. Co., 1905, 17. Charlestown i). Boston Elevated, 1909, 123. Taunton v. East Taunton St. Ry., 1907, 78, 79. See aUo Report to House, Wor. Cons. St. Ry., 1904, 63. For discussion of night street car service, see 1897, 138. II. Paeticulab Duty tjndek a Statute, Contract, etc. Contract, etc. 97. A petition that more trains be stopped at the town of the petitioners wUl not be granted if it does not appear that the petitioners have a legal claim under a statute, or a claim founded on a contract by the corporation defendant or its pred- ecessors, or that there exists a reasonable demand for more trains. Hartshome o. N. Y. & N. E. R. Co., 1884, 140. ACCOMMODATIONS — Con. 98. Although land adjacent to a certain point on a railroad has been purchased and sold, before the building of the road, on the expectation, based upon representa- tions of the corporation or its agents, that a station would be established at that point, such expectations will be dis- regarded in determining whether the corporation should establish the station, unless the representations have been put in writing, or have been made a distinct element in the price paid by the corpora- tion for land. Easton v. O. C. & Newport R. Co., 1870, 111. 99. Agreements or understandings to locate stations, alleged to have been made when railroads were built, are entitled to no consideration unless they partake of the nature of a contract into which some bind- ing consideration enters, either in land, money or damages. Brookline v. N. Y. & N. E. R. Co., 1878, 97. 100. There was held to be sufficient evidence of a contract on the part of the corpora- tion, where, in a sale of land by a land company having close relations with a railroad corporation, a site for a projected station, deeded by the land company to the corporation and accepted by it, appeared, with the full knowledge and tacit consent of the corporation, upon the plan used at the sale, and the president of the corporation, who was also president of the land company, attended the sale and publicly stated, as an inducement to purchasers, that a station was soon to be built at the point designated. Hodge 1). B., R. B. & Lynn R. Co., 1879, 398. 101. Where, in such a case, the Board recommended that the company locate the station not exactly at the point desig- nated on the plan used at the sale, but at another point, substantially the same as regards the petitioners, and by change of circumstances rendered in every way preferable, and the corporation agreed to do so, the refusal of the petitioners to assent to such recommendation was held unreasonable; and, although their de- mand may have been legal and enforce- able at law, the Board would not assist them where it was also unreasonable. Adams d. B., R. B. & Lynn R. Co., 1880, 220. 102. Where parties have been induced to make investments at a certain point on a road under promises made to erect and maintain a passenger station at that point, by the managers of the road, they ACCOMMODATIONS. 13 ACCOMMODATIONS — Con. obtain an equitable claim upon the cor- poration for the continuance of the sta- tion. Payne v. N. Y. & N. E. R. Co., 1886, 109. 103. Where an accredited agent of a cor- poration states that a station will be placed in the town of the petitioners, as an inducement to demand moderate land damages, and the damages are in fact lessened on that account, the equitable claim of the community to acoommoda^ tions is strengthened, even though it ap- pears that the agent had no authority to make such a promise. Whately v. N. Haven & Northampton R. Co., 1887, 99. 104. The fact that the people of a town were induced to vote a subscription to the stock of a corporation to the extent of five per cent, of the valuation of the property in the town, by a promise to fur- nish certain accommodations, does not create a legal right to demand those accommodations, but is material to show an equitable right to them. Holden V. B., Barre & Gardner E. Co., 1884, 134. 105. Where it appears that the county commissioners, in locating a railroad, granted the petition of the corporation to cross a certain street at grade, and thereby relieved it of the expense of an overhead bridge, expressly in consideration of the fact that the corporation intended to erect a station at that point, an obligation to furnish such acconmiodation is estab- lished. Brookline v. N. Y. & N. E. R. Co., 1878, 97. 106. The claim of a community to reasonable facilities is strengthened by a grant of laud for a depot by the town, accepted by the corporation, at the time of construct- ing the road, and the acceptance of the grant binds the corporation to fulfil the promise implied by such acceptance. Amherst v. N. London Northern R. Co., 1887, 91. 107. A valid agreement by a corporation in relation to facilities to be furnished to a certain community is binding upon par- ties who subsequently take a mortgage upon the property of the corporation and by foreclosure obtain title. Brookline t>. N. Y. & N. E. R. Co., 1878, 97. Medway c. N. Y. & N. E. R. Co., 1884, 127. ACCOMMODATIONS — Con. 108. Or upon any successor in title, assum- ing the duties and obligations of its predecessors. Brookline v. N. Y. & N. E. R. Co., 1878, 97. See also Payne «. N. Y. & N. E. R. Co., 1886, 109. 109. There is no statute of limitations against the public, and upon a petition alleging an agreement on the part of a corporation to furnish certain accommo- dations, it is immaterial that the agree- ment was entered into twenty-five years ago. Brookline v. N. Y. & N. E. R. Co., 1878, 97. Stations — Revised Laws, 111, § 178 (now 1906, 463, Part II, § 137). 110. Wherever the statutory period of five years, required by P. S. 112, § 156 [R. L. Ill, § 178, now 1906, 463, Part II, § 137], has elapsed, the parties concerned have a remedy at law, and need not apply to the Board. Payne v. N. Y. & N. E. R. Co., 1886, 109. 111. Statute 1865, 175 [1906, 463, Part II, § 137], relating to passenger stations established for five years, was not retro- active, and therefore did not apply to the case of a station established for the required period but abandoned before the passage of the act. Middleborough v. Cape Cod R. Co., 1870, 107. 112. No law forbids the discontinuance of freight depots or of side tracks connected with them, but the spirit of the law ap- plies wherever the reasonable accommo- dation of the public demands that the depot or other facilities be not discon- tinued, and where it is proposed unreason- ably and inequitably to abandon them; and the Board will in such case make the proper recommendation. Chelmsford v. B. & L. R. Corp., 1886, 101. 113. Whether under P. S. 112, § 156 [1906, 463, Part II, § 137], a station may exist without the erection of a building or even the ownership of land by the cor- poration, — quaere. Draper v, Worcester & Shrewsbury R. Co., 1884, 131. 114. Under P. S. 112, § 156 [1906, 463, Part II, § 137], distinct evidence of an intention on the part of the corporation to establish a station must be given in order to fix upon the corporation the burden of maintaining the station. lb. 14 ACCOMMODATIONS. ACCOMMODATIONS — Con. 115. Under P. S. 112, § 156 [1906, 463, Part II, § 137], the accommodation fur- nished by the stopping of trains at a station cannot lawfully be diminished substantially unless there has been a, proportional diminution at the other stations. Gordon 8. B. & A. R. Co., 1884, 143. 116. It was held not to be a substantial diminution of accommodation where an express train, leaving Boston for the West at 6 P.M., discontinued its stop at the town of the petitioners in order to make postal connections at Albany, and in its stead was placed an additional express train, leaving Boston at 5.25 p.m., and stopping at the town of the petitioners. lb. 117. In considering whether the accommo- dations at a station are diminished sub- stantially or not, the business of the whole road is to be regarded, the objects sought in operating it, the number of persons incommoded by the change, the extent of the inconvenience, and the object of the change and its convenience to others, including the advantage gained, if any, in the transportation of the mails. lb. See also Blakie o. N. Y. & N. E. R. Co., 1887, 87. 118. Where a point on a railroad has been so used for five years as to constitute a station, the corporation must continue to" stop its trains at this point as before, however disastrous to the corporation or inconvenient to the bulk of its pas- sengers such stopping may have become. Draper s. Worcester & Shrewsbury R. Co., 1884, 131. 119. The taking away of two daily trains from a station having six daily trains was held a substantial diminution of accom- modation under P. S. 112, § 156 [1906, 463, Part II, 137]. McKean s. N. Y. & N. E. R. Co., 1884, 141. See also Amherst v. N. London Northern R. Co., 1886, 120. 120. Public Statutes 112, § 156 [1906, 463, Part II, § 137], is not violated when a corporation makes a proportional re- duction of facilities at all stations, as by withdrawing from the road one train a day each way. N. Worcester v. B., Barre & Gardner R. Co., 1884, 13S. Gordon «. B. & A. R. Co., 1884, 143. ACCOMMODATIONS — Con. 121. Public Statutes 112, § 156 [1906, 463, Part II, § 137], was held not to be violated when it appeared that a new train, stopping at the station in question, had been added to take the place of one converted into an express train. Richmond v. O. C. R. Co., 1884, 125. 122. Public Statutes 112, § 156 [1906, 463, Part II, § 137], does not require that the amount of accommodation furnished at each station shall always bear the same ratio to that furnished at every other, or that the facilities at one station may not, for good reasons, be so reduced that they shall be less than those of another station ; and the statute was held not to be violated where one express train each way, out of forty-two trains per day stopping at the town of the complainants, was withdrawn for the purpose of insuring close con- nections at important points. Blakie v. N. Y. & N. E. R. Co., 1887, 87. 123. Public Statutes 112, § 156 [1906, 463, Part II, § 137], does not require that every train which had been run for five years should be run forever, even if by other trains necessarily placed on the road such running had become needless or dangerous, or that every stop which had been made for that period shoud be made forever, without regard to the needs or rights of travellers from other places. 16. 124. Whether the statute should be con- strued as forbidding only such substantial diminution of accommodation at a sta- tion as will reduce it below that generally furnished at other stations, • — quaere. lb. 125. Under P. S. 112, § 156 (1906, 463, Part II, § 137], the comparison is to be made with the accommodations furnished at other stations, and not with the traffic or revenue at those places, the statute being intended chiefly for the protection of those who use stations unremunerative ■ and comparatively insignificant; and the amount of business or profit at the station in question is immaterial. McKean ». N. Y. & N. E. R. Co., 1884, 141. Payne c. N. Y. & N. E. R. Co., 1886, 101. See also Gordon i. B. & A. R. Co., 1884, 143. 126. Whether, under P. S. 112, § 156 [1906, 463, Part II, § 137], it is lawful to dis- continue a stop made not for local travel but for convenience in the operation of the road, — as for the purpose of taking water. ACCOMMODATIONS . 15 ACCOMMODATIONS — Coii. and only incidentally for the accommoda- tion of residents, ■ — qumre. Gordon v. B. & A. R. Co., 1884, 143. III. Sunday Trains. 127. Under P. S. 112, § 15 [R. L. Ill, § 14, now 1906, 463, Part I, § 8], requiring the Board to report to the attorney-general upon violations of law by corporations, it is the duty of the Board to report, not upon violations of every law, or, in par- ticular, of the Lord's day laws, by a cor- poration, but upon violations of railroad laws only. Anon. V. B. & A. R. Co., 1886, 152. See also 1885, 46. 128. No consent of the Board is needed to justify the running of a train which is a work of necessity under P. S. 98, § 3 [repealed by 1887, 391, § 4]. Housatonio R. Co., pet'r, 1884, 32. 129. The Board has power, under P. S. 98, § 15 [R. L. 98, § 14], only to permit the running of a Sunday train, not to forbid it. Anon. D. N. Haven & Northampton R. Co., 1884, 37. Pilgrim Conference u. O. C. R. Co., 1884, 78. Anon. I!. B. & A. R. Co., 18SB, 152. See also 1885, 46. 130. Whether the running of a Sunday train in any particular instance is illegal or not can only be settled by prosecuting the corporation, or one or more of the train hands, under the appropriate section of P. S. 98 [R. L. 98]. Anon. v. N. Haven & Northampton R. Co., 1884, 37. Pilgrim Conference v. O. C. R. Co., 1884, 78. Merriam, pet'r, 1884, 39. 131. In P. S. 98, § 15 [R. L. 98, § 15], the word "convenience" is not an additional requirement, but a modificatiou of the preceding requirement of "necessity." B., H. T. & Western R. Co., et al., pet'rs, 1886, 146. See also 18SS, 45. 132. To justify the Board in permitting the running of a Sunday train under P. S. 98, § 15 [R. L. 98, § 14], it is requisite to show, not the necessity required by P. S. 98, § 3 [now repealed; see above], and the decisions under it, but only mixed considerations of necessity and conven- ience. Housatonio E. Co., pet'r, 1884, 32. 1884, 39. ACCOMMODATIONS — Con. 133. Under P. S. 98, § 15 [R. L. 98, § 14], the burden is upon those who desire the running of ■< train to show that there is such a demand for the train as will war- rant the Board in authorizing it. lb. 134. Upon a petition under P. S. 98, § 15 [R. L. 98, § 14], the question of necessity or of high convenience calling for Sunday through trains is the only one submitted to the Board, provided the trains do not unduly interfere with the observance of the day. 1886, 45. 135. It is lawful to attend a Spiritualist meeting on Sunday, but whether » cor- poration is justified in running a train to such a meeting depends upon the par- ticular facts of each case. Anon. jj. N. Haven & Northampton R. Co., 1884, 37. 136. It is not the law that the running of trains on Sunday is in itself lawful, with- out regard to the nature of the traffic; and although a train or a car may be run in such a way or for such a purpose as to make it legal to do so, the running of a train for general purposes is unlawful, and the mere fact that some of the pas- sengers on a car are lawfully traveUing does not render the running of the car lawful. Housatonic R. Co., pet'r, 1884, 32. 137. No unwilling employee should be com- pelled to labor habitually on Sunday, nor should any employee be exposed to risk of discharge or to molestation because of his objection to such labor. Anon. V. B. & A. R. Co., 1886, 46, 152. 138. Attention may properly be called to the fact that, by chapter 391 of the Acts of 1887 [R. L. 98, § 3], the "preparation, printing and publishing of newspapers," and the "sale and delivery of newspapers," which involves their transportation, are made a lawful business on the Lord's day. Under chapter 98, section 15, of the Public Statutes [R. L. 98, § 14], as amended by the above act, the Board has duly authorized the running of the Sunday newspaper trains in question, and this has been done upon the application and request of the railroad companies. It is difficult to see in what legal aspect a Sunday train so authorized differs from a week-day train. Post Pub. Co., pet'r, 1894, 172. 16 ACCOMMODATION S . ACCOMMODATIONS — Con. 139. As a rule, the obligation of a railroad company as a common carrier to give reasonable and equal terms and facilities for transportation to all of its patrons and customers is as strong with respect to trains which are run voluntarily for tolls and revenue on Sundays as to trains run on other days of the week. 75. 140. There can be no doubt that the New York Central and Hudson River Railroad Company under its lease of the Boston and Albany railroad is as much bound to operate Sunday trains as to continue its week-day service, provided the running of such trains is approved by the Board as consistent with a proper observance of the day. Newton citizens et al. v. B. & A. R. Co., 1904, Steamboats. 141. The complainants contend that while the statutes expressly give to this Board the power to authorize the running of steamboats on Sunday, they do not give it any power to authorize the loading or unloading of freight on that day. This is unquestionably true in respect to the loading or unloading of freight which is not an incident of the running of the steamboats. The Board has never in- tentionally assumed to grant a general authority to do such work on Sundays. Complaint, 1907, 190. 142. We understand, however, that in the conduct of the business carried on by steamboat lines the delays inevitably con- nected with transportation by water create emergencies which make the moving of freight upon Sunday at times a practical necessity. This is notably the case with perishable freight and may sometimes be true of other cargo. The phrase in the order, "and in connection therewith to receive and deliver baggage and freight," in so far as it relates to freight was intended to meet such ex- ceptional conditions. It is significant as a recognition upon our part of the fact that the exercise of the authority to run the steamboat may at times create a "work of necessity." lb. 143. To eliminate hereafter any doubt as to the scope of this order, we hereby change the wording so that it will read "and in connection therewith to receive and deliver baggage and whenever neoes- ACCOMMODATIONS — Con. sary to meet an emergency incident to the running of the steamboats to load and unload freight." lb. IV. Freight. 144. Where it appeared that better pro- vision was needed for the handling of freight at a station, it was recommended that the company, if it could not afford to furnish the services of additional hands, leave at the station, constantly, freight cars into which shippers could conveniently and at their own time place their freight. Medway o. N. Y. & N. E. R. Co., 1884, 127. 145. Under P. S. 112, § 187 [R. L. Ill, § 239, now 1906, 463, Part II, § 195], a penalty can be recovered from a corpora- tion for the refusal to give a receipt for freight, and no action by the Board is needed. lb. 146. Where a railroad had established a freight station within a town, a petition by a portion of the residents that an additional one be established at a point less than a mile distant was not held to be a reasonable request and was not granted, the amount of freighting business not being in excess of existing facilities. Sharon v. B. & P. R. Co., 1872, 211. 147. Companies ought to have the right, within reasonable bounds, to designate the different doors at which goods to be carried to different points shall be de- livered. This is in the interest of a prompt and efficient service, enabling a company to properly prepare and station its cars in readiness to receive freight. The rule, however, should be given some elasticity, and not be strictly enforced in instances where some variation from it will save shippers annoyance and loss of time without appreciably inconveniencing the companies. Complaint Master Teamsters Aaso., 1905, 8. 148. Companies can fairly be asked, when unloading cars, to so separate from other freight that which belongs to the particu- lar consignee as to make it possible for him to find and take his goods without unreasonable delay or inconvenience. Teamsters ought not to be required to sort freight in the effort to pick out that which belongs to those whom they rep- resent. On the other hand, companies ought not to be required to sort freight ACCOMMODATIONS ADMINISTKATION, RAILROAD. 17 ACCOMMODATIONS — Con. arriving from different points for the same consignee and to place it ready for delivery at a particular door. Co-opera- tion on the part of employees is of the utmost importance for the saving of time and labor and is something which it is in the interest of all parties to promote. lb. 149. Notice of the arrival of freight should be given seasonably; but undue haste in giving it is unnecessary loss to some- body when, as the result, a consignee in promptly responding to it finds the com- pany unprepared to deliver the goods. Delivery checks should contain a designa- tion of door if house freight, and of track if bulk freight. In all ordinary cases re- ceipts for goods delivered should be promptly given, and not delayed to meet the convenience of the companies or their employees. /6. 150. For decision as to hours of closing freight houses in Boston, see Boston Associated Bd. of Trade, pet'r, 1904, 72. 151. The freight rates, as far as they have been disclosed, do not appear to be ex- cessive in view of all the circumstances, but the methods pursued in forwarding freight give just ground for complaint. Under the prevailing practice shipments of perishable goods and of the necessities of life have been frequently held for days at New Bedford while, owing to weather conditions, the boats were running only to and from Wood's Hole. The company ought to make arrangement for forward- ing freight through the winter season by way of such point as wiU secure the most prompt and regular delivery upon the islands. Vineyard Haven v. N. B., M. V. & N. Steam- boat Co., 1906, 77. 152. The privilege of having material de- livered by a corporation at points on the road between stations is not a facility within the scope of the ordinary duties of railroad companies and common carriers; and, in order to entitle a petitioner to such a privilege, either it must be shown that the exceptions to the general rule of delivering passengers and freight at stations only are so numerous that such delivery is to be regarded as a reasonable facility, . . . or it must be shown that the course of this corporation has been such toward like applicants that the re- ACCOMMODATIONS — Con. fusal in this case constitutes undue dis- advantage. B. & O. Telegraph Co. u. N. Y. & N. E. E. Co., 1885, 157. 153. It is no evidence of such undue dis- advantage that the corporation has granted such a privilege to other parties in return for a service which it needed; for example, to a contractor engaged in building a track, for the sake of expedition or cheapness in construction. Ih. 154. But it is no defence that a contract with other parties binds the corporation respondent to the practices complained of. lb. 155. It is contrary to public policy to pro- hibit the grinding or the storage of grain in transit unless upon the payment of an additional rate for transportation. 1881, 40. 156. Where a corporation grants to one customer the privilege of grinding in transit, upon payment of a switching charge, and a demand is made by another party for the same privilege, a, refusal by the corporation, without stating and offering the terms on which the other customer received the privilege, is a re- fusal of equal terms and facilities. Butman v. B. & A. R. Co., 1881, 198. For complaints (decided upon their facts) as to delay in transportation, see Medway v. N. Y. & N. E. R. Co., 1884, 127. Atwood s. O. C. R. Co., 1884, 158. 157. For a report on the subject of dis- crimination in favor of owners of freight oars, other than railroad corporations, see 1873, 35. 158. For a complaint relating to shortages in grain consignments delivered by a corporation, see Boston Corn Excliange v. B. & A. R. Co., 1873, 24. See also 1876, 70. See also Chadwick et al. ». N. Y., N. H. & H. R. Co., 1906, 75. Vineyard Haven v. N. B., M. V. & N, Steamboat Co., 1906, 76. See also Stations. ADMINISTRATION, RAILROAD. See 1893, 6. See also under the various headings. 18 ADVANCE PAYMENT ASSOCIATION, ARTICLES OF. ADVANCE PAYMENT. On merchandise transported, see 539; for tickets, see 538, 540, 541-544. ADVERTISING. See 936. AGREEMENT. See Contract. AID TO INJURED. 159. In investigating accidents the Board has been convinced that too much re- liance has been placed by companies either upon the general knowledge of em- ployees that immediate aid is always to be provided to save life and prevent suffering in all cases of accident, or upon instruc- tions that are too general and indefinite. It is difficult to state beforehand in detail just what action shall be taken in emer- gencies, and discretion must be left to those in charge of trains and premises, but we recommend that rules for the government of employees contain an ade- quate statement describing the imme- diate action to be taken in cases of accident and that schools for the instruction of employees in first aid to the injured be encouraged by every railroad manage- ment. 1907, 55. AIR BRAKES. Automatic. See 1895, 42; 1896, 37, 41. ALDERMEN. See Mayor and Aldermen. ALDERMEN OF BOSTON. Appeal to Board from. See 190, 191, 329. ALIGNMENT. See 669. ALTERATION OF BRIDGES. See 197, 334, 337. ALTERATION OF CROSSINGS. See Crossings, VI. ALTERATION, GRADE CROSSING. See Crossings, VI, VII. ALTERATION OF TRACKS (STREET RAILWAY). See 675, 686, 687, 689, 691, 695, 696, 750, 751, 752. ALTITUDE. See 669. ANNOYANCE. From railroad operation. See 361. ANTI-STOCK WATERING. See 1901, 93. APPEAL. See 190, 239, 398, 753, 760. APPORTIONMENT . Of expenses and receipts. See 223. APPROACHES. To stations. See 803, 806-811. APPROVAL OF LOCATIONS. See Locations, V. ARBITRARY. For the practice of "absorbing the arbi- trary," see 520. For arbitrary mileage tables, see 545, 546. ARBITRARY RATES. See Fares and Freights, II. ASSOCIATION, ARTICLES OF. Street Railways. 160. There must be at least fifteen persons to associate for the formation of a street railway company. It is conceded that these fifteen or more persons must sub- scribe the articles of association in due form prior to the publication of the arti- cles, and that their names must appear in the published copy [see R. L. 112, § 6, now 1906, 463, Part III, § 6]. These original subscribers are the persons who, upon complying with the provisions of the general law, "shall, with their asso- ciates and successors, be and remain a corporation." Fall River St. Ry. Co., pet'rs, 1896, 179. 161. The petition of the directors to the municipal board for a location must ask "for a location of the tracks of the rail- way" described in the articles. The subscribers to the articles are not legally bound to contribute to the construction of a railway which does not come within the description contained in the articles to which they subscribe. 76. 162. In the original articles of association, and of course In the publication, the name of the county is omitted. On this appli- cation for a street railway charter the Board holds that this requirement is only directory or at least that it may be waived by the municipal authorities who have control of the granting of the route and that this technical omission is not a fatal defect. What would be the law in case of an application for a steam railroad charter, which gives a right to take land without the owner's consent, it is not necessary to decide. Salem and Danvers St. Ry. Co., petition, 1884. Records, Vol. 4, p. 182. 163. It is no objection to granting a charter certificate that the names of the sub- scribers to the articles of association are not published and posted; nor is such publication and posting required by P. S. 113, § 7 [1906, 463, Part III, § 6]. Salisbury Beach R. Assoc, pet'rs, 1885, 168. 164. The agreement of association published by the Springfield Suburban Street Rail- way Company refers to the "provisions ASSOCIATION, ARTICLES OF — BAGGAGE. 19 ASSOCIATION, ARTICLES OF — Con. of chapter 113 of the Public Statutes and all general laws in addition thereto or amendment thereof" aa the body of laws under which the company is to be or- ganized. The Public Statutes had then been repealed and the Revised Laws were in force in their stead. We are asked to rule that this mistake in naming the statutes has rendered all subsequent pro- ceedings void. We decline to make this ruling. It was not necessary that the agreement of association should name the statutes under which the company was to be organized. The provisions of law to which reference was made were actually in force though under a different title and there is no proof or likelihood that the misnomer misled anybody who had any interest in the matter. Springfield Suburban St. Ey. Co., pet'r, 1904, 112. ASSIGNEE. See 25. 165. Statute 1886, 142 [R. L. Ill, § 74, now 1906, 463, Part II, § 56], was de- signed to accomplish two purposes; 1. To enable the purchasers of a railroad sold under foreclosure of a valid mortgage to operate the same without any dealings with the insolvent corporation; 2. To subject the assignee of a railroad sold under foreclosure to the same supervision and control that are exercised by the State over other railroad franchises and property. 1887, 27. ASSOCIATION, AGREEMENT OF. See Articles of Association; also 647, 683. ATTORNEY- GENERAL. See 127, 188, 189, 211. AUTHORITY. See 898. AUTOMATIC BRAKES. See Air Brakes. AUTOMATIC COUPLERS. See Couplers. AUTOMATIC SAFEGUARDS. See 1, 12. AVERAGES. See 51, 487, 520. AVOIDING GRADE CROSSINGS. See 315. BACKING LOCOMOTIVES. See 761. BAD FAITH. See 279, 576. BAGGAGE. 166. An accepted definition of baggage is "articles of necessity or convenience for personal use and such as it is usual for persons travelling to take with them."' 167. Upon a complaint against a corporation in relation to facilities for the transporta^ tion of parcels, it is necessary, in order to justify the Board in making a formal recommendation under P. S. 112, § 16 [R. L. Ill, § 15, now 1906, 463, Part I, § 9], to show not merely that the course complained of is unwise, but that it is so unreasonable that the Board will be ready, if necessary, to follow up the reconunenda- tion by calling on ihe General Court for legislation; and this will be the case especially where the interests of the par- ties can better be secured by a, discreet and kindly management of the road than by rules imposed by an outside power and by strict law. Ellison J. B. & A. R. Co., 1884, 89. 168. The fact that persons have been solic- ited and induced to fix their homes upon a line of railroad with a view to the con- venience of a long-established practice, such as the free carriage of parcels, gives no legal right unless a binding contract has been entered into, but does afford strong reasons for equitable consideration. lb. 169. A corporation, in dealing with baggage, acts as common carrier, and not as ware- houseman, and the free storage of baggage, as incidental to the duty of transporting it, need be given for a reasonable time only. Trafton s. B. & M. Haiboad, 1886, 127. See also Howe v. B. & A. R. Co., 1884, 152. 170. An allowance of twenty-four hours after the midnight following the receipt of the baggage is a reasonable time. Trafton B. B. & M. Railroad, 1886, 127. 171. A regulation forbidding the receipt of any piece of baggage weighing over two hundred and fifty pounds is a rea- sonable one. lb. 172. Rates given to theatrical companies stand on a different basis from rates to commercial travellers, and cannot properly be considered for the purpose of showing the unreasonableness of the latter. lb. See 199 Mass. 586 for a ruling tkat a peddler's pack is not personal baggage. 20 BAGGAGE. BAGGAGE — Con. 173. One who has secured, by a stop-over ticket, the privilege of stopping off at several stations without paying local fares, ia not thereby entitled, as a matter of right, to a like privilege for his extra baggage. lb. 174. At common law it is the duty of a common carrier to transport for each passenger a reasonable quantity of per- sonal baggage, provided it is in suitable form to be checked and handled. Carter v. B. & A. R. Co., 1884, 93. 175. Under P. S. 112, § 182 [R. L. Ill, § 230, now 1906, 463, Part II, § 186], pro- viding that checks shall be given for bag- gage, and under the common law rule relating to the transportation of personal baggage, a package of clothing, not in- tended for wear on the journey for which the ticket has been bought, but intended to be cleaned or repaired before being worn, is personal baggage, and a check must be given for it. 75. 176. Under the common law rule relating to the transportation of personal baggage are included such articles as are of neces- sity or convenience for personal use, and such ordinary personal effects as it ia usual for persons travelling to take with them. Cook V. B. & A. R. Co., 1884, 94. 177. It is said, in the opinion delivered by Mr. Justice Fletcher in the case of Jordan V. Fall River R.R. Co., 5 Cush. 72, that "it is impracticable to prescribe an exact rule or to define with precision what may properly be included in the term baggage as used in connection with travelling in public conveyances." It has been de- cided in one case in the United States that a bicycle is personal baggage within the legal meaning of that term. On the other hand, it has been decided in an English court that a bicycle is not personal luggage.* 1900, 47. 178. The general question, whether a check should be given for a package containing clothing, does not depend upon the use which the particular traveller demanding the check intends to make of his clothing. BAGGAGE — Con. 179. A rule of a corporation forbidding the checking of any parcel contained in paper, however secure or convenient for handling, or making it necessary that personal bag- gage should be enclosed in a trunk, valise or like receptacle, is unreasonable and should not be enforced; whether an arti- cle is to be regarded as baggage and is entitled to be checked is a question of fact in each case. lb. 180. An allegation that a corporation fails to furnish checks for the baggage of pas- sengers concerns a matter of statute obli- gation, and calls for no recommendation on the part of the Board. Medford d. B. & M. Railroad, 1874, 114. 181. In the case of a refusal by a corporation to check an article entitled to be checked as baggage, the legal penalty of $10 is not a substantial and practical remedy, and the Board will intervene to save all parties from unnecessary difficulty and will make the proper recommendation. Cook I. B. & A. R. Co., 1884, 94. 182. The Board refused to recommend that passengers holding separate mileage tick- ets on two connecting roads be granted the privilege of checking baggage through to points on the connecting line. Hayward v. B. & A. R. Co., 1888, 152. Charge for all Baggage. 183. The delay and trouble caused at sta- tions, particularly where there is much travel, in fixing the amount of charge by weight or otherwise and arranging for payment and receipt, as well as the tend- ency to load the seats and available space with bundles retained by the passenger in his personal care from economic or other reasons, is considerable, and the cause of much provocation. The last-named evil would be felt with peculiar force in cars constructed as our passenger cars are, which are provided with limited space for small parcels and with narrow passage- ways through which all passengers must pass. It may safely be said that in allow- ing to passengers free transportation for a reasonable amount of personal baggage and in the method of handling baggage, the railroads of this country are in advance of all others. 1900, 49. See also 75, 374, 798, 817. See also Stations. 1 1906, 463, Part II, § 185 provides that one bicycle may be accepted as baggage for each revenue-paying passenger. BAGGAGE EXPRESS BOARD OP RAILEOAD COMMISSIONERS. 21 BAGGAGE EXPRESS. See 390, 391. BANKRUPTCY. See 21, 22, 25, 26. BARGES. As substitute for train service, see 74, 75. Sec aiso Omnibus. BELLS. As crossing safeguard. See Crossings V. BENEFICIAL COMPETITION. See 522. BICYCLES. Transportation on passenger trains. [See R. L. Ill, § 229, now 1906, 463, Part II, § 185.] See 1897, 11; 1899,117; 1900, 46 (special re- port). See also 177. BLOCK SYSTEM. See 12, 883-885; 1872, 139, 269, 276; 1879, 405; 1880, 30; 1893, 52; 1906, 64, 65; 1908, 60. See alsn Signals. BLOCKING HIGHWAYS. By trains. See 338, 341. BOARD OF RAILROAD COMMISSION- ERS. 184a. For jurisdiction and powers, see also the various titles.^ 1846. The powers of the Board in relation to petitions and applications are of two classes, either to make an order or award which may be enforced by the courts, or to make only a recommendation. 1885, 50. 185. In its first annual report the Board called the attention of the legislature to the singular limitation of its powers under the act providing for its appointment, chapter 408 of 1869, which apparently pro- vided for the supervision of railroads — a notification to be sent to the corporation when in the judgment of the Board such corporation failed in any respect to comply with the laws of the Commonwealth or the terms of its charter; or information from the commissioners to the corporation of the improvements and changes which they adjudged to be proper, a report of the proceedings to be included in the annual report of the commissioners to the legis- lature. The original members of the Board felt embarrassed in the performance of their duties when they found that in case of certain infractions of law over BOARD OF RAILROAD COMMISSION- ERS — Con. a compliance with which it was their especial duty to watch they were without means of enforcing their own decisions. The first annual report cites many illustra- tions of these limitations. Forty years of service have proved that while on many occasions an exercise of the recommenda- tory powers of the Board is quite sufficient to secure needed changes in facilities and operation of railroads, there are certain oases, such as the equipment of railroads and railways with safety devices, where the power should be and has been given to the Board to directly order the installa- tion of such devices or other changes which look to the safety of the travelling public or of employees. 1910, 61. 186. The violation of a distinct statute duty cannot be made the subject of a recom- mendation by the Board ; the proper rem- edy is to enforce the statutory penalty prescribed. Sharon d. B. & P. R. Co., 1872, 211. 187. Under 1869, 408, §§ 4 [repealed 1874, 372, § 182] and 5 [special], the Board can take action only in the case of existing causes of complaint; where a cause of com- plaint has ceased to exist the remedy for damages sustained is in a court of law alone. Thayer et al., Murray et al. v. B., Hartf. & Erie R. Co., 1874, 111. 188. If it is shown to the Board that a cor- poration is violating a law, and if the cor- poration continues to violate it, the case will be sent by the Board to the attorney- general for prosecution.^ Northampton v. Conn. River R. Co. et al., 1882, 119. 189. It is neither the duty nor the right of the Board, upon a complaint against a cor- poration, if in its opinion the corporation has not violated a law, to send the ques- tion to the attorney-general for action against the corporation. Welby 1). Middlesex R. Co., 1883, 124. 190. The provision of 1874, 372, § 5 [R. L. Ill, § 2, now 1906, 463, Part II, § 2], giv- 1 Paine v. Newton Street Railway, 192 Mass. 639. In this case the coxut ruled that the provision of R. L. 112, § 100, now 1906, 463, Part III, § 157, relates only to rulings of law, and does not apply to findings and decisions upon questions of fact, and in such a proceeding the court can hear no evidence except the proof of the evidence that was before the Board when the rulings complained of were made. 2 Attorney-general b. N. Y., N. H. & H. R.R., 197 Mass. 194. RuUng that this section (1906, 463, Part I, § 8] does not limit the authority of the Attorney-general to bring independently proper proceedings to restrain un- authorized or illegal acts of the corporation where the interests of the public seem to him to require that he do so . 22 BOARD OF RAILROAD COMMISSIONERS. BOARD OF RAILROAD COMMISSION- ERS — Con. ing to the Board jurisdiction of questions coming "by reference or appeal" from the aldermen of Boston, gives it jurisdiction of an original request or petition made to the Board by the aldermen. Aldermen of Boston, pet'ra, 1882, 109. 191. The words "location, construction, maintenance and operation" in the first clause of Stat. 1874, 372, § 5 [1906, 463, Part II, § 2], do not limit the jurisdiction given to the Board in the final clause of the said section. 76. 192. The Board has no power to issue an in- junction in any case. Anon. V, N. Haven & Northampton R, Co., 1884, 37. 193. Action under P. S. 112, § 16 [R. L. Ill, § 15, 1906, 463, Part I, § 9], is not necessarily based on petition, and the Board may, on its own motion, consider what changes are reasonable and expedient in order to promote the security, conven- ience and accommodation of the public. Springfield v. B. & A. B. Co., 1888, 136. 194. The Board has no power to recom- mend the conduct of a lawsuit; and when it appears, upon a petition relating to the mode of operating a road, that an injunc- tion has been issued restraining the opera- tion of the road, the Board will not rec- ommend the corporation to begin legal proceedings asking for a modification in favor of the petitioners of the terms of the injunction; in such a case the remedy of the petitioners, if any, is in legislation. Hull V. Nantasket Beach R. Co., 1884, 143. 195. Nor in such a case will the Board recommend that the road be operated in violation of the injunction. lb. 196. The Board has power, in an investiga^ tion, properly requested, into the affairs of a horse railroad [street railway] com- pany, to ascertain and to state in its report, not only the facts of the condition of the company, as that the capital is impaired to the extent of $5,000, but also the causes that have brought about that condition, as that the $5,000 was lost through a con- spiracy of the directors to defraud the stockholders.' Newburyport v. Newbmyport &-Amesbury Horse R. Co., 1886, 159. BOARD OP RAILROAD COMMISSION- ERS — Con. 197. The mere fact that other tribunals have power to take final action in any matter, as, for example, in regard to altera^ tions in bridges, does not, of itself, deprive the Board of power to recommend im- provement. Worcester v. B. & A. R. Co. el al., 1887, 121. 198. The failure of the selectmen of a town to indorse a petition presented under P. S. 112, § 17 [R. L. Ill, § 16, now 1906, 463, Part I, § 10], in case of non-compliance, does not deprive the Board of jurisdiction of the petition. West Springfield o. B. & A. R. Co., 1888, 149. 199. Where the Board is asked to recom- mend action to a corporation incorporated in Massachusetts and having its terminus and principal place of business in Massa- chusetts, but lying partly in New Hamp- shire, the question whether a recommenda- tion of the Board can constitutionally be enforced against the corporation need not be considered until such recommendation has been made and has been disregarded. Merrill u. B. & L. R. Corp., 1886, 114. 200. Neither by 1882, 173, § 4 [special], nor by P. S. 113, § 49 [R. L. 112, § 79, repealed by 1906, 463, Part III, § 158 — but see Part III, § 36], relating to appeals from town authorities to the Board, is it re- quired that the decision of the Board shall be filed with the supreme judicial court. Charles River Street R. Co. v. Boston, 1883, 137. 201. Though the board of railroad commis- sioners has a general supervision over street railways it has been a policy of the legislature to leave with boards of alder- men and with selectmen the control over the manner in which street railway oars shall be operated through public streets. In consequence of the development of street railways from a local character, in which they served single communities, into interurban systems which serve many communities, statutes have been passed requiring that the action of town and city boards be subject to supervision by the state board in protection of public in- terests that extend beyond local bound- aries. Accordingly the law which gave to boards of aldermen and to selectmen exclusive control over the number and routes of street cars and the manner and extent to which street car tracks should be 1 1902, 370 (now 1906, 463, Part III, § 103) provides for such an increase of capital, or issue of bonds, based upon amounts properly expended or required for additions to property, etc., as the Board shall approve. BOARD OF RAILROAD COMMISSIONERS BRIDGES. 23 BOARD OF RAILROAD COMMISSION- ERS — Con. used, has been changed to meet the new conditions. Original authority is still pre- served in the local boards, but its exercise has been made subject to the approval of the board of railroad commissioners. Report to Legislature, 1908, 155. For discussions of the powers of the Board, see 1870, 5, 8, 105; 1874, 36; 1890, 33; 1891, 38, 42; 1893, 15; 1898, 119, 124; 1899, 102; 1900, 83; 1901, 47, 93; 1902, 36, 37; 1904, 40; 1905, Ixix. For discussion of its powers under a special act, empowering it to fix a rate, see 402. For a review of the Board's work for forty years, see 1910, 50. BONDS. Street railway. See 1894, 116. See also Stock and Bonds. BOOKKEEPING. Errors in. See Returns. BOXBOARDS. Freight rates upon. See 409. BRAKEMEN. On freight cars. See Employees. Rear of trains. See 1883, 151. BRAKES. Freight cars. See 1892, 157. See also 368, 369, 922. Street railway. See Air Brakes. For discussion of. See 1891, 238; 1892, 29; 1893, 45. See also 7. BRANCHES. See 613-616, 622, 664, 665. Freight rates on. See 478. BRIDGE GUARDS. See 1898, 212.1 BRIDGES. 202. The Board will not authorize the con- struction of a highway bridge at a height of less than eighteen feet above a railroad track, except in cases where the enforce*- ment of the rule would occasion a plain and manifest public hardship. Sel. of Grafton, pet'rs, 1874, 110. BRIDGES — Con. 203. A petition for permission to construct a bridge for a town way over a railroad at a height less than eighteen feet above the track will not be granted where it does not appear that the bridge in question is to be located near or among a series of low bridges already existing as permanent structures. Sel. of Weatborough, pet'rs, 1886, 105. City of Boston, pet'r, 1885, 110. See also Boston, pet'r, 190S, 39. 204. The proposed change in this bridge in- volves a material addition to an existing structure over the four track main line of the railroad. Unless peculiar conditions make it impracticable to secure it, the Board in such cases must require a clear- ance of at least sixteen feet between the tracks of the railroad and the bridge, as a measure of protection for employees. Wellesley selectmen, pet'rs, 1906, 106. 205. A corporation is not only bound origi- nally to construct bridges which shall be safe for travellers passing under them, but if by reason of a great increase of travel or otherwise the bridges as constructed become a source of danger, it is the duty of the corporation so to alter the bridges as to remove the cause of danger. Worcester c. B. & A. B,. Co. et als., 1887, 121. 206. In such a case no such equitable reason exists for contribution to the expense by the county and towns interested as would make it proper to proceed in the matter under the provision of P. S. 112, § 129 [R. L. Ill, § 134; now 1906, 463, Part I, § 23 (amended by 1908, 542, and 1909, 47)], before the county commissioners and not before the Board. lb. 207a. The selectmen requested that the bridge be extended on the south side of the street the four or five feet necessary to bring it in line with the highway as 1 Under K. L. Ill, § 184 (now 1906, 463, Part II, § 143) the Board prescribes the following regulations: — 1. The standard forms of pendent or "whip-cord" and of horizontal-bar bridge-guards or "tell-tales" now in common use on the leading railroads of this State, are approved by the Board. 2. On main tracks and on main-line side tracks, the guard should be placed not less than 100 nor more than 200 feet from the bridge or other overhead structure. 3. In yards and on switching tracks the guards should be placed not leas than 50 nor more than 100 feet from the bridge or other overhead structure. 4. The distance is to be measured in all cases from a point over the centre of the protected track in the near side of the bridge or structure, in the direction of approach by trains; and a guard is to be maintained on one or on both sides of the bridge or structure according as trains are run on the track in one or in both directions. 5. Where two bridges or structures are not more than 200 feet apart in the clear, only one guard between them is required, the same to be placed midway between the two. 6. The guard should be erected and maintained so that the same, or the lowest part thereof, will hang or swing about three inches lower than the lowest part of the bridge or structine which it is designed to protect. 24 BRIDGES — CARKIERS. BRIDGES — Con. widened. . . . The bridge was completed, notwithstanding the protest, in accordance with the original plan of the company and of the same width as the old bridge. . . . The action of the railroad company cannot be justified. As a public service corpora- tion it -s^as bound to treat reasonable demands made upon it in behalf of the public interests with fuU courtesy and consideration. . . . Nor is there any ex- cuse for this conduct from the standpoint of sound economy or shrewd business management. ... It is simply a question of ii trifling outlay at a slight inconven- ience for the accommodation of one of the communities with which it is constantly dealing and from which it is deriving a portion of its revenue. If there can be any ground upon which it can be reason- ably argued that it is profitable for the company to secure the ill will of the com- munity in this case we have overlooked it. Appeal of N. Y., N. H. & H. R. Co., North Easton bridge, 1901, 104. 207b. In this case the Board had in mind that other considerations were involved besides the comfort and convenience of private land owners and residents in the vicinity of the bridge. The proximity of the Massachusetts General Hospital, which performs so large a function in the care of the sick and the infirm, made it perti- nent to consider that the discomfort re- sulting from excessive noise is apt to become acute and may even prove dan- gerous to those in a precarious state of health. Moreover, large public expendi- tures have been made for the sole pur- pose of fitting the Charles River basin, its shores and the bridge, for public enjoy- ment and recreation. We believe that these purposes should not be defeated or impaired by reason of excessive noise be- yond what is reasonably necessary for the BRIDGES — Con. practicable operation of elevated trains upon this bridge. Boston Elevated Ry. Co., petr., 1912, 242. See 1892, 13; 1894, 51; 1898, 15; 1900, 83 (street railway bridges') ; 1901,80; 1903, 69. For reports of the joint board on relocating and widening the Fairhaven bridge, see 1900, 234; 1901, 290. For decision as to operation of draw in Blade's Ferry bridge, Fall River (under 1900, 206), see 1901, 289. For report of the joint commission on the bridge over the Taunton river at Fall River, see 1905, 127. For terms of street railway construction on a bridge located in three towns, see Old Colony Co. pet'r, 1911, 228. See also 662. BUILDING, RAILROAD. Progress in. See 1893, 3. BURDEN, DUTY OR OBLIGATION. See 581. BURDEN OF PROOF. See 262. CAPITALIZATION. Basis of. See Stocks and Bonds. CALF. Conventional weight of. See 443. CAPITAL STOCK. See Stock; Returns. CARGOES. See 440, 441, 442. CARGO RATES. See 441. CAR LOADS. See 512, 514. CAR WHEELS. See 1888, 18. CARRIERS. See Connecting Roads; Express System; Fares and Freights and under various headings. See also 5666. 1 Bridges constructed and used exclusively for street railway purposes should have floor systems similar to those used on steam railroad bridges. While there is some difference in practice with reference to the details of such floors the Board (under R. L. Ill, § 169, now 1906, 463, Part I, § 58) recommends the following construction: — 1 . Ties should be of hard pine not less than 5 inches by 7 inches and not less than 8 feet long. The Board suggests a length of 9 feet. Ties should be spaced not over 8 inches in the clear. The Board suggests a spacing of 6 inches in the clear. Ties should be securely fastened to the stringers by spikes or bolts. 2. Along the ends of the ties should run on each side a wooden guard timber not less than 6 inches by 6 inches, notched 1 inch over the ties and bolted to every third or fourth tie. The office of this guard timber is not to pre- vent a derailed wheel from running off the bridge, but simply to keep the ties in place. With ties 9 feet long this guard timber will be 15 inches to 18 inches in the clear outside of the track rails. 3. In order to prevent a derailed truck from running far from the track, even if it should be derailed before reach- ing the bridge, inside guard rails should be provided. These rails should be of the same height as the tracks rails and should extend across the entire bridge and for a distance of some 50 feet beyond the ends, coming to a point in the centre of the track, the point being protected by a casting or frog point. If there is a sharp curve on the ap- proach the guard rails should be extended around the curve. These rails should not be less than 8 inches in the clear inside of the track rails and should be securely spiked down to every tie. Such inside guard rails will in most cases guide a derailed truck safely across the bridge, a fact which has been repeatedly demonstrated in connection with steam railroads. CARS — OHARTEE CERTIFICATE . 25 CARS. See Trains and Cars. For oar service on street railways, see 79-96. For freight cars, see 144^158. For ob- struction of highways by street cars, see 304. See also Trains and Cars. CASH FARES. Colleotion for connecting roads not reason- able. See 541. CATTLE. Safeguards against. See Fencing. CENTRES Town and city. Street railway fares be- tween. See 566, 571. CERTIFICATE. See 208-219, 619, 647. CHARGE. For baggage, see Baggage. CHARITABLE INSTITUTIONS. See 45. CHARTER. See 23, 56, 603, 894, 896. For charter restrictions on street railway fares, see 559, 581-583. CHARTER CERTIFICATE. See Articles of Association ; Location, III. {Requisites of Petition for Location) . 208. Where by a private act certain persons are made a corporation and become so by accepting the act, the requirements of P. S. 112, § 44 [R. L. Ill, § 46, now 1906, 463, Part II, § 24], preliminary to the es- tablishment of a corporation, are super- seded and need not be complied with. Cape Cod Ship Canal Corporators, 1884, 83. 209. It is no objection to an application for a charter certificate, under P. S. 112, § 44 [1906, 463, Part II, § 24], that since the assent of the various boards of selectmen to the route was given, the terminus within the city of Boston has been changed from one point to another. N. Y. & B. Inland R. Assoc, pet'rs, 1883, 121. 210. Whether the change of a terminus from one town to another would be such an abandonment of the old project that new proceedings would be necessary, — queers, lb. 211. Where the proceedings of the officers in organizing a corporation and in pre- paring for construction are found by the Board to have been colorable, fraudulent and evasive of the law, in that stock has been improperly issued and in that the proper subscriptions and payments have not been made, the Board will not only. CHARTER CERTIFICATE — Con. under 1874, 372, § 8 [R. L. Ill, § 14, now 1906, 463, Part I, § 8], present the facts to the attorney-general for action, but will also make every effort to secure the crim- inal prosecution of such officers or mem- bers of the corporation as have violated the penal law, and will in addition do all in its power, by withholding consent to fur- ther proceedings, or otherwise, to assist and to protect innocent parties whose rights are concerned. Re B., Wintlirop & Pt. Shirley R. Co., 1877, 42, 129. 212. The Board has power, under 1874, 372, § 29 [R. L. Ill, § 46, now 1906, 463, Part II, § 24],' to institute inquiries into the good faith of the subscriptions required by § 28 [R. L. Ill, § 45, now 1906, 463, Part II, § 23], of that act, and also into the responsibility of the subscribers; and the certfficate of the directors, clerk and treasurer is not conclusive on these points. B. & Mystic VaUey E. Co., pet'r, 1879, 363, 370. 213. Where the Board is not able to satisfy itself as to the good faith of the subscrip- tions required by 1874, 372, § 28 [1906, 463, Part II, § 23], and the responsibility of the subscribers, it will not order the issue of the preliminary certificate pro- vided for in § 29 [R. L. Ill, § 46, now 1906, 463, Part II, § 24]. 76. 214. Where an attempt is made, by means of irresponsible or fictitious subscriptions, to evade the provision of 1874, 372, § 28 [1906, 463, Part II, § 23], requiring good faith and responsibility in subscriptions, the Board will not allow the list of sub- scribers to be withdrawn and amended, but will require that the proceedings of organization be commenced entirely de novo. lb. See Re B., Winthiop & Pt. Shirley R. Co., 1877, 42, 129. 215. When the Board has refused to con- sider a subscriber to capital stock as re- sponsible for the full amount of his sub- scription, the associates have a right to regard his subscription as entirely void and may of their own motion set it aside and proceed to obtain other subscribers for the amount covered by the void sub- scription; and the procuring of such fuU additional subscription is sufficient evi- dence that the subscription of the irre- 1 See Kilty ». R.R. Corns., 184 Mass. 310. 26 CHARTER CERTITICATE CONNECTING ROADS. CHARTER CERTIFICATE — Con. sponsible party has been cancelled and set aside by the associates. N. Y. & B. Inland R. Assoc, pet'rs, 1884, 172. 216. It is sufficient under P. S. 112, § 43 [R. L. Ill, § 45, now 1906, 463, Part II, § 23], if the ten per cent, of each share required to be paid in is paid by one person, provided that the whole sum paid is so dis- tributed that a payment of ten per cent, is credited on each share ; nor is such a mode of payment evidence of lack of good faith on the part of the subscribers. lb. 217. The certificate of the treasurer, direc- tors and clerk is conclusive as to the mode of entering upon th'e books of the company the payment of the ten per cent, of the amount subscribed. Ih. 218. Under P. S. 112, § 43 [1906, 463, Part II, § 23], relating to the subscription of capital stock by rcjsponsible parties, a for- eign construction company, with a capital of $36,000, all of which has been expended, is not "responsible" for a subscription of $500,000. N. Y. & B. Inland E. Assoc, pet'rs, 1883, 121. 219a. The definition of "'responsibility" in its common use is "capable of discharging an obligation." lb. 2196. For recent opinions rendered in con- nection with the issue of charter certi- ficates, see Haverhill & Boxford St. Ry. Co., pet'r, 1906. Maplewood & Danvera St. Ry. Co., pet'r, 1906, 71.1 For extension of charters, see Corporate Powers. CHEAP MORNING AND EVENING TRAINS. See 454, 467-469, 475, 476. CHECK. iSee Baggage. CITATION. ^ Error in. See Articles of Association, COAL. Transportation of. See 416, 423, 446, 516, 521, 522, 530, 534. See aUo Smoke. COLLISIONS. Avoiding. See 2, 10, 12, 13, 14, 904. COLOR-BLINDNESS. 220. The omission of the words "and paid" in P. S. 112, § 179 [R. L. Ill, § 221, now 1906, 463; Part II, § 179], in adopting 1881, 194, relating to the examination of railroad employees for color-blindness "by some competent person employed and paid by the railroad company," does not have the effect of taking from the corporations and of imposing upon the employees the duty of paying for examinations. 1883, 31. COLT. Conventional weight of. See 443. COMMERCIAL TRAVELERS. See 172. COMMON CARRIER. See 19, 152, 500, 521-523, 770. See also Carrier. COMMONWEALTH. See 344, 351, 356, 384, 469, 799. COMMUNITY INTEREST IN RAIL- ROADS. See 410-412, 417. COMMUTATION CHECKS. See 554, 582. COMMUTATION TICKETS. See 509, 511, 543, 544, 554. COMPANY. Association for formation of. See 208-219, 675, 683, 689, 690. COMPARISON. Of rates. See 477-489. COMPENSATION. See 223, 226. COMPETING COMPANIES. Standing before Board. See 686-697. COMPETITION. See 20, 388, 418, 428, 440, 483, 485, 486, 487, 493, 497, 522, 525, 531, 548, 638, 686, 689, 691, 704, 706, 710, 711, 715, 758. Between steam and street roads. See 548. CONDITIONS. For the legality of conditional grants of locations by towns, see 560, 561, 562, 570, 572, 573, 576, 577, 578. CONDITIONS PRECEDENT. See 754. CONDUCTORS. Of electric cars. See 10, 11, 13, 881, 902, 903. CONNECTING LOCATIONS. Street railway. See 746-748. CONNECTING LINK. See 728. CONNECTING ROADS. See Franchise; Accommodations, I.; Fares and Freights, I.; Location, IV., V.; Street Railway, III. 1 See Clinton o. Worcester Cons. St. Ry., 199 Mass. 279, for ruling that a corporation organized since 1864 [1864, 229] which owns and operates a street railway in this commonwealth must have been organized under the laws of the commonwealth, and that its organization is not under a special charter. CONNECTING ROADS — CONSOLIDATIONS, RAILROAD. 27 CONNECTING ROADS — Con. 221. The rights of a railroad corporation, organized under a general law, to enter upon and use the tracks of another corpora- tion are the same as if the franchise had been specially granted by the Legislature. Metrop. E. Co. t). S. B. R. Co., 1883, 116. 222. For decision as to collection of tickets issued by connecting roads, see Clapp ti. B. & A. R. Co., 1888, 164. 223. In deciding upon an application under 1874, 372, §§ 165-167 [R. L. Ill, §§ 272- 274, now 1906, 463, Part II, §§ 205-207], for an apportionment of expenses and re- ceipts between two connecting roads authorized to enter upon and use each other's tracks, the apportionment will not be made on the theory that a given share of the joint traffic is furnished by and therefore belongs to each road, but on the basis of a fair and reasonable apportion- ment, all the circumstances being con- sidered, of the expenses and receipts of the joint business, and the division will usually be made pro rata according to the mileage services performed by each road in the joint traffic. Nashua & Lowell K. Co. v. B. & L. R. Corp., 1879, 407. 224. For the applicability of 1874, 372, §§ 165-168 [1906, 463, Part 11, §§ 205-208], to a road owned by the Commonwealth, see State Road. 225. For a case in which, under 1846, 185, § 5 [R. L. Ill, § 3, now 1906, 463, Part II, § 3], and P. S. 112, § 3 [76.], the right to enter under P. S. 112, §§ 216-218 [1906, 463, Part II, §§ 205-208], is claimed to be not reciprocal, see Hanover Branch R. Co. v. O. C. R. Co., 1884, 226. For a petition (decided on its facts) to determine the compensation to be paid for the use of station accommodations and other facilities, see Fitchburg R. Co. v. B. & A. R. Co., 1883, 136. Under B. L. Ill, § S4^ {1906, 463, Part II, § 198). 227. By G. S. 63, § 114 [1906, 463, Part II, § 198], it is provided that every railroad shall promptly forward merchandise con- signed, ordered or directed to be sent over another road connecting therewith. Un- der this provision, if one of two connecting roads makes use of the tracks and yard of a third road and of the services of its em- ployees, for reasons of convenience and by CONNECTING ROADS — Con. permission of the third road, for the inter- change of freight with the other coimecting road, the latter road is not subject to any claim for compensation to the third road for the service rendered by it, inasmuch as the first connecting road was obliged by the statute to deliver to the second road all merchandise consigned to the latter, and the service rendered by the third road was therefore rendered as agent and servant of the first road; and the claim of the former for conipensation, if any, is upon the first road. Fitchburg R. Co. 1871, 111. V. B., Clinton & F. R. Co., Street Railway. 228. Under the permissive right a street railway company exclusively serving a community, especially one of considerable size, is enabled to make its own terms or to refuse to make any terms with a con- necting street railway company which desires to route through cars into the thickly populated portion of the territory served by the terminal carrier. The con- necting carrier, in most places an inter- urban street railway company, is thus left at the mercy of the terminal carrier. Some public supervision of this situation is necessary. Report of 1911, 59. 229. We do not believe, however, in view of the different sizes and weight of cars, different weight of rails and differences of power equipment, that one street railway company should be required to receive and convey over its tracks cars of another street railway company except upon ap- proval of the public authorities, for it is doubtless true that in some instances the requirements of safety would preclude such arrangement. lb. CONSIGNEE. See 148, 149, 539. CONSISTENT. With public interests. See 344, 346, 356, 358, 360, 676, 680, 690, 699, 704, 709, 711, 712, 713, 714, 715, 717, 718, 726, 728, 731, 732, 734, 745, 748, 753, 759, 866, 887, 891. CONSOLIDATIONS, RAILROAD. See 1893, 4; 1894, 22. 230. The lack of uniformity in rates upon the different divisions of this system is in large measure due to the different policies pursued in the business management of the different companies before consolidation. Rates of fare were made in granting con- 28 CONSOLIDATIONS, RAILROAD — CONSOLIDATIONS, STREET RAILWAY. CONSOLIDATIONS, RAILROAD — Con. cessions to certain communities under a policy thought to be adapted to the pe- culiar circumstances of the particular case, and that had no reference to any general standard of fares. One of the benefits to be received from consolidation of inde- pendent companies is progress towards the removal of irregularities and discrimi- nations which have resulted as a natural if not necessary consequence of separate management. MoCormiok et al. v. N. Y., N. H. & H. R. Co., 1902, 82. And railway, see below. See also 511. CONSOLIDATIONS, STREET RAILWAY. 231. Through purchase and sale thirteen street railway consolidations have been effected during the year. In each case this has been accompanied by specific reductions in fare and extensions of rights of transfer. These consolidations tend also to afford larger opportunity for equal- ization of fares, improvement in service and the exercise of supervision over opera- tion. There must, however, be a limit to the extent to which it is advisable that street railways should be brought under one management. Having this in mind, there is no reason to doubt the beneficial effects of the union thus far made, without increase of capitalization, of several smaller companies into one stronger system, with its less expensive methods of operation and larger facilities for the conduct of a satisfactory public service. 1901, 94. 232. The legislative policy of the Common- wealth with respect to consolidation of street railway companies has been radically different from that with respect to steam railroads. A general law was passed in 1897 authorizing the purchase and sale or consolidation of street railway companies incorporated under the laws of the Com- monwealth, whose railways connect, in- tersect or form a continuous line, upon approval of terms of consolidation by the Board. That statute was in effect a declaration by the legislature that the general consolidation of street railway companies with one another in this com- monwealth was not inconsistent with the public interest. Special report to General Court, Bennington and No. Adams purchaaD, 1910, 108. 233. While it is true that many miles of street railway constructed in an era of rapid development have proven unre- CONSOLIDATIONS, STREET RAILWAY — Con. munerative to investors, the general law which has permitted the consolidation of these lines with stronger companies has secured to the travelling public in almost every case an improved and more efficient service; and the statute affords ample opportunity for future consolidations of street railway companies with each other in this commonwealth whenever occasion lb. 234. A careful re-examination of existing transportation conditions in Massachu- setts and a survey of the whole field of prospective service, giving due considera^ tion to the demands of the travelling pub- lic for the immediate future, convinces us that the established policy of the Common- wealth with respect to keeping separate and distinct the railroad corporations and street railway companies is a system of official administration entirely consistent with the public interest. lb. 235. Under a wise governmental policy the transportation facilities of this state have been developed and are being constantly improved. A prudent conservatism may well refrain from a radical departure from this policy. lb. 236. Under the provisions of a wise and conservative body of laws, a comprehen- sive and efl&cient railroad and railway serv- ice has been created in this commonwealth. These two systems of transportation, in healthful competition, are fulfilling their functions as public servants of our people. Each, within its distinct field of service, should receive the most favorable consid- eration of the General Court. Neither, however, should absorb the other, in whole or in part, until experience has completely demonstrated that only by the adoption of such a policy can Massachusetts con- tinue to secure the full benefits of two great public utilities. lb. For recent decisions on merger of street rail- ways, see Northampton & Amherst St. Ry. Co, et ai., 1906, 124. Special report, B. E. Ry., and West End, 1909, 160. B. & N. and O. C. St. Ry. Co., 1912, 160. CONSTITUTIONAL LAW — CROSSINGS. 29 CONSTITUTIONAL LAW. See 56, 61, 87, 91, 166, 177, 184a, 188, 200, 212, 2196, 257, 282, 318, 335, 351, 370, 377, 382, 392, 402, 448, 528, 545, 549, 559, 570, 581, 586, 594, 595, 647, 663, 7016, 705, 709, 716, 736, 746, 774, 819, 856, 908, 910. See also Gates. CONSTRUCTED. See 754. CONSTRUCTION. See Location; Stock and Bonds. For an investigation (decided upon its par- ticular tacts) into the good faith of the construction expenses of a railroad, see Nelson D. Duxbury & Cohasset K,. Co., 1878, 105. For definition, see 742, 746, 754. CONTRACT. See 54, 81, 89, 97-109, 154, 168, 399, 400, 402, 542, 560, 580, 721, 768-776, 778, 781-783, 787, 933. CONTRACTOR. See Location; Milk Transportation; Accom- modations, IV. (Freight). CONTROL. Of electric cars. See 904, 907. CONVENIENCE. iSee Public Convenience. See also 131. CORDWOOD. See 474. COUNTY. Omission of name of, in articles of association for formation of a street railway com- pany. See Articles of Association. COUNTY COMMISSIONERS. See 105, 206, 239, 247, 248, 250, 254, 255, 256, 257, 264, 265, 266, 278, 280, 298, 331, 332, 335, 349, 5966, 597, 617. CORPORATE POWERS. Street Railway. 237. The petitioning companies have failed to make good the assurance upon which locations were granted to them, and now offer nothing in the way of a substantial promise for the future. We cannot grant the petitions merely to enable individual investors to escape the financial losses which are due to the inaction and in- ability of the companies in which they have been interested. Maplewood & Danvers St. Ry. Co. et al. pet. for extension of time for construction, 1907, 224. See also Express, Street Railway. COST OF SERVICE. See 37, 40, 43, 44, 48, 50, 51, 52, 86, 418, 428, 446, 449, 456, 457, 458, 461, 468, 469, 485, 486, 490, 491, 492, 558, 563, 568, 574, 591, 592. COUPLERS. 238. Statute 1886, 242 [repealed 1894, 69, the act becoming a law without Gov. Greenhalge's signature], was apparently intended, on the one hand, to forbid the possible exclusion of some new invention superior in its merits to all that had pre- ceded it, and, on the other hand, to pre- vent the evils that would arise from keeping the coupler question open from day to day for an indefinite number of devices without exceptional merit. 1887, 28. For a discussion of automatic couplers on freight cars, and of Stat. 1884, 222 [R. L. Ill, § 202, now 1906, 463, Part II, § 160], see 1881, 62; 1884, 165; 1885, 25; 1886, 28; 1888, 52; 1893, 40; 1895, 34; 1896, 38. COUPONS. See 542, 544r-548. COUPON NOTES. See 18^8, 119. CROSSINGS. See Accommodations, II.; Legislature. I. In General. II. Of a Railroad bt a Way. III. Of a Wat by a Railroad. IV. Of One Railroad by Another. V. Signals at Crossings. VI. Alteration and Regulation of Crossings. VII. Abolition of Grade Crossings. I. In General. 239. In 1882, 135, § 1 [R. L. Ill, § 145, now 1906, 463, Part II, 122], providing that "any party aggrieved" by the decision of the county commissioners in any pro- ceedings arising under P. S. 112, §§ 129 and 138 [R. L. Ill, §§ 134 and 143, now 1906, 463, Part I, §23; and Part II, §120] relating to crossings, may appeal there- from to the Board, the word "party" is not used in its technical sense, as meaning "party to the record", but in its broader sense, as meaning "person." Sel. of Brookline, pet'is, 1886, 134. 240. The words "party aggrieved" in Stat. 1882, 135, § 1 [R. L. Ill, § 145, now 1906, 463, Part II, § 122], as above construed, include not only land owners specially in- terested but any persons having an in- terest. lb. 241. It would not be prudent to sanction a temporary crossing of less thorough and skilful construction, or with a less care- ful consideration of the dangers involved 30 CROSSINGS. CROSSINGS — Con. and the precautions necessary for the safety of travel on the railroad and rail- way, than if the crossing were to be per- manent. Laorainater & Clinton St. Ry. Co., pet'rs, 1897, 139. 242. It seems that the statute gives to the Board the power to require the corpora- tion to erect and operate gates even at private ways, if the public safety so re- quires. . . . To require a railroad corpora- tion to erect and operate gates might in time result in converting a private into a public way, thereby subjecting the cor- poration to a servitude for which it has received no consideration, and which has not been imposed upon it according to the methods prescribed by the statute. Gloucester t). Boston & Maine Railroad, 1892, 181. Under R. L. Ill, § I44 (now 1906, 46S, Part II, § 121). ' 243. The argument of the petitioner is that he has been deprived of a way across the railroad, which had been gained by pre- scription, by the taking of the land for railroad purposes in connection with the abolition of certain grade crossings; and that although he has brought suit in the courts for compensation on account of the injury, money damages will not make good the loss suffered through the closing of this way from one part of his premises to the other. He therefore urges that a private right of crossing be re-created for his benefit. It is admitted that the stat- ute does not create any new right of cross- ing; and no claim is made of « right of way by necessity, as known at common law, since there is communication be- tween the different parts of the petitioner's estate by a route over the highway. The case rests wholly upon the claim that a more convenient right of crossing existed which had been acquired by prescription and which has been destroyed. Assum- ing this to be so, we are met point blank by the difficulty that there is nothing in the wording of the statute or of the de- cisions interpreting it which indicates that it was intended to afford the relief sought. Bemis s. N. Y., N. H. & H. R. Co., 1906, 56. 244. Further, if the petition be treated as a request for an equivalent of what has been taken away it would mean the re-estab- lishment of a private grade crossing as an incident of the abolition of public grade crossings over a railroad. As a matter of sound public policy the Board must CROSSINGS — Con. decline to grant such a request unless the circumstances presented show a situation of extreme hardship. Ih. See also Equity Assoc, pet'rs, 1904, 73. Travelled Places. 245. For a ruling of the Board that a certain crossing of a railroad in Holyoke must be considered a "travelled" place notwith- standing arguments of counsel that it was not a public street or a "travelled" place such as is contemplated by the law, see Holyoke V. New Haven and Northampton Company. Repords, Vol. 4, pp. 31, 32. 246. A private way, if largely used, may be a travelled place within the meaning of the statute which provides for the estab- lishment of safeguards at such places. Physical conditions will readily permit here the construction of an underpass which will prevent the peril that always attaches to a crossing at grade, however safeguarded. Under these circumstances the Board would be unwilling, if it had the right, to encourage an increased use of this private grade crossing by protect- ing it with a flagman, such action tending to delay a public improvement that ought to be forwarded and not postponed. Page Storms Co., pet'r,1908, 188. For discussion of stations near grade cross- ings, see Stations. For a general discussion of the subject of grade crossings, see 1882, 15; 1887, 21. For discussion of new crossings at grade, see 1892, 33. II. Of a Railkoab bt a Wat. Jurisdiction, etc. 247. A petition for the consent of the Board to a grade crossing is not an appeal from the county commissioners, but is an in- dependent proceeding upon independent testimony. City of Holyoke, pet'r, 1886, 97. 248. Upon a petition for consent to the crossing of a railroad at grade by « town way, it is a fatal objection to the juris- diction of the Board that the county com- missioners have not adjudicated that pub- lic convenience and necessity require that the way be laid out across the railroad. Framingham v. B. & A. R. Co., 1884, 163. 249. Or that public necessity requires that the way cross at grade. lb. CROSSINGS. 31 CROSSINGS — Con. 250. Under P. S. 112, § 125 [R. L. Ill, § 130, now 1906, 463, Part II, § 113], relating to the mode of laying out a town way, the special duty of adjudication given to the county commissioners, whenever a pro- jected town way intersects a railroad, is intended to be additional only, and not exclusive, the town authorities not being deprived of their initiatory powers; and the Board has no jurisdiction of a petition for consent to the crossing of a railroad at grade by a town way which has been laid out by others than the town authorities. lb. 251. It is no objection to a petition by road commissioners for a grade crossing over a railroad that the town way has not yet been laid out. Iload Com'rs of Framingham v. B. Co., 1886, 96. ; A. R. 252. A charge that a town way has not been legally laid out is not supported by evi- dence that the way laid out is only a por- tion of the way petitioned for, and does not extend as far as the second terminus named. lb. 253. Or by evidence that, instead of the W3.y being laid out from terminus to terminus, two portions of the way have been laid out, with an intervening space at the point of intersection with the railroad, over which it is proposed to extend the way when leave is obtained to do so. lb. 254. Under P. S. 112, § 125 [1906, 463, Part II, § 1131, the Board has no juris- diction of a petition for consent to the crossing of a railroad at grade by a town way, unless it appears that the petition to the county commissioners is a petition of the town officials. Framingham ». B. & A. E. Co., 1884, 163. 255. There can be no question that the authority given to the county commis- sioners to determine the manner in which the railroad shall cross a highway gives them authority to determine whether it shall go over or under or on a level there- with. If their decision does not conform to the plans, or if the Board of Railroad Commissioners refuse approval of a grade crossing, the proposed grades of the rail- road must be changed. Cambridge v. B. & A. E. Co. et al., 1891, 182. 256. Under the Public Statutes [Revised Laws, etc.], when a city or town desires to CROSSINGS — Con. lay out a way across a railroad, the mayor and aldermen or selectmen thereof are obliged to petition the county commis- sioners for permission so to do ; and in such case, after due notice to the railroad cor- poration and hearing all parties interested, the county commissioners may authorize the city or town to lay out the way "in such manner as not to injure or obstruct the railroad" and in conformity with cer- tain provisions of law in relation to head- room, but even they cannot permit the way to cross at a level with the railroad unless public necessity so requires and unless the Board of Railroad Commis- sioners also consents thereto in writing. (Pub. Stats., 112, § 125.) [1906, 463, Part II, § 113.] 257. Therefore, under the Public Statutes [Revised Laws, etc.], whatever original action relating to grade is taken either by a railroad company in lajdag out a railroad across a highway or by a city or town in laying out a public way across a railroad, such action is provisional and is subject to such modifications as the decisions of the county commissioners and of the Board of Railroad Commissioners may render necessary. lb. See also Brief for the Commissioners, Cam- bridge, petr. for mandamus, v. Board, 1891, 188. 258. When the word " selectmen " is used in statutes relative to ways, it refers only to those towns that have not elected road commissioners, and means "selectmen or road commissioners;" and under P. S. 27, § 75 [R. L. 25, § 83], giving powers to road commissioners in matters concerning streets and ways, a petition for leave to lay out a street at grade over a railroad ought to be signed by the road commis- sioners, if any, and not by the selectmen of a town; and in default of such signa- ture the Board cannot take jurisdiction of the petition. Framingham b. B. & A. R. Co., 1885, 111. 259. On a petition to allow a crossing at grade, the only question which the Board can entertain is whether a grade crossing shall be allowed, and it belongs to another tribunal to decide, in case a grade crossing is not allowed, upon the method of separat- ing the grades. [See Crossings, VI.; 1902, 440, now 1906, 463, Part I, §§ 29, 34, 35, 36, 39, 42, 43.] Citizens of Whately, pet'rs, 1881, 219. 32 CROSSINGS. CROSSINGS — Con. 260. Or upon whether the laying out of a street, to which the Board is asked to con- sent, has been done according to the forms of law. Re Station street, 1881, 220. 261. The Board has no power to apportion the expense of an overhead crossing be- tween the parties concerned. [See R. L. Ill, § 136; 1902, 533; 1906, 463, Part I, §25]. Sel. of Beading, pet'ra, 1882, 134. Burden of Proof. 262. In a petition for consent to a crossing at grade, the burden is on the petitioner to show that an exception should be made to the general rule forbidding such cross- ings. Cobum et al., pet'rs, 1882, 127. When a Crossing vnll he Permitted. 263. All grade crossings of railroads and other travelled ways are against the public policy of the Commonwealth. By sections 123 and 125 of chapter 112 of the Public Statutes [R. L. Ill, §§ 128 and 130, now 1906, 463, Part 11, §§ 111 and 113], a railroad and highway are not permitted to cross each other on the same level unless "public necessity" so requires, nor unless "special authority" and "consent" are granted on the ground of such necessity. Hull S. R. Co., pet'r, 1893, 164. 264. The Board will not review the deci- sions of the local authorities or of the county commissioners on the point of public necessity for a crossing unless for clear and forcible reasons. Lynn v. E. R. Co., 1879, 385. 265. But even where the Board accepted the findings of the county commissioners as to a public necessity for a crossing at grade, it refused to grant the application for the crossing, where it appeared that an adja- cent crossing, already existing, furnished sufficiently, and with less risk, the accom- modation for which the necessity existed. Sel. of Georgetown, pet'ra, 1879, 387. 266. Upon a petition for permission to lay out a town way across a railroad track at grade, if it appears that the county com- missioners have decided that a way is necessary, leading substantially from ter- minus to terminus of the proposed route, the questions before the Board are whether such a necessity is shown as will justify the danger of a grade crossing, and whether CROSSINGS — Con. the grade crossing can in any manner be avoided, by going under, over or around the point of danger. Sel. of Falmouth, pet'ra, 1884, 161; 188S, 106. 267. Even though a necessity for some cross- ing is shown to exist, it will not follow that a necessity for a crossing at grade exists, unless the lay of the land, or its occupa- tion, or some other cause makes it impos- sible to have any other mode of crossing without inordinate expense or unreason- able inconvenience. Road Com'ra ot Fairhaven, 188B, 103. 268. The crossing of a railroad by a highway at grade, was permitted where it was shown that a public necessity for a crossing existed, and that the crossing could not be carried over or under the tracks except at a cost and at a degree of permanent public inconvenience which would be un- justifiable. Lynn v. E. R. Co., 1879, 385. See also Re D Street, 1880, 216. 269. Where upon a second hearing it ap- peared that travel upon a street had in- creased largely and would continue to, the ■ fact was held material as showing (1) that public necessity required a crossing, and (2) that the danger of a crossing at grade would be augmented, and as furnishing, therefore, an additional reason for grant- ing the crossing and also for requiring that it shall not be at grade. Be D street, 1881, 15, 216. 270. A grade crossing will be consented to, a public necessity for some crossing being shown, where it is necessary to avoid in- ordinate expense or damage to property. Sel. of Reading, pet'rs, 1882, 134. City of Holyoke, pet'r, 1886, 97. 271. Or where none but a grade crossing is practicable. Sel. of Sudbury, pet'rs, 1882, 135. 272. Where a public necessity existed, the crossing of a railroad by a highway at grade was permitted, when it appeared that the construction of a bridge would involve unreasonable expense, that a private crossing at the same place already existed, and that to convert it into a pub- lie way would lessen the danger of such a crossing. Sel. of Peabody, pet'rs, 1879, 388. Be Station street, 1881, 220. CROSSINGS. 33 CROSSINGS — Con. 273. And when, by so doing, the Board could secure the abolition of two or more danger- ous crossings in the same town. Sel. of Falmouth, pet'rs, 1887, 76. 274. But the crossing of a railroad at grade by a highway was not permitted, even though a private crossing already existed, where it appeared that the proposed cross- ing would materially increase the danger to travellers, and that the desired accom- modation could be secured in another manner at a not unreasonable cost. Sel. of Falmouth, pet'rs, 1879, 388. 275. The Board consented to the crossing of the railroad by a highway at grade, where a travelled way already crossed a railroad at grade at the point in question, and a public necessity for a crossing appeared, and where it did not appear that a refusal to consent would diminish the danger arising from such a crossing. Road Com'rs of Brookfield, pet'rs, 1881, 218. See also Re E. R. Co., 1886, 17. 1886, U. Sel. of Attleborough, pet'rs, 1887, 77. 276. But for a case where the Board refused a grade crossing, even though a travelled way already existed at the same point, see Re Beachmont avenue, 1888, 132. 277. The unanimity of the people of a town in favoring a crossing at grade is not a con- clusive reason for granting the grade cross- ing. Sel. of. Waltham, pet'rs, 1882, 132. Road Com'rs of Fairhaven, pet'rs, 1886, 103. 278. No vested right to a grade crossing is obtained by filing a petition for it before the county commissioners at a time when the impossibility of constructing any other crossing would have made it proper to grant the petition; and if, at the time when the matter comes before the Board for adjudication, the circumstances have changed, and upon the state of facts then existing it would be improper, the Board will refuse to consent. City of Holyoke, pet'r, 1886, 97. 279. And the chief question being the safety of the travelling public, it is immaterial that the change of circumstances has come about through action on the part of the railroad corporation, or that their action was taken in bad faith. lb. CROSSINGS — Con. 280. The statutes clearly state that nothing but "public necessity" is a sufficient ex- cuse for the creation of a new crossing at grade (P. S. 112, §§ 123 and 125) [1906, 463, Part II, §§ 111 and 113]. For many years it has been provided by law that no such crossing shall be established un- less the county commissioners adjudge that public necessity so requires, and un- less the Board of Railroad Commissioners consents thereto in writing. This year the Legislature has gone further, and, in proof of the sincerity of its conviction that grade crossings are a public calamity, and that those which now exist ought to be abolished with the utmost rapidity, it has passed a law under which the State assumes the payment of from twenty-five to thirty-five per cent, of the cost to be in- curred in such abolition. Not only law but experience teaches this Board that its power to authorize grade crossings should only be exercised with extreme conserva- tism. Old Colony R., pet'r, 1891, 199. 281. In the act of the present year the Legis- lature has in a measure condoned the past by providing that the Commonwealth shall pay a portion of the expense of abohshing all grade crossings created be- fore the passage of the act; but it is expressly stated that the Commonwealth will pay no portion of the expense of abolishing any grade crossing created after the passage of the act (1890, 428, § 3) [R. L. Ill, § 151, now 1906, 463, Part I, § 34]. A crossing at grade, therefore, which is now established will stand before the pub- lic more hopeless of remedy than any of its fellows. lb. 282. For discussions of private grade cross- ings, see 1895, 79; 1897, 48.1 What Constitutes a Necessity. 283. The Board will not consent to the lay- ing out of a town way across a railroad at grade, unless not merely a public con- venience but a public necessity for the crossing is shown. Sel. of Attleborough, pet'rs, 1880, 225. Sel. of N. Andover, pet'rs, 1882, 129. Hoad Com'rs of Fairhaven, pet'rs, 1885, 103. 284. The necessity for the crossing must be plain, manifest and urgent. Sel. of Falmouth, pet'rs, 1884, 161. 1 187 Mass. 45. In this case the court found that after land of a railroad company has become a public highway by prescription, an owner of adjoining land cannot acquire a private right of way of adverse use in travelling over it. This referred to certain grade crossings in Fall River abolished under 1900, 472. 34 OEOSSINGS. CROSSINGS — Con. 285. The degree of necessity and the amount of danger both depend somewhat on the character of the travel expected. lb. 286. Where the crossing asked for was a part of the only way by which convenient access could be had from a thickly settled neighborhood to the station of another railroad beyond, a public necessity was held to exist for the crossing. Lynn !). E. R. Co., 1879, 385. 287. For a general reference to the views of the Board, see Citizens of Whately, pet'rs, 1881, 219. Sel. of Waltham, pet'rs, 1882, 132. Coburn et al., pet'rs, 1882, 127. III. Of a Wat bt a Railroad. Jurisdiction, etc. 288. Where a proposed railroad will not cross any public way, no consent of the Board is necessary, and the Board has no jurisdiction of a petition for such consent. Connecticut River R. Co., pet'r, 1886, 108. See also Mass. Central R. Co., pet'r, 1881, 220. Wilbraham, pot'r, 1391, 171. 289. A petition by a railroad company for authority to lay an additional track out- side of its location and across a highway is governed by G. S. 63, §§ 58, 59 [R. L. Ill, § 130, now 1906, 463, Part II, § 113], relative to crossings at grade. Fitohburg R. Co., pet'r, 1872, 203. When a Crossing will be Permitted. 290. Upon a petition by a railroad corpora- tion for consent to the crossing of a high- way at grade, a clear public necessity, local or general, must be shown. ■ Fitohburg R. Co., pet'r, 1872, 203. 291. A grade crossing will be consented to, a public necessity for a crossing being shown, when it would be less dangerous than any other mode of crossing. Mass. Central R. Co., pet'r, 1882, 131. 292. Or when no other mode of crossing is practicable. 293. The crossing of a public street at grade by a railroad was granted when it appeared that the way, though nominally a street, had practically been dedicated to other uses, and lawfully constituted part of a CROSSINGS — Con. freight yard used in connection with adjacent factories. B. & M. Railroad, pet'r, 1886, 107. B. & L. R. Corp., pet'r, 1886, 108. 294. It was held to be no reason for granting a crossing at grade that the railroad was a short one, with a proportionally small capi- tal, and that the additional cost of an underpass would seriously hinder the con- struction of the road, where, upon a peti- tion by a railroad company for crossing a highway at grade, it appeared that such a crossing would be peculiarly dangerous, and that an underpass was perfectly prac- ticable. Boston & Winthrop R. Co., pet'r, 1883, 119. 295. A petition for consent to the crossing of public ways at grade by a railroad was granted where it appeared that substan- tially the same crossings had been already permitted and were now asked for in a less dangerous form, and also that if grade crossings were refused the railroad would not be constructed and public necessities would remain unsatisfied. B. & L. R. Corp., pet'r, 1886, 17, 112. See also 1886, 17. 296. Where a bill providing for the construc- tion of a railroad has been opposed on the ground that it would render necessary many grade crossings, and the Legislature, notwithstanding, has overruled these ob- jections by passing the bill, the Board will consent to grade crossings petitioned for by the corporation if the effect of a refusal to consent would be to revise and annul the act of legislation by suspending and preventing the construction of the road. Maas. Central R. Co., pet'r, 1881, 220. 297. Where the proper mode of crossing is to construct a highway bridge over the rail- road, but the construction of the bridge is delayed by no fault of the corporation, the Board has no power to grant a merely temporary crossing at grade; but where it appeared unjust to delay any longer the operation of the road the Board consented in the usual manner to the crossing at grade, recommending to the parties a speedy separation of grades. Mass. Central R. Co., pet'r, 1882, 133. See also Location, II. CROSSINGS. 35 CROSSINGS — Con. Under R. L. Ill, § 279 (now 1906. 463, Part IJ, 261). 298. The petitioner has obtained the consent of the mayor and aldermen of Beverly to the construction of a private track across Cabot and along Water streets and also the consent of the Boston & Maine Rail- road to the connection of this track with its road. Were the cars to be oper- ated by horses, by cable, by an electric locomotive or electric power in any other form, no further proceedings would be necessary. As it is intended, however, to use steam power, the county commis- sioners must adjudge that "public neces- sity requires the crossing of the highway," and if the cars cross at grade then the "consent" of this Board must be obtained. J. M. Guffey Co., pet'r, 1904, 79. 299. It is to be borne in mind that the statute which sanctions private freight crossings represents a state policy as clearly defined and as thoroughly tested as that which at the same time provides for the abolition of steam railroad and highway crossings at the same grade. These laws have existed in harmony, side by side, for many years and action under both has been repeatedly approved. Nat'l Dock & Warehouse Co., pet'r, 1907, 107. 300. Private freight tracks should be carried over or under rather than at the same level across a public highway where this can be accomplished without unreasonable ex- pense. Fore River Ship & Engine Co., pet'r, 1904, 75. 301. For recommendation as to gates at grade crossings, see Selectmen of Attleborough u. Old Colony R. Co., 1890, 85. East Biookfield accident, 1907, 111. For decisions on petitions as to safeguards at crossings, see Selectmen of Reading, pet'ra, 1906, 104. Selectmen of Boxford, pet'ra, 1907, 109. See also Location, Y. IV. Op One Railroad by Another. Jurisdiction, etc. 302. Whether 1872, 180, § 3 [R. L. Ill, § 123, now 1906, 463, Part II, § 106], providing that no railroad thereafter constructed should cross at grade the track of any other railroad, appHes to a road already located but not wholly constructed is a CROSSINGS — Con. question which a court of law alone, and not the Board, is competent to decide. B., Barre & Gardner R. Co., Ware River R. Co., pet'rs, 1874, 129. 303. Where the tracks of a corporation cross those of others at grade, the question whether the laying down of a third rail on its tracks by the former, for the sole use of the cars of another corporation desiring to enter upon and use those tracks and thereby to cross the tracks of the other corporations, would be a new crossing at grade such as under 1874, 372, § 85 [1906, 463, Part II, § 106], would require the ap- proval of the Board, is one which must be decided by the courts. Boston & Mystic Valley R. Co., pet'r, 1879, 363. 304. Under the general laws, and except in case of special legislation, the location of street railways upon highways over cross- ings at grade belongs whoUy and without appeal to the municipal authorities of each town or city. Charles River St. R. Co. v. Fitchburg R. Co., 1883, 125 obsolete — see R. L. 112, § 63; R. L. Ill, §271. When u Crossing will he Permitted. 305. Upon the hearing before the Board for the approval of a grade crossing under 1874, 372, § 85 [1906, 463, Part II, § 106], only the question of the grade crossing is before the Board and not the economy, policy or public expediency of the pro- posed construction ; and the issues will be, first, whether a grade crossing is necessary, or can be avoided only at an unreasonable cost, and, second, if it is unavoidable, how it can be effected with the least degree of inconvenience to the corporations and danger to the public. XiOwell & Lawrence R. Co. v. B. & M. Rail- road, 1879, 99. 306. A petition that a company be allowed to cross the track of another railroad at grade will not be granted unless a manifest public convenience exists, a preponderance of convenience so great as to override both considerations of safety and a, fixed public policy. B., Barre & Gardner R. Co., Ware River R. Co., pet'rs, 1874, 129. 307. A grade crossing will not be authorized, no manifest public convenience existing, merely because a company, in ignorance of the law applicable to the subject, has 36 CROSSINGS. CROSSINGS — Con. expended certain sums of money in prep- aration for the crossing. lb. See also 1874, 40. 308. Where it appeared, in a petition for the crossing at grade of one railroad by another, that the petitioner's lessee was owner of the road to be crossed, and assented to the petition, and that the road to be crossed was so rarely used that it could hardly be regarded as a railroad in operation, the Board assented to the crossing at grade. Mass. Central R. Co., pet'r, 1881, 222. 309. For petitions to cross other railroads at grade, decided upon their facts, see Midland R. Co., pet'r, 1879, 361. Prov. & Worcester R. Co. s. B. & A. R. Co., 1886, 141. Railroad and Street Railway. 310. Even where a dangerous grade crossing has existed for a long period, the Board will not sanction any increase of travel over it, as by granting permission to a street railway to lay its tracks upon the highway at the point of crossing, when there is another fairly practicable route, which will secure to travellers the desired accommodation. Charles River St. R. Co. v. Fitchburg R. Co., 1883, 175. 311. The proposed route of a street railway, requiring a crossing at grade, was held to be the only practicable route, where it appeared that permission to use the only other existing way could not be obtained from the town authorities. lb. 312. But, in a, similar case, the Board re- fused to permit a grade crossing, even where no other route was practicable. Newton St. R. Co., pet'r, 1888, 130. 313. In order to justify the crossing of a railroad by an electric street railway at grade, it is not enough to show that there is a public necessity, however strong, for the electric railway. It must further ap- pear that there is no practicable way by which a grade crossing can be reasonably avoided. Interstate S. R. Co., pet'r, 1 , 162. 314. With the extension of street railway lines there is continually arising the ques- tion of the crossing of railway tracks over those of steam railroads. It is urged that, CROSSINGS — Con. under the restrictions and safeguards placed about such crossings when approved by the Board, the dangers otherwise at- tendant upon them have been very largely removed. But no safeguards or restric- tions can be established which will do away with the danger liable to arise at any moment from the stalling of a street car during its passage over the railroad tracks. Experience has shown that such an event is of frequent occurrence, from causes such as the temporary loss of motive power, de- railment, burning out of fuse, or dis- arrangement or breakage of apparatus at the critical moment. 315. In view of this peculiar danger and the unusually grave results to be apprehended in the case of a collision under such cir- cumstances, the Board has adopted the policy of refusing to allow such crossings whenever there is any reasonable oppor- tunity to avoid them. Following the recommendation of the Board, a statute was enacted, chapter 404, Acts of 1898 [R. L. 112, §§ 65-68, now 1906, 463, Part III, §§ 113-116], enabling street railway companies to take private land for the purpose of avoiding grade crossings over steam railroads. Applications for ap- proval of grade crossings are now usually made only in cases where it is alleged that the building of a trestle or construction of a passageway under the railroad is im- practicable by reason of engineering difficulties, disproportionate and unrea- sonable expense or other peculiar con- ditions. In the opinion of the Board, it is only under such exceptional circum- stances that grade crossings should be approved, and then only for a limited period, in the expectation of a future sepa- ration between the grade of the railroad and the highway. lb. 316. The returns of accidents upon steam railroad premises show that the involun- tary stopping of electric street cars while crossing railroad locations, by reason of the unexpected burning out of a fuse, temporary loss of power or derangement of some part of the electric equipment, is a matter of frequent occurrence. The risk involved ... is manifestly very great. In view of the declared policy of the State . . . the Board as a rule de- clines to approve a grade crossing of steam railroad and street railway whenever with- out disproportionate expense it is prae- CROSSINGS. 37 CROSSINGS — Con. tioable to construct a way over or under the railroad. East Taunton St. Ry. Co., pet'r, 1901, 248. See also Blue HUl St. Ry. Co., pet'r, 1901, 249. 317. In the exceptional cases where a grade crossing of street railway and railroad has been sanctioned, the Board has required either that the street railway company shall maintain a man at such crossing for the sole purpose of directing the movement of the street car over the railroad, or that every car shall be stopped within one hun- dred feet of the railroad, the conductor to go forward to the place upon the raHroad premises where he can obtain the best view of approaching trains, and from that point direct the movement of the car over the tracks, remaining there until it shall have crossed. . . . Formerly conductors have been permitted, after stopping their cars within one hundred feet of the rail- road, to return to their cars after taking a view of the premises, and immediately start them across the railroad tracks. We believe this a dangerous practice, for the reason that in the lapse of time between the inspection of the crossing by the con- ductor and the arrival of the car at the crossing, conditions may have so changed as to make perilous a crossing which had appeared safe.^ 1904,64. For discussions of this subject, see 1883, 49; 1892,34; 1893,111; 1894,114; 1897,142, 143; 1898, 160-171; 1899, 126-133; 1901, 86. See also Southborough Selectmen et al., pet'rs 1904, 104, — Location, V. V. Signals at Crossings. 318. Under 1874, 372, § 122 [R. L. Ill, § 186, now 1906, 463, Part II, § 145], requiring the Board to make "regulations" for the crossing of one railroad by another, "in such detail as they may deem expedient," the Board has power to prescribe only as to the operation of the roads at the cross- ing, and not as to the structure of the crossing; and, therefore, cannot order CROSSINGS — Con. that a switch crossing be changed to a frog crossing, or a grade crossing to an overhead crossing.' N. London Nortliern R. Co. jj. Fitchburg R. Co., 1881, 22S. 319. But where it appeared that the road making the crossing was exposed to great delay and annoyance, and was subjected to the convenience of the road crossed, by reason of the existence of a switch crossing, it was recommended, and not ordered, that the crossing be changed to a frog crossing. lb. 320. The provision of 1872, 313 [1874, 372, §§ 85, 182; R. L. Ill, § 123, now 1906, 463, Part II, § 106], prescribing rules to be observed in the passage of trains at grade crossings, applies to cases where both roads crossing at grade are under the control or management of the same parties. Re B., Hartford & Erie R. Co., 1874, 138. 321. Public Statutes, 112, § 161 [R. L. Ill, § 185, now 1906, 463, Part II, § 144], re- lating to signals at crossings, does not apply to the case of intersecting tracks of one railroad managed and operated by one head. Riolimond v. O. C. R. Co., 1884, 125. 322. If the maintenance at a railroad cross- ing of an automatic system of warning travellers of an approaching train through the sounding of electric bells is ever justi- fied the conditions at the crossing in ques- tion justify it. This is a branch road, the view of approaching trains good and the speed of trains necessarily slow as they regularly stop at the station close by. There is no evidence that the plant is not properly installed or that it fails to give the warning which it is supposed to give. The statutes recognize this method of safeguarding crossings, and the Board is not prepared at this time to say that under circumstances like those disclosed in this case such a method is improper or ineffectual. Marshfield selectmen, pet'rs, 1906. 1 In permitting crossings of railroad by railway tracks it is usual to make the following rule Csee Spring- field St. Ry. Co. petr., 1912, 170): — Every street car, on approaching the railroad, shall be stopped within one hundred feet therefrom, and the conductor of such car shall proceed to a point upon the railroad premises from which he can secure the best view of approaching trains, at which place he shall remain until his car shall have crossed under his direction. 2 Gerry v. N. Y., N. H. & H. R.R., 194 Mass. 35. In this case the court found that the regulations for opera- tion of interlocking signals approved by the Railroad Commissioners as to spded of trains are made for the safety of the trains and in no way affect the duty of the railroad company toward owner of a horse standing near the track as a train approached, which became frightened and was killed. 38 CROSSINGS. CROSSINGS — Con. 323. Under 1872, 313 [1906, 463, Part II, § 106], an entry and ijse of one railroad by another for the sole purpose of crossing must be considered as a crossing at grade. Re B., Hartford & Erie R. Co., 1874, 138. 324. When a corporation has voluntarily or by order of the authorities stationed a flagman at a crossing, he ought not to be withdrawn during the evening while trains continue to run. Prentice v. B., R. B. & Lynn R. Co., 1884, 153. 325. A petition for an order to place flagmen at a crossing was not granted where it ap- peared that the travel did not warrant such an order. Bellingham v. N. Y. & N. E. R. Co., 1885, 109. Andover v. B. & L. R. Corp., 188B, 109. 326. Nor where it appeared that another and better way existed to obviate the danger of the crossing. Bellingham v. N. Y. & N. E. R. Co., supra. 327. For a recommendation to place flag- men at crossings at extraordinary times, see lb. 328. See also Beverly v. B. & M. R., 1912, 175 (Bells as additional warning). VI. Altekation and Regulation of Chossings. 329. None of the words "location, construc- tion, maintenance, and operation" in the first clause of 1874, 372, § 5 [R. L. Ill, § 2, now 1906, 463, Part II, § 2], apply to the case of a petition for a separation of the grades of a highway and a railroad; and of such a petition, therefore, the Board has no jurisdiction. Aldermen of Boston, pet'rs, , 109. 330. Under 1872, 262 and 1874, 305 [R. L. Ill, § 134, now 1906, 463, Part I, § 23], no power is in terms given to the Board to change the grade of a railroad, upon proper petition, when found necessary for the security or the convenience of the public; and it is extremely doubtful whether by the said provisions such power is given by implication. lb. See aho 1890, 428, § 4 [R. L. Ill, § 152]. 331. The proper way to secure the abolition of a dangerous grade crossing is not to complain to the Board, who dould, at the most, only make a recommendation, but to petition the county commissioners for | CROSSINGS — Con. a separation of grades under P. S. 112, § 129 [1906, 463, Part I, § 23], or 1885, 194 [superseded by R. L. Ill, § 149, now 1906, 463, Part I, § 29]. Alexander v. B. & M. Railroad, 1887, 82. See also N. London Northern R. Co. v. Fitch- burg R. Co., 1881, 228. 332. Whether the county commissioners are the proper parties to fix the amount of damages incurred under P. S. 112, § 129 [1906, 463, Part I, § 23], when no land is taken and § 130 [R. L. Ill, § 135, 1906, 463, Part I, § 24], does not apply, — 188S, 42. 333. The petition bears the individual signa- tures of four of the seven aldermen. A motion to authorize the petition, made at a meeting of the board of aldermen, failed of passage, and these signatures were ob- tained singly by solicitation at different times and places. It is not certain that under these circumstances there has been a compHanee with the statute, which re- quires an expression of opinion by the mayor and aldermen as a preliminary to the filing of the petition. Though such expression of opinion be not a judicial act, it would seem to be doubtful whether, after a failure to obtain action in the regu- lar way, resort can properly be had to this irregular method of obtaining it. Northampton Mayor and Aldermen v. Hamp- shire Co. CommissioneiB; N. Y., N. H. & H. R. Co., appellant, 1903, 70. 334. In the same decision the Board ruled that to construct a second crossing be- cause a bridge crossing built under a de- cree of abolition had become inadequate would be an extraordinary method of "alteration." lb. 335. It is claimed by the company that the plan which has been adopted by the county commissioners for the alteration of the crossing is invalid, for the reason that it , changes the grade of the railroad and in- cidentally affects two grade crossings near by. We are inclined to think that this contention may be sound. The question is left undetermined in the case of the Boston & Albany Railroad v. County Commissioners (116 Mass. 81), but the reasoning in that case, taken with the general course of legislation, supports the claim of the company. Still, as far as it relates to this Board, this is purely a tech- nical objection, as the legislature gives it CROSSINGS. 39 CROSSINGS — Con. exclusive authority over changes in the grade of steam railroads In other proceed- ings. Appeal of N. Y., N. H. & H. E. Co., Great Barrington, 1904, 77. 336. Under 1874, 372, § 5 [1906, 463, Part II, § 2], railroad companies are not allowed to petition for the abolition of grade cross- ings in Boston; such petitions must come from the city authorities. See 1890, 428, § 1 [R. L. Ill, § 149, now 1906, 463, Part I, § 29]. Aldermen of Boston, pet'rs, 1882, 109. 1885, 42. 337. For approvals of agreements between all parties, to secure alterations of cross- ings of highways and railroads, see N. Y., N. H. & H. R. Co., pet'r, 1904, 179; 1904, 181; 1907, 119; 1908, 209, 213, 215, 217; 1909, 198, 205; 1910, 172; 1911, 167, 170, 172. Boston & Maine E.R. Co., pet'r, 1907, 122, 132; 1909, 200. West End St. Ry. Co., pet'r, 1910, 165. In General. 338. Wherever a method of stopping trains involves the unnecessary or unreasonable use of a highway for any length of time, even though it is not alleged that a stop of five minutes has ever been made, the Board will recommend that such method be discontinued. Winthrop v. B., Winthrop & Pt. Shirley R. Co., 1883, 128. 339. For petitions for change of locations in order to obviate grade crossings, see Wareham v. Cape Cod R. Co., 1871, 114. Perkins c. B. & M. Railroad, 1874, 41. Mayor of Boston v. E. R. Co. and B. & A. E. Co., 187S, 45. Peabody u. E. R. Co., 1876, 75. 340. For reports and discussions on grade crossings of railroads on the northerly side of Boston, see 1883, 49, 55. 341. For complaints, decided on their facts, that street crossings are unduly obstructed by cars and engines, see Winohendon v. Cheshire R. Co. et al., ISSl, 78. Springfield u. B. & A. R. Co., 1888, 136. 342. For a petition, decided upon its facts, for relief as to a crossing of the Grand Junction Railroad, see Dwight V. B. & A. R. Co., 1880, 233. See also 206. VII. Abolition of Grade Crossings. 343. For discussions of the expediency of the gradual aboUtion of grade crossings, see 1885, 35; 1893,40; 1901,86; 1902,35. CROSSINGS — Con. Under 1902, UO [now 1906, 463, Part I, §§ S9-S6, S9~4Z). See also R. L. Ill, § lS8i 1906, 463, Part I, § S7; 1908, 390; 1910, 644; 1911, 486. 344. Prior to 1902 the only duties which this Board had to perform in connection with the abolition of grade crossings were in passing upon changes in the grade of rail- roads and in determining whether there was sufficient money in the state fund to pay the contribution of the Common- wealth. In that year the law was changed so that now the Board is required to cer- tify "that in their opinion the adoption of the plan" proposed by the special com- missioners appointed by the Superior Court "and the expenditure to be in- curred thereunder" are consistent with the public interests. Boston & Maine Railroad, pet'r, 1908, 201. -345. Under the provisions of general law proceedings in connection with the aboli- tion and alteration of crossings are brought to the attention of the Board in several different ways. If the board of aldermen of a city, the selectmen of a town, the directors of a railroad corporation, the directors of a street railway company, or the attorney-general upon instructions from the Governor and council, file peti- tions for the appointment of a special commission to consider the abolition of grade crossings, the superior court has jurisdiction in equity to appoint such a commission "after notice by the peti- tioner to the board of railroad commis- sioners of the entry of such petition," etc. 1910, 58. 346. The court issues no decree in proceed- ings initiated as above stated until the Board, after a hearing, has certified in writing that in its opinion the adoption of the plan of the special commissioners for the abolition, discontinuance or alteration of a grade crossing and the expenditure to be incurred thereunder are consistent with . the public interests. lb. 347. The law permits the court by consent of all parties to make the members of the Board a special grade crossing commis- sion. 76. For cases decided by the members of the Board, sitting as a special grade crossing commission, see Blackstone (New Eng- land), 1908, 198; Holden (B. & M. R.), 40 CROSSINGS. CROSSINGS — Con. 1911, 142; Stookbridge (N. Y., N. H. & H. R.) 1910, 155; Lanesborough (B. & A. R.), 1910, 155; RusseU (B. & A. R., 1910, 152; Boston (B., R. B. & L. R.), 1912, 177.^ 348. The general law provides that the local authorities and railroad corporations may make an agreement for alterations in grade crossings or bridges or for abolition 9f grade crossings, which shall have the same force and effect as a decree of the court made upon the finding of a special commission if the board of railroad com- missioners approve of the alteration set forth in the agreement as necessary for the convenience and security of the public. lb. 349. Another provision of law permits altera- tions which do not involve the abolition of a crossing at grade by action of county commissioners, or, if the crossing is situ- ated in the city of Boston, by the Board. Chapter 47 of the Acts of 1909, changed this provision to permit the board of rail- road commissioners to act when the cross- ing was situated "in whole or in part" in the city of Boston. In cases of this char- acter the law provides for the appoint- ment of a special commission by the Superior Court to determine which party shall carry the decision into effect and which party shall pay the charges and expenses of making the alteration, etc., one member of this commission to be a member of and designated by the board of railroad commissioners. 76. 350. The railroad company opposes the issue of a certificate in this case on the ground that such action would not be consistent with the public interests in view of the amount of other work of this kind which is now under way upon the Boston & Maine railroad. Aside from this sug- gestion every known reason for the aboli- tion of a grade crossing of highway and railroad is found to justify the prosecution of the work in this instance. While we agree that the public interests are directly connected with the prosperity of the rail- road company and appreciate the fact that the burden of expenditures incurred in connection with the abolition of grade crossings might be under certain condi- tions a matter for grave consideration, we have no reason to believe that the financial resources of the company will be unduly taxed by the requirement that these cross- ings be abolished. Acton selectmen, pet'rs, 1906, 43. See also Chelmsford selectmen, pet'rs, 1905, 46. CROSSINGS — Con. 351. The Commonwealth now contends that the plan calls for an improper expendi- ture in station improvements, and is fur- ther objectionable in providing for a double in place of a single track, and in creating a public way where a private way has here- tofore existed. It also claims that a sav- ing in expense would be made by raising the old station instead of buUdiug a new one. Were the building of the new station shown to be merely an improvement in station accommodations and not fairly in- cident to the work of eliminating the grade crossings, we shoiild be compelled to with- hold our certificate. The special com- missioners, however, have found that it is impracticable to raise and use the old sta- tion. In a review of the facts we find so much ground for this opinion that we do not think we are called upon in the public interest to disturb it. The other ques- tions which have been raised by the Com- monwealth are such as will be fully pre- sented upon the record to the Supreme Judicial Court and the rights of the Com- monwealth protected. Selectmen of Attleborough, pet'rs, 1906, 44. 352. Every reason which would ordinarily be named for approving the separation of highway and railroad crossings is to be found in the circumstances which exist here. Moreover, the legislature, in ap- proving the lease of the Boston & Albany railroad to the New York Central & Hudson River Railroad Company re- quired an express agreement looking to the abolition of grade crossings upon the Grand Junction railroad, of which this is a part, thus placing beyond all question the propriety of the work. Boston Aldermen, pet'rs. East Boston cross- ings, 190S, 46. 353. The duty of the Board, imder the change in the statute, to secure as far as it may a "fair distribution" of the public money appropriated for the purpose of abolishing grade crossings, affords no rea- son for delaying the general progress of this most important improvement. Nor do we understand that the object of the change was to secure a geographical di- vision of the work, or exact proportions in the expenditures made by the different companies. The end to be attained is rather an order of procedure which will authorize expenditures where most needed in the general public interests, with due regard to the amount of financial burden imposed at any one time upon a particular CROSSINGS. 41 CROSSINGS — Con. city, town or corporation. The statute looks to the future, not to the past. Chelmsford selectmen, pet'rs, 1905, 47. 354. It is impossible to accurately measure and apportion the amount of peril that exists at different grade crossings. In se- lecting one crossing rather than another for abolition, the first factor to be con- sidered is the relative importance of the travel at these places, and in determining this the travel upon both the railroad and the highway is to be considered, since a grade crossing is a menace to both. lb. 355. In this instance we have a public way which has been selected as an important thoroughfare by the State highway com- mission, and upon which large expendi- tures have been made, in constructing it as a State road for long distances on both sides of the railroad. The present and future uses of this highway make it an important avenue of travel. A consider- able number of trains pass over the cross- ing daily. No objection is made to the plan for separating the grades, and the cost does not seem disproportionate to the advantages to be gained. 356. The New York, New Haven & Hart- ford Railroad Company seeks to have this petition, which was brought under the old law, disapproved in order that a new pe- tition may be brought under the recent statute providing for contribution by street railway companies to the cost of abolishing grade crossings of highway and railroad. The Commonwealth, however, which would alone benefit by street railway contribution, does not appear to join in this view of the case, but endorses the argument of the petitioners, that the pub- lic interests in this instance will be best served by avoiding delays and forwarding the contemplated improvement under this petition. We are of this mind. Hingham, pet'r, 1905, 49. 357. The railroad company contends that it ought not to be required to carry on at the same time the work of separating grades in both East Boston and Newton. In favoring the East Boston and opposing the Newton project, the company urges that the improvement contemplated in East Boston is of great public importance and should be given precedence over that pro- posed in Newton, which, it argues, affects a smaller public and is of much less general CROSSINGS — Con. interest. The further claim is made that Boston is entitled at this time to receive the benefit of the pubHc fund, while New- ton is not, having already enjoyed great advantages from the large expenditures made in abolishing grade crossings upon the main line of the Boston & Albany railroad. The main purpose of the legis- lation of 1902 was to provide for carrying on the work of eliminating perils and annoyances which still threatened the public safety and convenience from the existence of grade crossings. Just what or exactly where expenditures had already been made in eliminating similar perils was of lesser moment. The statute does not contemplate that a corporation shall necessarily be relieved from future outlay on account of the work done in preceding years. Newton, pet'r, 1906, 51. 358. We assume it to be our duty under the law now in force to secure an order of pro- cedure which will be for the general wel- fare, with a view at the same time to a fair distribution of the public money among the different cities, towns and cor- porations, and with due regard to the amount of financial burden imposed upon any one of them. In the application of this rule there miust always be indirectly felt to a greater or less extent the effect of expenditures already made in different communities. lb. 359. The significance of the comparison be- tween conditions in East Boston and in Newton would be greater if these two cases arose in an ordinary way under the general law. In each of these instances the Legis- lature has itself taken action looking to an early separation of grades. Chapter 468, Acts of 1900, in approving the lease of the Boston & Albany railroad to the New York Central & Hudson River Railroad Company, provides for grade crossing changes upon the Grand Junction rail- road. Chapter 163, Acts of 1903, author- ized the construction of a trestle in New- ton, clearly in the contemplation that it would be a temporary affair, warranted by the prospect of early action in abol- ishing the crossings which rendered the structure necessary. lb. 360. No plan for abolishing grade crossings can be devised that will not arouse oppo- sition from private interests that are necessarily invaded. The plan which is 42 CKOSSINGS ELEVATED RAILWAY. CROSSINGS — Con. presented in this instance is one which upon the whole accomplishes the largest possible benefit with the least interference with private property, and is therefore approved. N. Y., N. H. & H. R. .Co., pet'r, Dorchester, 1908, 204. CROSS STREETS. See 907. CROWDED CARS. See 86-88, 930, 931. CULVERTS. See 916, 917. CURB-STONES. Distance of railway tracks from. See 707, 708. CURVES. Operation upon. See Accidents. DAMAGES. 361. Necessary annoyance to a neighbor- hood, incidental to the operation of a railroad, is paid for in advance in land damages to original holders of the land; and those residing in the immediate neigh- borhood of a railroad are not entitled to relief from it, or to any further compensa- tion for it, however great the discomfort may be. Ware v. B. & A. R. Co., 1887, 119. But so far as such annoyance is unnecessary it is illegal. 76. 362. For a statement of the law concerning land damages recoverable against a cor- poration, see 1881, 51. 363. For land damages as a consideration for an agreement to furnish accommodations, see 103. DANGER AT CROSSINGS. See 272-276, 285, 291, 294, 295, 629, 632. DANGER AT STATIONS. See 804, 809, 814-816. DEFECTIVE MAPS. See 653-658, 659. DEFINITIONS. See Words. DELAY. See 148, 149, 151, 496. In building highway bridge. See 297. Train delays. See 943, 944. DELIVERY. Of freight. See 147, 148, 149, 151, 152. DEMURRAGE. See 496. Discussion of. See 1910, 55. Report upon. See 1910, 71. See also 496. DENSITY OF TRAFFIC. See Traffic. See also 924, 925. DEPOSIT. With State treasurer. See Stock and Bonds. DEPOT. See Stations. DIFFERENCE IN RATES. When evidence. See 434. DISCIPLINE. On railroads and railways, discussion. See 1906, 63. See also 367. DISCONTINUANCE. For discontinuance of service and stations, see 21, 61, 70, 81, 91, 93, 112, 116, 119, 120, 122. DISCRIMINATION. In accommodations. See 94. In rates, tickets, etc. See 499-526, 562. In freight facilities. See 157. In express facilities. See 371, 372. In milk transportation. See 768-771, 781, 782, 787. DISTRIBUTION. Of public money for grade crossing elimina- tion. See 344, 345-351, 357, 358. DIVERSION. Of business. See 423. DIVIDENDS. See 93, 568, 577-579, 592, 862. For report to the legislature on the dividend rate of the Boston & Maine Railroad, see 1912, 197. DOUBLE TRACKS (STREET RAILWAY). In highways. See 351, 681, 691, 707, 708, 912. DUTY TO FURNISH ACCOMMODA- TIONS. See 15-126. EARLY TRAINS. See 66, 467, 476, 593. EARNINGS. As governing fares. See 404, 558, 563, 568, 577, 578, 591. ELECTRIC CARS. Should be in charge of two employees. See 881. See also Street Railway; Trains and Cars. ELECTRICITY. As motive power for railroads. See 1893, 24, 102; 1896, 10; 1898, 13; 1903, 8. See also 765. ELECTRIC RAILROAD. Under 1906, 516. See Location and Cort,- struction, "II, VI." ELECTRIC RAILWAY. See Street Railway under various heads. ELEVATED RAILWAY. See Location, I., II., III., IV., and Stations. For discussion of the question of single cars versus trains on the Boston elevated rail- way, see 1899, 95. ELEVATED RAILWAY — EMPLOYEES. 43 ELEVATED RAILWAY — Con. For reports of consulting engineer as to con- struction of the Boston elevated railway, see 1899, 95; 1900, 86; 1901, 83; 1902, 191. For decision on appeal in re route for Wash- ington Street tunnel of the Boston elevated railway, see 1904, 66. For decision as to location of entrance and exit for the Boylston Street station of the Washington Street tunnel, see 1906. 364. In using the words "existing locations" and in naming the streets in which they had been granted, the legislature plainly had these locations in view as the back- bone of the route to be adopted. To make them available it empowered the company to build over intervening ways or lands where necessary to avoid "sharp or unsuitable curves." Boston Elevated Co., pet'r, 1907, 144. 365. The power to locate over private lands in order to secure the best alignment of tracks is one thing, and the power to lo- cate over private lands in order to avoid sharp or unsuitable curves is another thing. The legislature evidently denied the for- mer and granted the latter of these powers. The language of the act and the testimony of members of the committee who drew it both support this conclusion. lb. See also 2076. In re noise on elevated structure. See Hammond Hotels Co. v. B. E. Ry. Co., 1912, 246. EMERGENCY TOOLS. See 6-8. EMINENT DOMAIN. See 615, 671, 742. EMPLOYEES. Hours of. See 1904, 4. See also 367. Injuries to. See 1892, 200. Instruction of. See 1895, 32. Relief societies. See 1883, 28. Supervision of. See Accidents. 366. It was shown that employees some- times taunted passengers who were exer- cising their rights as holders of these passes, and applied disagreeable epithets to Beachmont passengers. Upon this point there is no difference of opinion, and no need of appeal to this Board. Immediate removal would be, as it ought to be, the penalty for any employee who volunteered an insult to the passengers whose comfort he is bound to promote. Prentice ». B., R. B. & L. R. Co., 1884, 153. 367. Recent accidents within and without the state emphasize the paramount im- EMPLOYEES — Con. portance of the enforcement of discipline. Everything depends upon discipline in military estabhshments. It is yet more essential upon railroads and railways. One undivided authority to be obeyed without questioning is indispensable to safety, and any agreement or understand- ing which transfers this authority from employer to employee in matters affecting the safe operation of a railroad is vicious. Though a man be ready to work beyond his physical strength, tempted by the opportunity to earn extra wages, or am- bitious to undertake a service for the safe performance of which greater experience or different qualities are requisite, the responsibility for permitting this must rest with the management, and the right to prevent it surely belongs with the re- sponsibility. 1906, 63. 368. Two suggestions have been submitted for our consideration in connection with recommendations to the companies: first, that the number of brakemen on freight trains should be based upon the number of cars in the train; and second, that freight trains should be classified and the number of brakemen based upon the classification. After due consideration, we find that neither of these suggestions adequately provides for the varying conditions under which freight trains are operated. The classes and volume of freight to be moved, the rating of locomotives, tonnage of trains, grades and curves, trackage and signal protection are some of the reasons which make these suggestions impracti- cable. Report to Legislature, 1909, 270. 369. To arbitrarily base the number of trainmen upon either or both of these sug- gestions would not, in our opinion, tend to secure additional safety and conven- ience in operation of freight trains, but on the other hand would tend to a re- arrangement and consequent disturbance of traffic. A feasible means of securing the safety of the public and employees is to be found, in our opinion, in a strict and rigid enforcement of the existing operating rules of the companies. These rules, in addition to the provisions of law, would secure the safety of the public and of the employees. lb. For an early discussion of the question of brakemen on freight trains, see 1892, 10. See also 148, 149, 366-369, 792, 796, 880, 881, 883-885, 902-905. 44 EMPTY CARS EXPRESS SYSTEM. EMPTY CARS. See 71. ENCROACHMENT. On highways. See 693, 698-701, 707, 708, 722. ENGINEER. Locomotive engineer. See 367, 792, 815. Report of engineer. See 652, 655. Services of engineer. See 668. . O. C. R. Co., 1886, 117. Handy v. O. C. R. Co., 1886, 126. McBride v. Fitohburg R. Co., 1886, 104. See also Sharon v. B. & P. R. Co., 1872, 211. 373. But the assumption of the express busi- ness must be real, not merely nominal; and if, under color of conducting an express business, the corporation in fact grants ex- clusive facilities to any party, the statute is violated thereby. Assuming the bur- den of liability and the general control over the business will constitute the cor- poration an actual, not merely a nominal principal. Lowell V. B. & L. R. Corp., 1870, 101. 374. The refusal of a railroad corporation to sell season or other tickets to a person on account of the business in which he is engaged, or to transport for such person the usual quantity of baggage allowed to a single passenger, because the baggage includes express matter carried for other persons, is a violation of Stat. 1867, 339, § 1 [1906, 463, Part II, § 196]. lb. 375. A corporation which permits parties to carry on an express business on certain portions of its road does not thereby lose its right to conduct on its own account the express business on other portions of the road and to refuse to allow any other parties to carry on the express business on such portions. Smith V. O. C. R. Co., 1886, 117. 376. Where a corporation allowed an express company the privilege of running over the main line and branches, doing business at all points, for the sum of $30,200 a year, it was held not reasonable to demand of a firm desiring to do an express business with four towns that they should extend 1 By the provisions of Acts of 1910, chap. 588 the powers and duties of the Board as to the transportation of explosives were transferred to the district police. 2 Wabash R. Co. v. DUnois, 118 U. S. 657. EXPRESS SYSTEM. 45 EXPRESS SYSTEM — Con. their traffic to all points on the road and its branches and should pay for the privi- lege the sum of $30,200; and the Board recommended the granting of the facilities asked for, upon the payment of a reason- able price for the service performed. Merrill v. B. & L. R. Corp., 1885, 114. See also Smith v. O. C. E,. Co., 1885, 117. 377. The respondent corporation now con- tends that the fundamental position taken by the Board in the case of Merrill and Company e. the Boston & Lowell rail- road is erroneous. It claims that the law does not require the railroad company as a common carrier to become the common carrier of another common carrier. . . . In support of its contention, it relies mainly upon the decision of our Supreme Court in the case of the Old Colony Rail- road Company v. Tripp, 147 Mass. 35. . . . The decision undoubtedly goes far toward supporting the view of the law taken by the respondent corporation. . . The decision of the court, however, can- not be regarded as a direct or conclusive adjudication. ... So long as there is uncertainty the Board is not inclined to reverse its previously adopted interpre- tation of the law. Estabrook, pet'r, 1892, 152. 378. Whether the assumption of the express business by a railroad corporation itself affords the reasonable facilities required by the statute is a question of fact. Lowell u. B. & L. R. Corp., 1870, 101. 379. Whether the assumption of an express business by a railroad corporation is an act ultra vires is not a proper question for the decision of the Board, but should be raised in a court of law. lb. 380. A regulation of a corporation requiring a guarantee of business amounting to $75 per week from applicants for the privilege of doing an express business on the road of the corporation is a reasonable regula- tion. McBride v. Fitchburg R. Co., , 104. 381. For a discussion of the assumption of the express business by railroads, see 1870, 66; 1871, 20; 1872, 22. EXPRESS SYSTEM — Con. Under Statute 1894, 469 [R. L. Ill, §§ SSS, ^41, Z69 (now 1906, 463, Part II, §§ 189, 197, ^46); also R. L 70, § 8]. 382. It is evidently not the established policy to make the express business on railroads free as of right to aU who may wish to engage in it; and such was not the pur- pose of the act of 1894.' Merchants' Co-op. Express Co. 1896, 132. at., pet'ra, 383. The number of express carriers on pas- senger trains is not to be so increased as unduly or unnecessarily to discommode public travel. lb. 384. It is clear that the Legislature did not intend by the act of 1894 to discounte- nance or to do away with the system of local expresses which now exists, and which has long existed, in this Commonwealth. The act proposes to regulate but not to abolish it. lb. 385. A railroad company, though authorized by the act of 1894 to contract, subject to the rights of local expressmen, for the en- tire express service over its lines, is not, by reason of such contract, relieved from the duty of providing the public with suitable express f aoihties . lb. 386. Except in cases where the "other con- siderations" referred to in the statute may as before explained, properly be taken into account, the only question for the Board is that of the predominant public necessity. lb. 387. It appears that the railroad company shares in the profits of the express business. Whatever the mutual relations between the two companies, and however respon- sible each as a common carrier, exclusive express privileges upon a railroad ought not to be granted at the expense of the public convenience. Be the arrangement between the railroad company and the express company what it may, its contin- uance should be made contingent upon reasonable charges, prompt delivery and impartial dealing. Lewellyn, pet'r, o. N. Y., N. H. & H. E. Co., 1902, 92. See also 1896, 133. See Kidder j. Fitchburg R., 165 Mass. 398. 46 EXPRESS SYSTEM EXPRESS, STREET RAILWAY. EXPRESS SYSTEM — Con. 388. This recommendation must be based upon something more than proof of the good character and ability of the applicant and the benefit supposed to arise from competition. lb. 389. Applying this principle to the petition before us, no suflBcient evidence is pre- sented to call for a recommendation. In view of former complaints of the service given by the Adams Express Company, the petition is dismissed without prejudice, and should occasion arise the matter may be again brought to our attention. Boston, Providence & F. R. Co., pet'r, 1911, 190. Baggage Express. 390. We know of no reason why the Boston & Maine Railroad cannot appoint an exclusive agent to carry on a city and sub- urban transfer baggage express. To find for the petitioner would be a. declaration by the Board that a railroad company should employ as its agent for a service of this character any person, firm or cor- poration having the facilities and inclina- tion to do it. The conduct of the business involves the possession of transfer checks and vouchers issued by the railroad, and while we raise no question of the peti- tioner's integrity, yet the railroad surely has a right to determine in whose hands these checks and vouchers should be. Gen. Service Co. c. B. & M. R., 1909, 107. 391. The second question relates to alleged discrimination by reason of the designation by the respondent of certain points or places at which its agent, the Armstrong Transfer Company, renders its service. The test applied to this allegation must be whether this action is discriminatory. In our opinion it is not, and we therefore see nothing in the situation that calls for our recommendation. lb. EXPRESS, STREET RAILWAY.' See Haverhill, Georgetown & Danvers Co., pet'rs, 1896, 173. Under 1903, 202 (amended; now 1907, 402). 392. Several companies seeking to avail themselves of this statute have filed pe- titions asking unrestricted authority to carry freight of every kind coupled with EXPRESS, STREET RAILWAY — Con. the right to refuse to perform this service upon any occasion when in the judgment of the management it is deemed unde- sirable. It is hardly conceivable that the Legislature intended in this way to give companies all the privileges of common carriers with the power to throw off the attendant burdens whenever so disposed, or to give them such abundant opportu- nity for the practice of discrimination. Taunton & Pawtucket St. Ry. Co. et al., pet'rs,1906, 188. 393. The statute provides that the company may engage in the business of common carrier only "in such of the cases, upon such of the parts of its railway and to such an extent," sanctioned by the local board, "as the board of railroad commissioners shall certify that public necessity and convenience require." This plainly con- templates supervision over the character of the freight to be carried and the manner in which it is to be carried. lb. 394. Passenger traflSc upon the ordinary street railway is of paramount importance and freight business more or less inciden- tal. The transportation of certain kinds of freight upon street cars through busy streets at any and all hours of the day would be a serious interference with other uses and enjoyment of public ways. Some articles ought never to be carried on these railways. In our opinion companies should be limited to the transportation of such goods in such manner as shall from time to time be described in schedules filed in this office. lb. 395. One of these conditions is the pro- vision that the sale or lease of the railway shall work an immediate forfeiture of the right to carry freight. It is unsafe to prejudge a question of the future in this way, for a change in the control of a railway need not necessarily be inimical to the. public interests. As it is possible that a sale or lease might be under some circumstances beneficial to all concerned, we cannot agree that it should lead to the discontinuance of an established freight business, the loss of which might be a great inconvenience to people who had been in the habit of relying upon it. Old Colony St. Ry. Co., pet'r, 1907, 186. 1 Caswell tj. Boston Elevated Ry. Co. 190 Mass. 527. A street railway company, although not authorized to engage in the business of carrying freight for others, lawfully may rim cars loaded with coal over its tracks for the purpose of supplying its power house. EXPRESS, STREET RAILWAY — FARES AND FREIGHTS. 47 EXPRESS, STREET RAILWAY — Con. 396. In Springfield and Agawam the com- pany is authorized to carry any kind of freight, while in Chicopee and in West Springfield it is limited to the transpor- tation of baggage and express matter. We believe it is better to restrict the authority now given to such business as can be conducted over the entire railway and postpone consideration of the ques- tion of public necessity and convenience as far as it relates to the broader right to carry freight in Springfield and Agawam. This course does not bar favorable action whenever hereafter desirable upon any local grant of privileges more extensive than those embraced in the order now issued. Springfield Co., pet'r, 1907, 188. 397. In the opinion of the Board the original authority over the use of tracks in public streets is properly left with boards of aldermen and with selectmen subject to such state supervision as will protect interests which are of more than local concern. No legislation is therefore recom- mended with respect to the transporta- tion of coal and supplies upon street railways, sufficient power to protect the public interests being now vested in the proper boards. Report to Legislature, 1908, 156. See also Board of Railroad Commissionera. Under 1907, 4OS. 398. Chapter 402, of the Acts of 1907, under which this proceeding is brought, was enacted for the purpose of protecting the general public interests against local in- difference or prejudice. In this instance the city council of Quincy has denied the street railway company the right to' do an express and freight business upon a line which passes for a short distance over the state highway in a part of that city that is not occupied for either residential or business purposes. ... It is plain that the right to carry baggage and freight over this line would be of decided benefit to the people of other cities and towns. The company is ready to submit to all proper regulations and restrictions and it is difficult to conceive of a more extreme case of local indifference to the general interests of neighboring communities. Old Colony St. Ry. Co., pet'r, 1908, 167. For cases decided on appeal under 1907, 402, see Old Colony Co., pet'r, 1908, 166, 167, 169. Springfield & Eastern Co., pet'r, 1909, 221, 223. EXPRESS SYSTEM — Con. B. & N. Co., pet'r, 1911, 195, 196, 197, 198. Haverhill & Amesbury Co., pet'r, 1911, 203. Old Colony Co., pet'r, 19U, 211. Wor. Merch. Asso. , pet'r (Worcester Consoli- dated St. Ry.), 1912, 210. EXPRESS TRAINS. See 44, 63, 67, 68, 70. EXTENSION. See 613-616, 622, 638, 674, 699, 753-759. Of transfer limits. See 587, 588. Of franchise (street railway). See 753-759. FACILITIES. See Accommodations; Express System. FACING POINTS. Discussion. See 1888, 38. FACTORIES. Freight tracks near. See 293. FAILURE TO AGREE. See 648, 649, 658. FAIR DISTRIBUTION. See 344, 349, 353, 358. FALSE VALUE. See 845, 847, 852. FARES AND FREIGHTS. For baggage rates, see Baggage. For express rates, see Express System. For rates of transportation of milk, see Milk Trans- portation. See also 144^158, 231. I. Excessive and Unreasonable Rates. II. Discrimination. III. Long and Short Haul. IV. Tickets, Mode or Payment, etc. V. Steamboat Rates. VI. Street Railway Fares. I. Excessive and Unreasonable Rates. General Principles. 399. The acceptance of a charter binds a corporation to furnish transportation at reasonable rates. 1881, 31. Brookline 1). B. & A. R. Co., 1885, 134. Hankey u. B. & A. R. Co., 1886, 119. Whitney v. Milford & Woonsocket R. Co., 1887, 35. 400. A promise by a corporation or its ofii- cers to reduce a rate when a contract with a connecting line ceases to exist is binding in spirit when it is discovered that the contract does not affect the rates in ques- tion. Hurlbut Paper Co. 1886, 31. Housatonic R. Co., 48 FARES AND FREIGHTS. PARES AND FREIGHTS — Con. 401a. Railroad companies are public cor- porations, and the State possesses the power, without expressly reserving it, to regulate rates of transportation. 1S81, 31; 188S, 65. Stevens Linen Works s. N. Y. & N. E. R. Co., 1S83, 32. Anon. B. Houaatonic R. Co., 1886, 38. 4016. The Board has no power to fix passen- ger rates on steam railroads. Medford v. B. & L. R. Corp., 1884, 149. 401c. The Board has no power to fix rates of fare or of freight. Dalton V. B. & L. R. Corp., 188B, 128. Brookline ». B. & A. R. Co., 1885, 134. Winthrop s. B., R. B. & Lynn R. Co., 1885, 139. 402. Nor has the general court delegated to the Board of Railroad Commissioners, or other public officers, any general power to alter or fix rates. The authority of the Board in this respect is in fact limited to the fixing of rates for the carriage of milk by the can, such as it deems to be fairly proportionate with the rates fixed by the railroad company for the transportation of milk under contract or in large quantities. (Pub. Stats., chap. 112, §§ 192-4) [R. L. Ill, §§ 246-248, now 1906, 463, Part II, §§ 202-204]. By a special act (Stats, of 1885, chap. 338) , the Board was empowered to fix rates on the Housatonic Railroad, that company having failed to comply with its recommendation to reduce them. That statute and the order of the Board under it, so far as they related to rates to points beyond the State line, the main thing in controversy, were held to be in conflict with the Constitution of the United States, which gives to Congress the exclusive power to regulate "com- merce between the several States," and to be invalid. Commonwealth v. Ho^Csa- tonic Railroad Co., I4S Mass. S64. 1893, 14. 403. It is apparent, from the figures showing how large a proportion of passenger rates come from sale of single tickets, that the introduction of a maximum rate of two cents per mile without the withdrawal of the cheaper fares woixld mean a very radi- cal reduction in revenue. Legislation in this Commonwealth has never proceeded upon the notion that everything that can be forced from the railroads, no matter what the consequence may be, is neces- sarily so much gained for the public. In - our opinion the issue of 500-mile books at two cents a mile furnishes an altogether FARES AND FREIGHTS — Con. more satisfactory means of bringing about a reasonable decrease in fares without in- terference with the prosperity of the com- panies. 1901, 52. 404. It is at times necessary and proper to make demands upon companies which in- volve a possible loss of revenue, in order to secure what is due to the public. This should be done, however, only after care- ful inquiry and study of consequences. Any policy which jeopardizes the pros- perity of a company through reckless interference with the earning power is as unfortunate for the public at large as for the stockholders, and it is to be borne in mind that a trifling reduction in rates means a very substantial decrease in aggre- gate receipts. 1902, 32. 405. The distinction between the work of this Board and that of a board which makes rates and revises tariffs has always been clearly drawn; and the wisdom of the policy adopted in this State seems to have been shown in the comparison of results obtained. Brockton citizens n. N. Y., N. H. & H. R. Co., 1902, 83. 406. The Board does not attempt to divide with the directors responsibility for rail- road management. It is not its function to correct, if it could, errors of judgment in the determination of purely business questions. Such a task is impracticable without the knowledge and opportunity that comes only from the entire control of affairs. The fixing of rates by public authority belongs with public ownership. 407. It has been the policy of this State, in connection with the private ownership of railroads, to establish a supervision that shall leave the business management to the owners, unhampered, as long as it is conducted in a reasonable manner. To the extent that the restrictive power of the Board over issues of stock and bonds, and in matters affecting the public safety, is a departure from this policy, there are obvious reasons for the different rule. Ih. 408. The Legislature has declared its power to revise and alter railroad tariffs. [Re- vised Laws, 111, §225, now 1906, 463, Part II, § 181.] It has never, however, attempted to use this power save under a FAKES AND FREIGHTS. 49 FARES AND FREIGHTS — Con. few exceptional statutes, like those relat- ing to workingmen's trains, which were enacted to accomplish more, but have actually accomplished less, than what has been usually secured through the recom- mendatory power of this Board. lb. 409. It is often said that a freight rate should be governed by "what the traffic will bear." If this were equivalent to saying that a company might charge all it could force a shipper to pay without driving him out of business, the suggestion would be indefensible. The phrase has a better meaning, however, — one which the pres- ent case may well illustrate. The petition- ers have occasion from time to time to ship car-loads of boxboards. In a business like this, where the margin of profit is so small, any substantial increase in freight rate is ruinous. The railroad company, recog- nizing this, had established a low rate upon boxboards, and the petitioners were thus enabled to carry on business. The short haul undoubtedly yielded only a small return to the company, and yet one which it properly considered worth securing as a part of its general revenue. We find no reason for any change in such policy. Hathaway et al. n. N. Y., N. H. & H. R. Ck)., 1902, 88. See also MoGovern o. N. Y., N. H. & H. R. Co., 1906, 74. 410. All sums exacted from the comnaunity for transportation, whether of persons or of property, constitute an exaction in the nature of a tax, which is none the less a tax because it is necessary or is exacted in return for valuable services rendered; and the reduction of this tax to the lowest pos- sible amount paid for the greatest possible service rendered, always observing the precepts of good faith and the conditions of a sound railroad system, is the object to be attained in relation to the railroads of the Commonwealth. 1871, 38. 5ee aho 1870, 39, 78. 411. When a community is industrially in an elastic condition, ready at once to respond to any remission of burdens or improved appliances, a reduction of the transporta- tion tax, within certain limits, does not necessarily involve any loss of net profits to the corporation making it; and the ob- ject of the community should be, not to reduce the gross amount it pays, but so to regulate and dispose the burden as to en- able production, by receiving the stimulus FARES AND FREIGHTS — Con. of lower rates, to expand and to pay a larger gross amount. 1871, 44-56; 1872, 50, 77, 155, 220. See aim 1873, 54. 412. But it is of importance to the commu- nity as well as to the body of stockholders immediately interested that every railroad should be amply remunerative, and no policy should be adopted which would tend either to decrease unduly the reason- able returns on capital already invested in railroad enterprises or to discourage fur- ther investments. 1872, 153. 413. Every railroad company has a right to a fair and reasonable profit for all services which it is called upon to perform; and the Board will not recommend any com- pany to forego those profits and to do business at a loss; even though the con- cession asked for is a small one and would not materially affect the receipts of the road. Freetown d. N. Bedford & Taunton R. Co., 1871, 115. But see Southampton v. N. Y., N. H. & H. R. Co., 1905, 20 — Accom7nodaiix)7is, I, 50. 414. Where a joint through rate from an- other State is unreasonable, the whole burden of a reduction to a reasonable figure should not be put upon the corpora- tion operating that part of the route within this State, and it is bound only to give reasonable rates over its own tracks, even though excessive rates on a connect- ing road may make the joint rate too high. Anon. V. Housatonic R. Co., 1886, 38. 415. On the general principle that the per- manent interests of a railroad corporation are inseparable from the interests of the community it serves, and that the interests of the interior districts, whose wants sup- port the greater number of Massachusetts railroads, require a cheap supply of all raw material, and especially of power, it is expedient that the corporations of this State should, with a view to securing their own ultimate interests by stimulating an increased production, furnish the cheapest possible carriage of coal, so far as it repre- sents, power, and of articles such as coal, with no view to immediate profit and at rates amounting in fact to carriage at cost. 1870, 12, 38; 1871, 56; 1872, 152, 156; 1873, 49; 1877, 74. See also Dalton i. B. & L. R. Corp., 1885, 128. Bel Air MTg Co. v. B. & A. R. Co., 1887, 79. 50 FAKES AND FREIGHTS. PARES AND FREIGHTS — Con. 416. In deciding upon the expediency of a general, as distinguished from a particular, reduction of coal rates, it becomes material to consider how far the prosperity of a dis- trict depends on its manufactures, and how far the success of the manufactures of the district depends on cheap rates of freight for coal, and, therefore, what proportion of the staple industries of the district are those in which the consumption of coal is a lead- ing item of expense. 1877, 68. 417. Where a general reduction of freights and of fares has been determined to be practicable and expedient for the best in- terests of a community, the reduction, to be effective and to cause a decided in- dustrial impetus, must be heavy and con- centrated, not small and uniform, and should strongly favor certain commodities in use along the line of a road, and by so doing stimulate development. 1872, 155, 178, 221; 1873, 54; 1877, 75. 418. It was not considered a proper time, in the absence of facts calling for a special recommendation, to recommend further reductions or to recommend reductions upon additional articles when a railroad had at a recent date made important re- ductions throughout its tariff, and par- ticularly upon the leading articles of raw material and of manufactures, so that carriage of those commodities was fur- nished at the lowest possible rates above cost, and when at the same time it appeared, from the financial difiBoulties brought upon many railroads through com- petition and consequent reduction of rates, and from other reasons, that the reduction of the rates had gone on as rapidly as was prudent. 1877, 76. See aUo Pittsfield !>. B. & A. R. Co., 1879, 375; 1883, 131; 1886, 143. 419. The Board will not recommend to a company a reduction of the fares between two points, when the fares in question, computed on the basis of the number of railroad miles travelled, are not unreason- able, even though, computed on the basis of the direct distance between the two points, the fares may be excessive. Perry ». E. R. Co., 1880, 217. 420. For a discussion of the regulation of fares and freights by law, see 1870, 58; 1872, 170; 1873, 55; 1893, 14; 1901, 48; 1902, 83, 88. FARES AND FREIGHTS — Con. 421. For discussion of questions concerning suburban fares, see 1895, 127, 130; 1899, 26; 1900, 50; 1902, 82, 90. 422. For rates of fare as limited by the con- ditions of a grant of location, see Loca- tion, V. What Rates are Reasonable. ■ 423. Upon a, complaint that certain freight rates are excessive, it must be made to appear that the rates in question are pal- pably out of proportion to the services rendered, constituting an apparent exac- tion through the enjojTnent of a monopoly, or suggesting that they originate in a desire, on the part of the corporation im- posing them, not to do business, or to direct business into some other channel, rather than in an expectation of realizing undue profits from them. It is not suffi- cient that the rates in question are higher than rates approved by the Board, and that they are higher than good policy on the part of the corporation would require. Re Coal Rates in Berkshire Co., 1877, 63. Pittsfield V. B. & A. R. Co., 1879, 376. 424. The Board will not recommend the re- duction of a rate where it is not so clearly out of proportion to the service rendered as to make it proper to follow up the recommendation by calling upon the gen- eral court for special legislation. Pittsfield V. B. & A. R. Co., 1883, 131. Dalton !). B. & L. R. Corp., 1885, 128. Brookline v. B. & A. R. Co., 1885, 134. Worthy Paper Co. v. B. & A. R. Co., 1886, 126. Bel Air M'f'g Co. v. B. & A. R. Co., 1887, 79. 425. Especially where the rates in contro- versy have been established by advancing rates unreasonably low. Winthrop i. B., R. B. & Lynn R. Co., 1885, 139. 426. It is not sufficient, in order to justify a formal recommendation by the Board that a certain rate of fare be reduced, to show that to reduce the fare would be the part of a wise management; a clear case of wrong and of palpable overcharge must appear. Medford v. B. & L. R. Corp., 1884, 149. Draper v. Worcester & Shrewsbury R. Co., 1884, 131. See aho Perry v. E. R. Co., 1880, 217. 427. Where under a special act the Board receives authority to fix certain rates, it is bound to exercise a wider discretion than usual, and to fix such a rate as seems to it. FARES AND FREIGHTS. 51 FARES AND FREIGHTS — Con. acting as a board of directors, wise for the company to adopt. Bel Air M'f'g Co. v. B. & A. R. Co., 1887, 79. 428. Where the Board is asked to recom- mend to a corporation a reduction of its freight tariff in respect to a particular commodity, it is necessary for the peti- tioner to prove at least one of three propo- sitions: — (a) That the charge by the corporation re- spondent in regard to the commodity in question is excessive as compared with the charge made by other companies; (6) That the charge is excessive as compared with the charges of the same corporation for other commodities of like bulk and weight; or (c) That exceptional reasons exist, which would allow the corporation to transport the commodity in question with a fair profit at a rate unusually low. Freetown v. N. Bedford & Taunton R. Co., 1871, 115. 429. What is a reasonable rate depends largely on the particular facts of each case. Whitney v. Milford & Woonsocket R. Co., 1887, 35. 430. Where a universal rule is found among railroads to adopt a lower rate of fare for one class of travellers, it may be assumed to be reasonable. Medford v. B. & M. Railroad, 1886, 122. 431. A general practice among other rail- roads in regard to rates is not conclusive in favor of a corporation or against its customers, and it has greater force when cited against a corporation. Worthy Paper Co. v. B. & A. R. Co., 1886, 126. 432. The admissions of the president of a corporation that » rate is unreasonable are conclusive to show that the rate is unreasonable. Hiu-lbut Paper Co. b. Housatonic R. Co., 1886, 31. 433. Rates of freight which do not support a charge of discrimination are yet admis- sible in evidence on the question of rea- sonableness. Winalow t>. B. & A. R. Co., 1886, 103. 434. Differences in rates which are not for- bidden by P. S. 112, § 190 [R. L. Ill, § 243, now 1906, 463, Part II, § 199], be- cause the rates are not made from the same original point of departure, or for FARES AND FREIGHTS — Con. some other reason, may nevertheless be evidence tending to prove that the rates in controversy are unreasonable. Pittafield v. B. & A. R. Co., 1885, 143. 435. The establishment of a minimum charge for a short distance, not depending upon mileage, is reasonable. Worthy Paper Co. v. B. & A. R. Co., 1886, 126. 436. No law requires that freight charges should always be in strict proportion to distance. 1873, 42, 56. Anon. V. Housatonic R. Co., 1886, 38. 437. And the fixing of a single rate for a cluster of adjacent towns, so that, for example, an excess paid on north-bound freight is regained on south-bound freight, is not necessarily improper. lb. 438. The general rule is that wholesale trans- portation is cheaper, and the burden of proof is on the party proposing to show that a given case is an exception to the rule. Otis Co. V. B. & A. R. Co,, 1882, 99. 439. A charge against a company that cer- tain rates are excessive, as compared with the rates for other traffic on the same road, is not necessarily maintained by showing that the rate per ton per mile upon short local traffic is several times greater than the rate per ton per mile on through traffic. 1877, 72. 440. On the principle that wholesale trans- actions furnish a reasonable ground for lower rates, it is unreasonable to charge for cargoes or large quantities of a com- modity as high a rate as for single car- loads, especially when other roads in like circumstances make lower rates for cargoes or large quantities than for single car- loads. Otis Co. V. B. & A. E. Co., 1881, 43, 209. Clapp V. Hanover Br. R. Co., 1881, 214. 441. The phrase "cargo rates" means not rates for the whole contents of a vessel, but rates for some large quantity, usually fixed at from fifty to one hundred tons; but it is left to each corporation to fix the exact point at which the lower rates shall come into force. Otis Co. c. B. & A. R. Co., 1882, 99. ,\\' 52 FARES AND FREIGHTS. PARES AND FREIGHTS — Con. 442. A charge of the same rate for single car- loads as for cargoes or large quantities is simply evidence tending to prove that the latter rates are unreasonable; and if it appears that no single oar-load shipnients are made, and, therefore, that no rate for them exists, the Board cannot, in the absence of other evidence, determine that the rates for cargoes or large quantities are unreasonable. Hemming v. B. & A. R. Co., 1884, 156. 443. The practice of rating a calf over three months old at the conventional weight of three thousand pounds, while a calf not three months old is rated at four hundred pounds, and of charging for a colt the same rate as for a full-grown horse, was held unreasonable; for all young animals there should be rates graded according to actual weight. Re Transportation of Young Animals, 1886, 49, 116. 444. The charge by a corporation of "what the trafl&c will bear," without regard to the cost of operating the road, and the reasonableness of the rate, is improper, and is an indictable offence. 1881, 34. Hankey v. B. & A. R. Co., 1886, 119. See also Hathaway et al. v. N. Y., N. H. R. Co., 1902, 88. H. & 445. In determining whether a freight rate is unreasonable, the fact that the freight is received upon the cars not at a terminus, but at a freight-yard, and, therefore, at greater inconvenience to the railroad, is evidence of the reasonableness of the rate. Worthy Paper Co. v. B. & A. R. Co., 1886, 126. 446. It was held no ground for complaint against a company that, while the general through-freight business was done at rates ruinously low and wholly unremunerative, particular local rates at points enjoying the .benefit of the low through rates were kept at a point fully remunerative, and relatively, if not absolutely, high. Be Coal Rates in Berkshire Co., 1877, 63. 447. In such a case the only question is whether the particular local rate is un- reasonable. Pittsfield I). B. & A. R. Co., 1879, 375. 448. The practice of giving half-rates to young persons going to and from any place for education, including not only attendants upon schools, but also persons PARES AND FREIGHTS — Con. seeking mechanical and other practical instruction, is a reasonable and proper one, and should not be discontinued. Medford v. B. & M. R. Co., 1886, 49, 122. 449. The general rule of our railroad mana- gers has been to give half rates to young persons going to and from any place for education, including not only attendants upon schools, but also persons seeking mechanical and other practical instruc- tion. This is in accord with the ordinary railroad policy, which looks to the in- crease of business caused by such a reduc- tion of fare. But the practice, as we suppose, is founded on a broader principle, ^the poKcy of favoring education, and thus developing the resources of the State. 76. 450. Upon a policy settled for more than two centuries, that of making education accessible to all, reduced fares for school children might well have been required by statute, if railroad managers had not forestalled legislative action by estab- lishing such rates of their own free will. lb. 451. It is by no means a necessary conclu- sion that the Interstate Commerce Com- mission will hold that special school rates are illegal in interstate transportation; nor, if the Interstate Commission should hold that such rates are illegal, does it seem to this Board that any serious com- plication would arise out of the grant of such rates to scholars for transportation within our state, and the denial thereof to scholars who are obliged to cross state lines. Topsfield, Salisbury et al. is. B. & M. R. Co., 1889, 246, 247. 452. When a general law is asked for, re- ducing the wholesale rates of fare at which season and package tickets for short dis- tances shall be sold, and making them approximately uniform with the rates for longer distances, the questions thereupon raised are: (1) whether the amounts gen- erally charged tor season tickets over short distances are in themselves excessive; (2) whether these amounts are excessive as compared with those charged for longer distances. Hopkinson et al., pet'rs, 1872, 206. 453. In order to justify a recommendation that a rate of fare be reduced, it must be shown either that the rate is unreasonably high, or that there is something in the case FAKES AND FREIGHTS. 53 FARES AND FREIGHTS — Con. taking it out of the general rule; as, for example, that the town of the petitioners is in the suburbs of Boston, and is entitled to low suburban rates. Westborough n. B. & A. R. Co., 1887, 93. See also 1882, 32. 454. Where a rate equivalent to fifty cents a week had been declared by a committee of the Legislature to be the lowest reason- able basis of season-ticket rates for an experimental system of cheap trains, the Board refused to adjudge a rate equivalent to seventy-two cents a week for season tickets on ordinary trains to be in itself an excessive charge. Hopkinson el al., pet'rs, 1872, 206. 455. The charge for season tickets for short distances will not be deemed excessive as compared with the charge for longer dis- tances merely because the whole charge for the greater distance is but slightly larger or is not proportionately increased; for, in the case of regular and permanent travel, the cost to the ra,ilroad is practi- cally independent of the distance run, and a charge approaching to uniformity for all passengers is more just and equitable. Ih. 456. Services must sometimes be rendered at rates which are not in themselves remuner- ative, because the franchise is accepted as a whole. But where the whole franchise is unremunerative, the amount of traflBo being small, fares may be allowed which under other circumstances would be un- reasonable. ' Whitney v. Milford & Woonaocket R. Co., 1887, 83. 457. An excessive rate upon a profitable traffic at certain points was held not to be justified by the fact that the business of the remainder of the road, and of the road as a whole, was unremunerative. Otia Co. T>. B. & A. R. Co., 1881, 209. 458. The fact that a corporation received large profits, and that a general and moderate reduction of fares would be advisable, was held to afford no ground for claiming a considerable and exceptional reduction, for which no other good reason was shown, upon one branch or one por- tion of the road. Brookline «. B. & A. R. Co., 1885, 134. 459. The fact that the cost of transportation over a certain portion of a road is com- paratively much less than over other por- FARES AND FREIGHTS — Con. tions is not conclusive to show that the rate of fare on the portion in question should be reduced. Ih. 460. The general rule is that fares should be proportional to distance, and that the rate per mile should not increase with the distance. Ih. 461. In general it is reasonable to determine the fare for like service by the lengths of the route travelled; but it was held not unreasonable, in the case of two stations distant only half a mile, for a corporation, for convenience or for any other reason, in some instances to charge the same fare to both places, in others to exact a pro- portionately higher fare to the farther point. Boyd V. B. & M. Railroad, 1882, 102. See also Weston n. Fitchburg R. Co., 1882, 125. 462. It was held not unreasonable, in the case of two stations distant only half a mile, while charging the same fare for single tickets to each place, to charge for a package of tickets the full proportional fare to the farther point. ' > Ih. 463o. A local fare of ten cents from one way- station to another, the distance being one mile or less, and the stations not being flag-stations, was held excessive. Prentice n. B., R. B. & Lynn R. Co., 1884, 153. 4636. It is clear, however, that the fare for a single ride on one of the main lines of the Boston & Maine system between large centers, like Lynn and Salem, should be at a rate of less than three and a fraction cents per mile. Salem v. B. & M. R., 1912, 118. 464. Fares need not be strictly proportional to distance travelled; and it is reasonable to fix lower rates of fare for densely- settled towns within the suburban dis- trict of a metropolis. Weston 0. Fitchburg R. Co., 1882, 125. 465. The principle on which low suburban rates are favored was held not to apply in the case of residents of a country town who went daily to work in a smaller place. Westborough o. B. & A. R. Co., 1887, 93. 466. Twelve miles from Boston is the limit for such fares, and, so long as a corpora- tion does not give a suburban rate beyond 54 FAEES AND FREIGHTS. FARES AND FREIGHTS — Con. this limit, no community beyond it can claim such a rate. Natick V. B. & A. R. Co., 1886, 111. 467. The earliest legislation in this state concerning cheap morning and evening trains is found in chapter 348, Acts of 1872, the provisions of which have been continued in force, and now appear as section 231, chapter 111 of the Revised Laws [1906, 463, Part II, § 187]. In 1900 a statute was passed providing for work- ingmen's trains upon every railroad having a terminus in Boston. Under this statute (now 1906, 463, Part II, § 188), several petitions were presented to the Board. At the hearings upon them it was at once manifest that no satisfactory results could be obtained in attempting to administer a law so imperfectly framed. These two sections of the Revised Laws stand for legislation upon two independent sub- jects. There is a plain distinction be- tween workingmen's cars or trains, re- stricted in use to a limited class of wage earners, and cheap morning and evening trains, open to everybody wishing to travel at certain hours. 1903,4. 468. Class discriminations in the use of trains, with rates so low as to prevent a reasonable return to stockholders, upon the theory that such concession is due to a particular portion of the travelling pub- lic, are contrary to the spirit of our insti- tutions. This would be true, whether the companies were called upon to bear the burden, or whether the rest of the travel- ling public were to bear it through the payment of higher fares to compensate the companies for what they lose in the lower. In the one case it would be an unjust dis- crimination, and in the other an unlawful interference with private property. lb. 469. Whatever may be in the thought of those who uphold such service elsewhere, we have in this commonwealth no con- ditions to warrant a plea that the public health or morals call for transportation for any class at a cost inconsistent with fair profit to the carrier. Aside from any legal question, however, compulsory legis- lation of this kind is contrary to the inde- pendent spirit abroad in the land. lb. For suburban rates, see also II., infra. FARES AND FREIGHTS — Con. 470. For a case in which the discontinuance of six months' and yearly season tickets, and the raising of rates for quarterly tickets were held to be not unreasonable, see Boutwell V. B.{& M. Railroad, 18*8, 151. 471. For rates held, upon an examination of the particular facts, to be excessive in themselves, see Dalton V. B. & L. R. Corp., 1886, 128. Hurlburt Paper Co. v. Housatonic R. Co. 1886, 31. 472. For a petition for lower rates on fresh fish (decided upon its facts), see Atwood 11. O. C. R. Co., 1884, 158. 473. For decision on a petition asking for similar rates of fare on different branches of a road operating between the same two points, see Giaves'n. E. R. Co., 1880, 66. 474. For a petition concerning rates of freight on cordwood, settled by agreement of parties, at the instance of the Board, see Wareham s. Cape Cod R. Co., 1871, 113. 475. For discussions of the system of work- ingmen's trains, see 1873, 37; 1874, 22; 1875, 25; 1876, 52; 1877, 37; 1878, 33; 1880, 27. 476. For a decision recommending a work- ingmen's train to and from a city other than Boston, see West Springfield v. B. & A. B. Co., 1888, 149. Comparison with Other Bates. 477. In comparing rates of freight in force on a given road with those in force on other roads, or on other portions of the same road, to ascertain whether the rates in question were excessive as compared with other rates, it was held improper to com- pare rates from an important terminus with rates from one way station to an- other. Otis Co. I. B. & A. R. Co., 1881, 209. Hankey i. B. & A. R. Co., 1886, 119. Bel Air M'f'g Co. .. B. & A. R. Co., 1887, 79. 478. Or to compare rates on a main line with rates on a branch line. Otis Co. V. B. & A. B. Co., 1881, 209. Hankey i. B. & A. R. Co., 1886, 119. Bel Air M'f'g Co. o. B. & A. R. Co., 1887, 79. 479. Or to compare rates inland from a sea- port town, where an additional profit accrues to the railroad as stevedore, with FARES AND FREIGHTS. 55 FARES AND FREIGHTS — Con. rates between points where the handling is done by other parties. Otis Co. V. B. & A. R. Co., 1881, 209. Hankey v. B. & A. R. Co., 1886, 119. Bel Air M'f'g Co. i. B. & A. R. Co., 1887, 79. 480. Or to compare long-haul or through rates with short-haul or local rates. Worthy Paper Co. v. B. & A. R. Co., 1886, 126. Hankey 8. B. & A. R. Co., 1886, 119. 481. Or to compare a through rate (taking the pro rata mileage) over a road twenty- six miles long, forming one link of a line extending through several states, with a charge for carriage over the twenty-six miles only, for the purpose of determining whether the latter charge was reasonable. Dalton B. B. & L. R. Corp., 1885, 128. 482. Or to compare rates upon roads making an exclusive business of carrying the com- modity in question with rates on roads a part only of whose business it is to dis- tribute it. 1877, 70. 483. Or to take as a basis of comparison rates established under the influence of a ruinous competition. Bel Air M'f'g Co. ». B. & A. R. Co., 1887, 79. 484. Or rates established under a special system of low suburban fares. 1882, 32. Brookline v. B. & A. R. Co., 1885, 134. 485. But it is proper to compare rates at competitive points with rates at non-com- petitive points, provided the competitive rates are not made for a temporary pur- pose only, but are of long standing and are given by several railroads, for rates so maintained must be assumed to be reason- ably remunerative. Otis Co. u. B. & A. R. Co., 1881, 209. Hankey D. B. & A. R. Co., 1886, 119. See also Pittsfield i. B. & A. R. Co., 1883, 131. 486. Where, under a special act, the Board receives authority to fix certain rates, it is bound to exercise a wider discretion than usual, and to fix such a rate as seems to it, acting as a board of directors, wise for the company to adopt; and rates so fixed can- not be compared with rates in contro- versy, in order to show that the latter are so unreasonable as to call for a recommen- dation from the Board. Bel Air M'f'g Co. s. B. & A. R. Co., 1887, 79. FARES AND FREIGHTS — Con. 487. For the purpose of proving that rates on a particular road are already very low, it is not proper to take for comparison a low rate, fixed under the system of aver- ages mentioned in Anon. ji. Housatonic R. Co., 1886, 38, which is counterbalanced by a high rate in the opposite direction. 1886, 47. 488. For comparisons made of fares in con- troversy (1) with other rates on the same road, see Richmond v. O. C. R. Co., 1884, 125. Winthrop v. B., R. B. & Lynn R. Co., 1885, 139. ■ Boutwell V. B. & M. Railroad, 1888, 161. (2) With rates on other roads, see Medford t>. B. & L. R. Corp., 1884, 149. Prentice d. B., R. B. & Lynn R. Co., 1884, 153. Winthrop ti. B., R. B. & Lynn R. Co., 1885, 139. Natick V. B. & A. R. Co., 1886, 111. 489. For comparisons made of freight rates in controversy (1) with other rates on the same road, see Pittafield v. B. & A. R. Co., 1886, 143. Hankey v. B. & A. R. Co., 1886, 119. (2) With rates on other roads, see Pittsfield V. B. & A. R. Co., 1883, 131. Medway o. N. Y. & N. E. R. Co., 1884, 127. Dalton V. B. & L. R. Corp., 1885, 128. Hankey c. B. & A. R. Co., 1886, 119. Hurlburt Paper Co. v. Housatonic R. Co., 1886, 31. Worthy Paper Co. u. B. & A. R. Co., 1886, 126. Bel Air M'f'g Co. „. B. & A. R. Co., 1887, 79. Cost of Service. See also Accommodations, I. 490. In determining what is a reasonable rate for services rendered, it is not proper to take the road as existing and as main- tained, with track and terminal equip- ments, salaries and all other expenses, and to regard as the total cost of the new serv- ice merely the increased local expense necessary to add to its business the serv- ice in question; the cost of that service must include its fair share of the interest on investments and of the general expenses. Dalton I. B. & L. R. Corp., 1885, 130. Brookline v. B. & A. R. Co., 1885, 136. 491. The question, what is the cost of mov- ing a ton of freight one mile, is one impos- sible to answer generally and accurately; and, although the cost of carrying a par- ticular kind of freight in a given volume over a given distance on a specified road can be ascertained with a very great de- %' FARES AND FREIGHTS. FARES AND FREIGHTS — Con. gree of accuracy, the result will apply to no other road, unless one can be found operating under precisely similar circum- stances. 1872, 167; 1875, 35. 492. For a general reference to the mode of determining cost of service, see also 1872, 163, 167; 1873, 42, 55. Dalton ». B. & L. R. Corp., 1885, 130. Justification. 493. The charge of an unreasonable rate from a certain point to the town of the petitioners cannot be justified on the ground that it is intended to prevent a supply of a commodity from that point, and thus to shut off the competition of a connecting road. Medway t>. N. Y. & N. E. R. Co., 1884, 127. Bel Air M'f'g Co. i. B. & A. R. Co., 1887, 79. 494. Or that it is intended to secure a longer haul over its own road. Hankey s. B. & A. R. Co., 1886, 119. 495. It is no justification for an unreason- able rate that there is, on the part of some receivers of freight, great and injurious delay in unloading the cars. Hurlburt Paper Co. J. Houaatonic R. Co., 1886, 31. 496. The proper plan is to enforce a charge for demurrage against the offending parties. lb. 497. Rates which are reasonable in them- selves, and are reasonably remunerative, cannot be set aside for higher rates when- ever a monopoly of the railroad service exempts a particular point from compe- tition. Otis Co. !). B. & A. R. Co., Hankey v. B. & A. R. Co., 1881, 43, 209. 1886, 119. 498. Nor is a corporation justified in re- fusing rates reasonable in themselves for fear that the giving of such rates will divert business from other parts of its road to a rival road. lb. II. DiaCBIMINATION. General Principles. 499. The violation by a company of Stat. 1867, 339, § 1 [R. L. Ill, § 240, now 1906, 463, Part II, § 196], will not be made the subject of a recommendation by the Board ; the proper remedy is to enforce the statu- tory penalty prescribed. Sharon v. B. & P. R. Co., 1872, 211. FARES AND FREIGHTS — Con. 500. Statute 1869, 252 [R. L. 70], relating to discriminations, was intended to apply to cases where one common carrier tenders freight to another common carrier for transportation, and to such cases only. Butman v. B. & A. R. Co., 1881, 198. 501. Under Stat. 1869, 252 [R. L. 70], the intervention of the Board is not required or permitted, and any person believing himself aggrieved may bring a civil action. lb. 502. A provision of law limiting to sixty days the time of bringing an action for illegal discrimination tends to impede the usefulness of the statute, and the time allowed should be longer. 503. In proving that a discrimination has been made under Stat. 1874, 372, § 138 [1906, 463, Part II, § 196], it is not neces- sary to show that a demand for the special privilege has been made by others than the privileged party and refused; the giving of unequal rates or facilities to different parties in like circumstances is in itself a discrimination and an offence. lb. 1881, 39. 504. A complaint charging that a discrimina^ tion has been made which would be un- lawful if made at the date of the complaint, but was lawful at the time it was made, is not well founded. Pittsfield s. B. & A. R. Co., 188S, 131. 505. The law as to discrimination applies to a small road as well as to the greatest. Clapp I. Hanover Br. R. Co., 1881, 42, 214. 506. By the common law and apart from statute a railroad corporation has a right to make only a reasonable charge; and the same common law principle forbids discrimination, since to charge higher rates to one person than to another in like case is unreasonable. Whatever exceptions existed as to this rule at common law have been removed by legislation. 1881, 39. 507. It was not held an unlawful discrimina- tion for a corporation, in the case of two stations distant only half a mile, in some instances to charge the same fare to both places, in others to exact a proportionally higher fare to the farther point. Boyd V. B. & M. Railroad, 1882, 102. See oho Weaton v. Fitohburg R. Co., 1882, 125. FARES AND FREIGHTS. 57 FARES AND FREIGHTS — Con. 508. It is not unreasonable to discriminate in favor of residents and habitual cus- tomers by issuing commutation tickets at a reduced rate. Draper V. Worcester & Shrewsbury R. Co., 1884, 131. 509. It was not held unreasonable for a corporation to issue to the officers and attendants of a hospital adjacent to the road, and to no others, commutation tickets having the added convenience of coupons. lb. 510. Though mileage, and possibly character of travel, played some part in the estab- lishment of these fares, obviously neither factor can account for the differences in charges. This apparently haphazard as- sortment of rates is best explained as the outcome of the consolidation of what were formerly independent and competing rail- roads. Although the present management is not responsible for creating these rates, it is responsible for maintaining them, and we recommend that there be a readjust- ment of these fares, to remove a dis- crimination between patrons to whom practically the same service is given. Shaughnesey u. N. Y., N. H. 1907, 25. ; H. R. Co., 511. The present inequalities of rate arise largely from the practice of certain com- panies in establishing rates of fare many years before consolidation or lease, and public policy demands that these rates should, in many instances, be readjusted. This will doubtless result in raising certain rates and lowering others, but a complete fabric of rates in operation will tend to the same results as have been secured by the principle of the act of 1908,' which has received the general acquiescence of the travelling public. Report of 1911, 55. 512. Although, in general, wholesale trans- actions furnish a reasonable ground for lower rates, yet where parties are engaged in similar business on the same line, and all on a scale calling for carload shipments, they are entitled to equal terms and fa- cilities. Butman v. B. & A. R. Co., 1881, 198. 513. The principle that wholesale transac- tions furnish reasonable ground for lower rates does not apply to the case of like amounts hauled from time to time, but FARES AND FREIGHTS — Con. hauled more frequently for one customer than for another. When the quantity carried at one time is the same, the rate should be the same for all persons. Clapp n. Hanover B. R. Co., 1881, 42, 214. 514. It is not a discrimination to charge a lower rate for a carload than for a par- tially loaded car. lb. 515. In fixing the charge upon any particular trafiic, a corporation is entitled to take into consideration any circumstances of a ■ general or local character, such as the dis- tinction between terminal and local busi- ness; but the special rules must be laid down for particular circumstances and not for particular individuals. Butman v. B. & A. R. Co., 1881, 198. 516. Whether a charge of $1.50 a ton to all dealers receiving quantities of coal amount- ing in the course of a year to less than 10,700 tons is, as compared with a charge of ninety cents a ton to all dealers re- ceiving in one year 10,700 tons or more, a violation of 1882, 225 [R. L. Ill, § 245, now 1906, 463, Part II, § 201], forbidding any "undue or unreasonable preference or advantage" — gucsre. Stevens Linen Works r. N. Y. & N. E. R. Co., 1883, 32. 517. Proof of a casual overcharge or under- charge, as by a failure to weigh freight properly, does not sustain a charge of dis- crimination and does not present a case for the intervention of the Board; the remedy should be sought in the courts. Atwood 71. O. C. R. Co., 1884, 159. 518. If it appears that a station-master ha- bitually practises under-weighing, so that shippers at that station have an advan- tage over those at other stations, a prac- tical discrimination exists, though the corporation would not be liable in a pen- alty unless it sanctioned the practice. lb. 519. The practice of "absorbing the arbi- trary" is in itself beneficial and not in- jurious, but to give the benefit of it to one customer and not to others is an unlawful discrimination. Butman v. B. & A. R. Co., 1881, 40, 198. 520. Where, in "absorbing the arbitrary," the repayments do not correspond exactly with the local arbitrary rates to each billing 1 1908, 649, "An Act relative to the issuing of mileage and commutation tickets by railroad corporations." 58 FARES AND FEEIGHTS. PARES AND FREIGHTS — Con. point, but are made according to a fixed average rate, a discrimination takes place to the injury of dealers at points reached at the lower arbitrary rates. lb. 521. Where a Massachusetts corporation, terminating at a point on the Hudson River, contracted with certain coal com- panies, in combination west of the Hudson, to carry all coal of these companies de- livered by rail at the Hudson terminus and ordered by the consumer through a single general agent of the companies at that terminus, and where the corporation accordingly offered, at such low rates as to drive out competition, all coal of those companies so delivered and so ordered, but no other coal, the corporation was held not guilty of a discrimination under 1874, 372, § 138 [R.L. 111, § 240,now 1906, 463, Part II, § 196]; the facts being such that the rate established could be con- strued, not as a special one in favor of either of the coal companies, but as a through rate made with miners and car- riers, the miners and carriers designating their own agents at the terminus for carry- ing it out, and, as such, falling within the rule permitting through rates to be reason- ably lower than local rates. Pittsfield V. B. &. A. K. Co., 1879, 375; 1883, 131; 1885, 143. Hemming n. B. & A. R. Co., 1881, 156. 522. Even if, in the case above, the facts had been such that a discrimination existed, the Board would not take the responsi- bility of making a recommendation if it would result in putting a stop to a bene- ficial competition, in raising the price of coal throughout a community, and in bringing about an even stronger monopoly. lb. 523. But the Board stated that it would recommend the abolition of the arrange- ment if it appeared that the commodity was not furnished promptly or was of poor quality. Pittsfield V. B. & A. R. Co., 1883, 131. Justification. 524. No motive will justify a discrimination ; a discrimination, therefore, is not lawful even though made on the ground that it compensates the customer for some dis- advantage, natural or artificial, of his position. 1881, 31. Butman v. B. & A. R. Co., 1881, 40, 198. FARES AKD FREIGHTS — Con. 525o. Or that it protects the railroad from the competition of another. Butman v. B. & A. R. Co., 1881, 198. 5256. Or that a business will be created thereby and their gains increased. lb. Clapp I. Hanover Br. R. Co., 1881, 42, 214. 526. The fact that a receiver of freight sells to manufacturers is no justification for a rebate to him which amounts to a viola- tion of Stat. 1882, 225 [R. L. Ill, § 245, now 1906, 463, Part II, § 201], forbidding preferences. Hurlbut Paper Co. v. Housatonio R. Co., 1886, 31. III. Long and Short Hattl. 527. Public Statutes 112, § 190 [R. L. Ill, § 243, now 1906, 463, Part II, § 199], for- bidding a higher freight charge for a less distance from the same point of departure in the same direction, applies to the car- riage of freight taken up outside the state and brought within it. Stevens Linen Works v. N. Y. & N. E. R. Co., 1883, 32. Anon. V. Housatonio R. Co., 1886, 38, 528. Public Statutes 112, § 190 [R. L. Ill, § 243, now 1906, 463, Part II, § 199] , as ap- plying to the carriage of freight taken up outside the state and brought within it, is, under the authority of the decision in Peik V. C. & N. W. R. Co., 94 U. S. 164, not in conflict with the Constitution of the United States. lb. But see also 1887, 34. 529. Public Statutes 112, § 190 [1906, 463, Part II, 199], does not apply when the rates in question are made from points on different branches of a road over those branches to the point at which they meet. Pittsfield V. B. & A. R. Co., 1886, 143. 530. If special freight rates, from one termi- nus to a given point, made by a corpo- ration to certain parties, are made on account of the large quantities of the com- modity carried for the parties in question, and the same rates on equal quantities are open to all other parties at the same point and at all points on the road nearer to the terminus, the rates do not constitute a violation of 1874, 372, §§ 140, 141 [R. L. Ill, §§ 243, 244, now 1906, 463, Part 11, §§ 199, 200]. Be Coal Rates in Berkshire Co., 1877, 66. FARES AND FEEIGHTS. 59 FARES AND FREIGHTS — Con. 531. But if the special rates are made simply on account of competition at the point in question, and are denied to other parties receiving equal quantities at points nearer to the terminus, the rates in question are in violation of the statute. lb. 532. "Where the tariff rate to each of two towns, one distant forty-three and one- half miles, the other forty-eight miles from the terminus, was $1.50 per ton, but the corporation was in the habit of carrying , under conditions the same in all respects, to the latter town at the rate of $1.20 per ton, while charging to the former town the full tariff rate of $1.50 per ton, there was held to be a violation of 1874, 372, §§ 140, 141 [1906, 463, Part II, §§ 199, 200]. Ih. 533. A charge of $1.50 per ton for the trans- portation of coal in cargo quantities by a route of forty-three miles, when at the same time a charge of ninety cents a ton was made for the transportation of the same article in cargo quantities over a route of fifty-nine miles, was held to be a violation of P. S. 112, | 190 [1906, 463, Part II, § 199]. Stevens Linen Works v. N. Y. & N. E. R. Co., 1883, 32. 534. Nor was it any justification for such an excess that the whole amount transported in one year or one season in the former case did not exceed 3,000 tons, but in the latter case exceeded 10,700 tons. lb. 535. The fact that a receiver of freight sells to a manufacturer is no justification for a rebate to him which amounts to a violation of P. S. 112, I 190 [1906, 463, Part II, § 199], relating to lower rates for longer dis- tances. Hurlburt Paper Co. v. Housatonic R. Co., 1886, 31. 536. For a complaint, decided on its facts, charging a violation of P. S. 112, | 190 [1906, 463, Part II, § 199], see lb. 537. For a general discussion of the long and short haul rule, see 1871, 18; 1885, 48; 1888, 67. IV. Tickets, Mode of Payment, Etc. 538. A railroad company, as a common car- rier, has a legal right to demand in advance the payment of all charges on carriage of FARES AND FREIGHTS — Con. merchandise; but the exercise of such a right is contrary to all usage, and is liable to great abuse, and when it is characterized by wantonness or vindictiveness the Board will intervene. Thayer et al., Murray et ah v. Boston, Hartf. & Erie R. Co., 1874, 111. 639. A railroad corporation, as a common carrier, has a legal right to refuse to receive goods for carriage unless the payment for carriage is made in advance; but the ex- ercise of this right, in such a way as to ruin or seriously cripple the business of a consignee, is unjustifiable, if resorted to merely because the consignee has threat- ened to refuse payment and to resort to vexatious litigation, or if resorted to by order of other than the highest authority in the government of the road, or without the fullest consideration and the amplest notice, or before all other proper means have been exhausted; and in such a case the Board will intervene. Soudder o. B. & A. E. Co., 1875, 71. 540. When facilities are given for procuring tickets before entering the cars, a regu- lation requiring passengers to purchase tickets before entering is a reasonable one. 1870, 63. 541. A petition alleging that a company, in the case of fares paid in cars, collected a cash fare only to the end of its own road, and asking a recommendation that cash fares be accepted for connecting roads as well as for the road on which the fare was paid, was not granted. Howe 0. B. & A. E. Co., 1884, 152. 542. An agreement made by a company with purchasers of house lots, to give the head of each family, who builds and occupies a house worth $1,500, a free pass for five years, transferable to purchasers and ten- ants, was held practically not fulfilled by giving in its stead 180 coupons for use dur- ing three months, additional coupons to be given in case the first are exhausted be- fore the end of the three months; and even though the agreement was thereby performed in law, the corporation was recommended in fairness to adhere strictly to the terms of the agreement. Prentice s. B., E. B. & Lynn E. Co., 1884, 153. 543. A petition that package tickets be sold at all times at the station of the petitioners, situated a short distance from Boston, as well as in Boston, was not granted when it appeared that the station agent was also 60 FARES AND FREIGHTS. PARES AND FREIGHTS — Con. employed as flagman at the adjacent cross- ing, and that the income of the station, being from f 2 to $3 daily, did not justify the employment of a second agent. 544. Where hundred ride tickets were sold at a greatly reduced rate, and the corpora- tion, for its own convenience and protec- tion, limited the holders of these tickets to a continuous passage without a stop-over privilege, the Board, upon a view of all the facts, held that there was no ground for complaint. Carleton t. B. & M. Railroad, 1888, 159. 545. Where a mileage ticket provides that a coupon shall be detached "for each mUe travelled," the holders of such tickets are entitled to have only such coupons de- tached as will cover the distance actually travelled by them, and the distance trav- elled should not be computed according to an incorrect and arbitrary mileage table. Withington s. B. & M. Hailraad, 1888, 162.1 546. Where a mileage ticket provides that a coupon shall be detached "for each mile travelled in accordance with mileage table" of a certain date, the public has a right to assume that the table referred to is a, statement of actual distances, and that it is not a table in which the distances are arbitrarily increased, and notwith- standing the above provision coupons should be detached only for actual dis- tance travelled. lb. For a report of the Board to the general court on the so-called "rubber mileage" complaint, see the report of 1912, 107. 547. For a decision upon the reasonableness of a regulation requiring that all tickets issued by connecting corporations, whether limited or unlimited, shall be taken up by the conductor when the passenger arrives on the respondent's road, and that ex- change checks shall be given in place thereof, see Clapp 0. B. & A. R. Co., 1888, 164. 548. The petitioners present a single definite request; they desire a five-cent fare upon a steam railroad for a distance of six and one-half miles. It is admitted that no such low rate exists to-day elsewhere in this or other states. The limited season ticket is, of course, excluded in this state- PARES AND FREIGHTS — Con. ment. In effect, the claim of the petition- ers is that we ought to recommend that steam railroads should be required by law to enter into competition with street rail- ways in the matter of fares. We must de- cline to do this. In view of the difference between the steam railroad and the street railway in the cost of construction and maintenance, competition between them in short distance travel must as yet be of an experimental nature. As such, it is a question for the business management of the companies. Rosliudale citizens t). N. Y., N. H. Co., 1902, 90. : H. R. For baggage privileges on stop-over tickets, see Baggage. For discrimination in ticket privileges, see III, ante. For discussion of interchangeable mileage tickets, see 1894, 26. v. Steamboat Rates. Under 1903, 173 (.now 1906, 463, Part I, §7). 549. As the distance between headlands on the mainland and on Nantucket consider- ably exceeds two marine leagues, the stat- ute [R. L. 1, § 2] excludes from the domain upon the seacoast over which the State exercises sovereignty a portion of the waters which lie between Nantucket and the mainland, such waters belonging to the high or open sea. Trade between New Bedford and Nantucket may suggest do- mestic rather than foreign commerce, even though the voyage be for a part of the way upon waters outside the territory of Mas- sachusetts. But the decisions of the Su- preme Court of the United States establish the principle thet State jurisdiction over commerce is confined to cases where not only the termini but the entire route cov- ered by the shipment is within the state territory.^ The law therefore is definitely settled with regard both to land and water transportation . Nantucket and Dukes County v. New Bed- ford, Martlia's Vineyard & Nantucket Steamboat Co., 1905, 14. 550. The direct steamship route to Nan- tucket and that ordinarily, if not neces- sarily, adopted lies for a part of the way upon the high sea, beyond the jurisdiction of Massachusetts as defined by the legis- lature, and where the national authority is 1 For decision as to conatitutionality of interchaageable mileage tickets, see 160 Mass. 62. 2 Nanley v. Kansas City Southern Ry. Co., 187 U. S. 617. Pacific Coast S.S. Co. o. Railroad Commissioners, 9 Sawyer, 255. FARES AND FREIGHTS. 61 FARES AND FREIGHTS — Con. exclusive. It is clear therefore that the Board cannot supervise steamship rates or service between New Bedford or Wood's Hole and Nantucket. This construction of chapter 173, Acts of 1903, [1906, 463, Part I, § 7], assumes it to be valid and applies its provisions according to the rule established by legislative act and judicial decision. lb. 551. The authority of the Board over the running of steamboats on the Lord's day rests upon the police power of the State over waters within its territorial limits, and any conditions in such licenses which attempt to govern the service outside the state limits are significant only as the basis of an understanding upon the viola- tion of which the license may be revoked. lb. 552. Although Buzzard's Bay and Vineyard Sound do connect with and form a part of the highways used in commerce between the States and with foreign countries, and are therefore subject to all acts of Congress which regulate such commerce and protect navigation, these waters are nevertheless a part of the State domain, and subject to the laws of Massachusetts in so far as such laws do not interfere with the actual exer- cise of the national authority. lb. 553. The fare between Vineyard Haven and Wood's Hole is sixty cents and that be- tween Vineyard Haven and New Bedford one dollar. It is claimed that this is an unjust discrimination, and the claim would be true were mileage the deciding factor in fixing these rates. Vineyard Haven v. N. B., M. V. & N. Steam- boat Co., 1906, 76, 77. 554. But a mileage basis is not customarily adopted under such conditions and in our opinion ought not to be adopted, as neither the value nor the cost of the service can be equitably apportioned according to the distance covered in reaching the different points upon the mainland at which these steamboats touch. lb. 555. We believe, however, that as a measure which would benefit patrons and at the same time increase the volume of business, the company might well issue some form of commutation ticket making the fare be- FARES AND FREIGHTS — Con. tween the Vineyard and Wood's Hole fifty instead of sixty cents, and that these tick- ets should be sold in such number as to place them within reach of people who cannot afford to make a large investment of capital in the purchase. lb. See also Accommodations, IV. VI. Street Railway Fares. 556. For general discussion of street railway fares, see 1905, Ixvi-ixviii. 557. Street railway companies running long routes into the suburbs of a city or town are justified in fixing a point beyond which an increase or double fare shall be paid. What that distance is, and what the in- crease of fare shall be, depends upon the circumstances of each particular case. Cobb V. Union St. E. Co. of New Bedford, 1888, 160. 558. A petition under Stat. 1871, 381, § 34 [R. L. 112, § 73, now 1906, 463, Part III, § 100], for a reduction of street railway fares, will not be granted when it appears that, even without a recjuction of fares, the corporation in question fails to earn ten per cent, upon the cost of construc- tion and equipment. Welby n. Metrop. R. Co. et al., 1882, 122. See also 1883, 124. 559. A petition for a reduction of street rail- way fares to five cents, on the ground that the charter of the corporation in question restricted it to five-cent fares, was not granted when it appeared that, though the original charter forbade higher fares than five cents, yet by statute the charter was subsequently amended so as to contain no such limitation, and the corporation was made subject to general laws giving to the directors power to establish rates of fare, subject only to general restrictions not applicable to the case in question.^ lb. 560. Statute 1871, 381, § 35 [P. S. 113, § 45, repealed by 1898, 578, § 26^], forbidding the receiving of fares higher than those heretofore established by agreement, made as a condition of location or otherwise, between a corporation and the mayor and aldermen of any city, unless by its consent, does not apply where a location is granted 1 See Keefe n. Lexington & Boston St. Ry. Co., 185 Mass. 183. 2 See report of the special committee on the relations between cities and towns and street railway companies, 1898, page 54. 62 FAKES AND FREIGHTS. PARES AND FREIGHTS — Con. by a board of aldermen on a certain con- dition, and the corporation accepts the location, but refuses to submit to the con- dition, and thereby fails to become a party to the "agreement" required by the statute. lb. 561. A municipal corporation has no right to annex to the grant of a location a con- dition that rates of fare within certain territory shall not exceed a given limit. lb. 562. A street railway regulation that double fare shall be collected from passengers entering the oars before they reach the Boston terminus of the railway, and riding beyond that terminus, is a reasonable regu- lation, the terminus not being shown to be in an improper place and the regulation being enforced impartially. Hayden t. Lynn & Boston St. R. Co., 1885, 127. 563. That reduction in cost of travel in- creases the amount of travel and that cheap fares build up outlying suburbs adjacent to a thriving city and so add to- street railway traffic is an argument that has force under favorable conditions, and one that a progressive street railway management should recognize. It woiild be imprudent, however, to reduce fares upon this theory where the population in its present character and in its prospec- tive grpwth is clearly insufficient to furnish the additional traffic required to make good a loss from reduction in single fares. Stoughton selectmen v. Old Colony St. Ry. Co., 1902, 73. See also Spencer v. Wor. Consolidated St. Ry. Co., 1902, 179. 564. In view of the fact that on said portion of the railway there are four manufactur- ing villages, with more or less travel be- tween them, the Board is of the opinion that the company should make some con- cession in the fare now charged, by the sale of package tickets at a lower rate per ride, or otherwise, to the regular patrons of the railway, and so recommends. Williamsburg citizens v. Northampton St. Ry., 1903, 75. See also North Westport v. Dartmouth and Weatport St. Ry. Co., 1903, 65. 565. We are of the opinion that there is no such hardship in requiring those who travel daily to purchase a thirty-five ride ticket as would warrant the introduction of a new form of seven-ride ticket to fur- PARES AND FREIGHTS — Con. ther complicate a system of fares already too complex. Holbrook d. Old Colony St. Ry. Co., 1903, 82. See also Abington n. O. C. St. Ry. Co., 1911, 91. 566(1. The five-cent fare was established on street railways when in the main these were local enterprises. It was a fare con- venient for collection, one which tended to promote the general welfare by en- couraging a wider distribution of homes in thickly settled communities, and one which served the public on the whole acceptably. ... As a consequence of the consolidation of railways, of concessions made by the companies, and of action taken by the Boaid, the limits of the five- cent fare have been from time to time largely extended. The Board has rec- ommended this fare generally within town boundaries, and in some cases between the centres of the larger municipalities and the centres of adjoining towns, an arrange- ment which happily works to the advan- tage of those who travel daily to and from their work. In brief, for one reason and another, the five-cent fare has been made to apply to travel for widely differing dis- tances, in order to meet a great variety of local conditions. Wakefield o. Boston & Northern St. Ry. Co., 1905, 22. 5665. However desiiable a single five-cent fare within the limits of a municipality may be, the question reserved for the Board's consideration, in all cases of this character must be the reasonableness of the rate. Among other factors to be taken into consideration, and by no means the least important, in making any adjudica- tion with respect to such reasonableness, is the return upon capital invested and the necessity of permitting the carrier to make adequate provision for the maintenance of the plant. Taunton r>. T. & P. St. Ry., 1912, 133. 567. With the taking on of an interurban service, companies have introduced a so- called through fare, sub-divided into five- cent fares collected at fixed points. These fare limits are not always co-extensive with the local fare limits, a fact which has given rise to the suggestion of discrimination against through passengers. But it is to be borne in mind that the interurban business is often the development of the long dis-. tance patronage, without a corresponding development of the mote profitable short distance riding, and that if comparison of FARES AND FREIGHTS. 63 FARES AND FREIGHTS — Con. fares is to be made, it should be between the through fare and the average local fare. lb. See also Rockland v. Old Colony St. Ry. Co., 1902, 74. Dedham ». Old Colony St. Ry. Co., 1904, 97. Wakefield et al. v. B. & N. St. Ry. Co., 1905, 24. Bedford et al. v. Lexington & Boston St. Rj'. Co., 1905, 5. 568. An examination of the figures presented and of the returns of this and of other com- panies and an investigation of street rail- way conditions without as well as within this commonwealth conclusively shows that no company can carry passengers nine miles for five cents over an interurban railway constructed, maintained and oper- ated like this, and at the same time out of earnings pay anything in the way of a fair return upon investment. Melrose v. B. & N. St. Ry. Co., 1907, 75. 569. Of course it must be understood that it is practically impossible, in view of local conditions throughout the common- wealth, to determine the reasonableness of rates for street railway fares exclusively upon the proposition of mileage. We ap- preciate, however, that the issue presented is a close one, and a substantial increase in travel and the consequent increase in revenue might lead us to an opposite conclusion. Abington v. O. C. St. Ry. Co., 1911, 91. 570. The Haverhill and Southern New Hampshire Street Railway Company se- cured from the board of aldermen of Haverhill a location in that city, offering as an inducement therefor a five-cent fare within the city limits. This arrangement as to fare was made one of the conditions of the grant of location. In the recent case of Keefe against the Lexington and Boston Street Railway Company^ it is decided that a condition in a street railway location which purports to establish fares is not legally binding upon the company, as boards of aldermen and selectmen under existing statutes have no authority to regulate fares upon street railways. Haverhill v. Haverhill & So. N. H. St. Ey., 1905, 9. FARES AND FREIGHTS — Con. 571. In establishing the- new fare limits the company has carried out a sort of mileage basis for rates, claiming that between three and four miles is as far as it ought to carry a passenger for five cents. This theory overthrows the commonly recog- nized rule of fixing fare limits with ref- erence to points where patrons regularly take or leave the cars in large numbers. We doubt the wisdom of the change, as we believe that the interests of the public, and in the end those of the company, will be better served by adherence to the theory that fare limits should be governed by the location of communities rather than by exact distances. lb. 572. Boards of aldermen and selectmen in granting street railway locations naturally inquire into the purposes of those who seek to obtain them. If at such a time, instead of relying upon its right to leave fares to future determination as to what may prove to be reasonable charges, a company chooses to pledge itself to specific rates, its failure to realize at once the expected profit from the undertaking would hardly justify the establishment of a higher rate, in violation of the assurances given. Re- lying upon these assurances not only may the public authorities have been induced to grant rights in the streets in the expecta- tion of relieving congested city and town centres by a better distribution of homes, but individuals, in many instances in con- siderable numbers, may have been led to change their places of residence and mode of life. lb. 573. Although the location for this line was granted to the petitioner as an independent domestic corporation, it was to all intents and purposes a location sought and chiefly valuable as a terminal link of a large system outside the state. When the loca- tion was granted it was well understood that in this state a five-cent fare is ordi- narily the maximum charge within the limits of a city or town. Moreover, the five-cent fare was made an express con- 1 Under St. 1898, 678, § 13 [now 1906, 463, Part III, § 7] the board of aldermen of a city or the selectmen of a town, in granting a location to a street railway company, cannot impose a condition regulating and restricting the fares to be charged. A street railway company by accepting a location granted by the board of aldermen of a city or the selectmen of a town does not make a contract with the granting board or municipality to fulfil a condition of location illegally imposed — Kcefe v. Lexington & Boston St. Ry. Co., 185 Mass. 183. See also Cunningham et al., selectmen of Wellealey, i. Boston & Worcester St. Ry. Co. — 188 Mass. 250 ; and West- wood 1). Dedham & Franklin St. Ry. Co., 209 Mass. 213, where the court held that a five-cent fare provision in a local grant which became operative less than one month before 1898, 578 went into effect was binding and vahd and that its validity was not affected by the last-named statute. 64 FARES AND FREIGHTS. PARES AND FREIGHTS — Con. dition of this grant of location and there- fore, although no contract was created, all persons who might succeed those then in control of the railway were duly warned of the understanding. lb. 1907, 72. 574. The business upon a particular line is entitled to consideration, for there is a limit to the amount which one part of a com- munity should contribute to the accom- modation of another; but the receipts and expenditures of different lines are to be considered in connection with those of the railway as a whole, and with due regard to the fact that profitable lines must do their share in supporting some unprofitable lines which in the larger public interest every company may be compelled to maintain. Grafton ». Wor. Cons. St. Ry. Co., 1906, 81. See also North Brookfield v. W., B. & S. St. Ry., 1906, 88. 575. The returns of the company for a pe- riod of years show a steady public demand for transportation, and the population of the territory served has been well main- tained. If the six-cent unit rate of fare had been in force for the financial year ending September 30, 1908, the same number of passengers would have in- creased the net divisible income of the company from about eighteen thousand to fifty thousand dollars. It is doubtless true that there will be some diminution in the number of passenger fares collected, by reason of an increased rate ; but in view of the fact that much of the riding is not subject to fluctuation, considered in con- nection with the other facts in the case, we are convinced that the net return from the increased fare now in operation would be so substantial as to render the unit fare of six cents unreasonable and exces- sive. Northampton v. N. St. Ry. Co., 1910, 87. See also Northampton St. Ry. Co., pet'r, 1911, 90. 576. There are two ways in which to deal with a company which fails to render to the public a proper service in respect to either accommodations or fares: one, through the exercise of the power to re- voke locations, a power to be used in the first instance by looal boards; the other, through the exercise of the authority of this Board in such matters. The first is a drastic remedy, but the right remedy when promoters of a railway have been guilty of FARES AND FREIGHTS — Con. bad faith in securing a location or in at- tempting to hold one in defiance of the obligations which attach to it. Marion, Mattapoisett and Wareham v. New Bedford & Onset St. Ry. Co., 1905, 11. 577. Usually the arrangement between a town board and a company in respect to fares has been only an incident of the location, and if the fares agreed upon have proved too low to permit the payment of dividends it has demonstrated lack of fore- sight rather than the practice of fraud on the part of the company. In such cases it is clearly better for all concerned that some equitable rearrangement of fares take place than that a company lose its prop- erty and the people their facilities for travel. lb. 578. The jurisdiction of this Board is clearly defined . The question can only be whether or not an existing fare is reasonable, but the promise of a company to maintain cer- tain fares has more or less bearing upon the reasonableness of a subsequent charge. Full dividends are not ordinarily expected in the first days of any enterprise. There is a period of experiment which precedes that of the "going concern." When a company before opening its railway pledges itself to specific fares it may rightly be asked to experiment with such fares a reasonable length of time, even though stockholders must meanwhile go without dividends for a longer period than would have been necessary had no pledges been given. It is a risk which the stockholders fairly take in authorizing these pledges. lb. 579. To the extent that changes in or addi- tions to highways are made necessary in order to acconmiodate a street railway, it is clearly right that the company should pay the cost. To compel a, company, however, to meet the whole expense of a new highway which is to be built for the use of the general public as well as that of the railway is a questionable policy. To say nothing of the consequent unequal distribution of advantages and disadvan- tages between different towns, it is to be borne in mind that the travelling public must contribute in fares to dividends on the capital invested in this added cost of the railway. lb. See also Maplewood & Danvers St. Ry. Co, pet'r. Location, V. FARES AND FREIGHTS. 65 FARES AND FREIGHTS — Con. 580. We cannot agree that a private con- tract between companies as to distribution of revenue should operate as a barrier to prevent the Board from taking such action as it deems equitable in reference to dis- proportionate or unreasonable fares. North Westport citizens v. Dartmouth & West- port St. Ry. Co., 1903, 65. See also Stoughton u. Blue Hill Co., 1909, 112. School Fares. Under R. L. 112, § 72^ [now 1906, 463, Part III, § 99 {see also 1906, 479; 1908, 630; 1910, 667)]. 581. The complainants contend that section 10, chapter 500, Acts of 1897, which ex- empts the Boston Elevated Railway Com- pany from any reduction in its five-cent fare for a period of twenty-five years upon any of the lines ' ' owned, leased or operated by it," does not relieve it from the general law, for the reason that this general law had imposed upon the railway leased a "burden, duty or obligation" within the later language of the same section.^ To our minds, however, the Legislature in- tended to deal exhaustively with the ques- tion of fares in the earlier part of the section, and in the later provision as to "other burden, duty or obligation" had in contemplation matters other than fares.' West Roxbury v. Boston Elevated, 1905, 7. See also Everett Aldermen v. L. & B. R. Co., 1900, 227. See Pen-in v. B. & W. St. Ry. Co., 1907, 80. See also Returns. Commutation Checks. Under P. S. 113, § 47 [omitted from Revised Laws as special.] 582. The cars of the Lynn & Boston Rail- road Company on which it is urged that these commutation checks should be issued do not enter East Boston, and the route over which the passengers claiming such checks seek to enter East Boston is one which regularly involves not only a change from one railroad to another, but a pay- ment of separate fares upon each as in- dependent systems. In the opinion of the Board the provisions of the statute do not apply to such a case as is here pre- sented. Brickley et al. v. L. & B. R., 1901, 283. FARES AND FREIGHTS — Con. 583. The Board has no authority to suggest that the Boston Elevated relinquish a part of the fare to which it is entitled by law, and it cannot rightfully ask the Bos- ton & Northern to render services with- out compensation; nor has it any juris- diction over extensions of railway lines or changes in the control or ownership of such lines. Under these circumstances no action is open upon this complaint which will afford the complainants the facilities which they are so much interested in se- curing. Maiden, pet'r, 1908, 85. See also Revere selectmen, pet'rs, 1911, 82. See also Northampton v. Northampton & Holyoke St. Ry. Go's, 1902, 178. 584. A recommendation that passengers should be carried between all parts of Lynn and Revere Beach for a single five- cent fare would be unreasonable. At the hearing, however, it was shown that dur- ing certain early morning and late after- noon hours so large a number of regular patrons have occasion to travel between Park avenue and West Lynn as to be en- titled to a special consideration. The Board therefore recommends that the company meet this situation by some form of ticket at a reduced rate. Revere v. B. & N. St. Ry., 1911, 83. 585. We believe, however, in view of the close commercial and social relations ex- isting between the towns of HoUiston and South Framingham, that some con- cession should be made with respect to the workingman's ticket, so-called. Without undertaking to arbitrarily fix the price, we recommend a reduction. Framingham v. M.&V. Co., 1911, 89. Transfers. 586. The Board is well aware of the practical objections to the transfer system, and more especially to the free-transfer system, in street railway traflSc. Experience has proved that the system cannot be admin- istered, particularly in city streets where the volume of travel is considerable, with- out exposing a, railway company to a, more or less serious loss of legitimate in- 1 See Com. o. Interstate Cons. St. Ry. Co., 187 Mass. 486. 2 See 1900, 197, § 4. 8 For an opinion that a provision in a location grant for half fares between Clinton and the State Normal School at Worcester was enforcible, but that it could not apply to students attending the Holy Cross College and the Worcester Business Institute, see Clinton ». Worcester Cons. St. Ry. 199 Mass. 279. See also Commonwealth v. Conn. Valley St. Ry. 196 Mass. 309. Ruling as to what constitutes pubUc and private school pupils, and excluding students of a commercial school, the average age of the pupils being sixteen to nine- teen and the eldest fifty years of age. 66 FARES AND FREIGHTS. FARES AND FREIGHTS — Con. come by reason of the unscrupulousness of some passengers and the dishonesty of some employees.^ Cambridge Aldermen v. West End St. Ry. Co., 1894, 186. 587. A five-cent fare without transfer priv- ilege has been established in certain in- stances between the centres of communi- ties. The extension of this rate to every part of each city and town so connected, by use of transfer tickets, is to be en- couraged wherever the amount of traflSo will justify it; as, for example, in the case of a populous city which is the business centre for small suburban towns. Rockland Selectmen v. Old Colony St. Ry. Co., 1902, 74. 588. Upon the argument that the extension of the five-cent fare would simply be an accommodation to persons a short dis- tance from a line who then had to walk or drive to the centre, the Board said : Even if this be admitted, and it be conceded that the effect upon through rates would be more annoying than destructive of revenue, a recommendation by the Board that this privilege be granted would establish a precedent for similar action in other cases where the extension of the five-cent fare in this way would mean a serious reduction in receipts. lb. 589. Transfer checks were never designed to give stop-over privileges but were issued solely for the purpose of enabling pas- sengers to make a single journey between two points as nearly continuous as possible for one fare. Roxbury et al. c. Boston Elevated, 1907, 70. 590. The valid use of free transfers is not only a distinct convenience to the travel- ling public, but is of service to the com- panies themselves in permitting a rout- ing of cars and a consequent decrease of oar mileage which makes for economy in operation. But with a free transfer priv- ilege there is an attendant abuse from which the companies, and in the ultimate analysis the whole travelling public, suffer. To reason that free transfers should be withdrawn because improperly used is unsound; and yet their continued and increased misuse must finally present a situation where companies may rightfully FARES AND FREIGHTS — Con. demand some restriction in their number or functions. 1909, 63. 591. That the public can only be well served when the company which serves it is able to realize a reasonable return upon the capital honestly invested, is too plain a truth to need discussion. Lord et al. v. Newton & Boston St. Ry. Co., 1905, 17. 592. A voluntary association, the Boston and Suburban Electric Company, holds as a stockholder the controlling interest in the Newton and Boston and the Newton companies and in other properties. What those who are thus associated do with the dividends which they receive from their shares in railway stocks or what value they place upon such shares is of no more importance to those who use these rail- ways and pay the fares which support them than if the controlling stockholder were an individual. The Board deals only with the capitalization of the railway companies, their methods of constructing, maintaining and operating their railways, and the corporate receipts and expendi- tures. That a, common ownership and management makes the several Newton railways to all intents and purposes parts of one local system is a fact to be given due weight. lb. 593. Accommodation in car service is para- mount to the question of fares, and we recommend that the company provide a more frequent service through the busy hours of travel in the morning and in the evening. lb. See also Boston Common Council, pet'r, 1906. See also Arlington v. B. E. Ry. Co., 1908, 81; Cambridge d. B. E. Ry. Co., 1908, 81; E. Boston V. B. E. Ry. Co., 1908, 83; Montague n. Conn. Valley Co., 1909, 126; Cambridge i. B. E. Ry. Co., 1909, 121; Newton Co., pet'r, 1909, 131; Western Mass. Co., pet'r, 1909, 139. For report on transfer privileges on the Boston Elevated system. See Boston u. B. E. Ry., 1912, 123. For decision as to night service in East Boston tunnel, see 1908, 84. 1 See Crowley v. Fitcliburg & Leominster St. Ry. Co., 185 Mass. 279. FENCING — FIREMAN. 67 FENCING. 594. The obligation of a corporation, under 1879, 205, § 1 [R. L. Ill, § 120, now 1906, 463, Part II, § 103],' to erect fences is imposed chiefly with a view to the safety of passengers, and is irrespective of the fact that no request for the erection of a fence has been made by an adjoining owner, or that the corporation itself owns the adjoining land. Briggs V. B. & A. R. Co., 1880, 205. 595. Statute 1879, 205, § 1 [1906, 463, Part II, I 103^], providing for the exemption of corporations from the duty of fencing, was designed to allow exemptions in cases where the nature and use of the land make it unnecessary for public safety to erect any safeguard against cattle, and not merely in cases where the abutters do not desire their land to be fenced. 1881, 26. 696a. Public Statutes 112, § 115 [1906, 463, Part II, § 103], exempting a corpora- tion from the duty of fencing at places "where the convenient use of the road would be obstructed by a fence," refers mainly to the use of the road by customers, and not only to its use by the corporation. Hefterran n. Fitchburg R. Co., 1885, 156. 5966. In cases under P. S. 112, § 115 [1906, 463, Part II, § 103], where by the terms of the statute the corporation is exempted from the duty of fencing, no special ex- emption by the county co mm issioners is needed. lb. 597. Upon a petition to revoke an exemption granted to a corporation by the county commissioners, it is no defence that the claim of the petitioner to a right of way across the track for driving cattle and for other purposes is unsound. lb. 598. Where a corporation, under P. S. 112, § 115 [1906, 463, Part II, § 103], is exempted FENCING — Con. from the duty of fencing because the con- venient use of the road would be ob- structed by a fence, it is the duty of the corporation to acquire land, so that they may erect a safe fence and still conduct their business conveniently. 599. Under Stat. 1882, 162 [1906, 463, Part II, § 103], relating to the fencing of rail- roads, the Board has no power, in any case where exemptions have been granted before the date of the statute, to institute proceedings for the revocation of such ex- emption. 1883, 30. 600. A corporation is not punishable under Stat. 1879, 205, § 1 [1906, 463, Part II, § 103], unless its neglect to comply with the provision in question has been un- reasonable; and, in determining what neglect is unreasonable, the extent of work to be performed, the delay involved in making application for exemption, and all other circumstances, are to be con- sidered. Brigga v. B. & A. R. Co., 1880, 205. FENDERS. See 1892, 96; 1893, 91; 1895, 105, 177; 1896, 113; 1903, 46; 1904, 40; 1907, 57; 1908, 60, 174; 1912, 57. 601. The Acts of 1906, chapter 463, part III, section 90, provide that a street rail- way company shall equip its ears when in use with such fenders and wheelguards as the Board may require.' See also 7. For report of the Board on an investigation of fenders and wheelguards, and list of types approved, see 1912. FERRY OPERATION. See 53, 55, 56. FIRE. Safeguards against fire. See 941, 942. FIREMAN. Should be on all locomotives. See 792. 1 See Byrnes j. B. &. M. R., 181 Mass. 322. 2 Menut V. N. & M. R.R., 207 Mass. 12. The liistory of St. 1906, o. 463, Part II, § 103, . . . with certam excep- tions requires that the words "suitable fences" therein shall be construed to mean fences suitable to protect the cattle of adjoining land owners and to prevent their intrusion upon the railroad locations. 8 The regulations for the eqioipment of cars with fenders or wheel guards were revised in 1910, and a circxilflr was issued containing the following requirements: — 1. All cars operated on surface lines by street railway companies (excepting cars run only as trailing cars) shall be equipped with fenders; and all cars operated on surface Unes shall be equipped with wheelguards. 2. In the opinion of the Board the rigid part of all fenders should be, as near as practicable, twelve inches above the rail; and the height of wheelguards should be, as near as practicable, four inches above the rail. 3. Each street railway company shall submit to the Board, on or before December 1, 1910, a blue-print, sketch or photograph showing the types of such fenders and wheelguards, attached to a car, as it desires to use, together with the height of same above the rails, and accompanied by a petition requesting the approval of the same by the board. 68 FIVE-CENT FARE GEOGKAPHICAL DIVISION. FIVE-CENT FARE. On street railways. See 559, 566, 571, 573, 575, 584. Limits. See lb. FLAG STATION. See 58, 463. FLAGMAN. 602. The station is closed at eight p.m. and the agent withdraws. As he is the flag- man, the Board regards this as far more serious than the other complaints. Where the managers have voluntarily, or by order of the proper authorities, stationed a flagman, he ought not to be withdrawn during the evening while trains continue to run. The fact that fewer trains pass at late hours is more than balanced by the danger arising from darkness. The mere fact that the traveller sees no flagman at the place where he is accustomed to see one is in itself a source of danger. Prentice ». B., R. B. & L. R. Co., 1884, 163. See also 246, 325-328. FOOT-GUARDS. In frogs, etc. For discussion, see 1885, 96, 98; 1886, 28; 1887, 22, 139. FORECLOSURE. See 165. FOREIGN CONSTRUCTION COMPA- NIES. See 218. FOREIGN CORPORATION. See 199, 370, 862-864, 932. FOREIGN COMMERCE. Or domestic. See 549. FORFEITURE. See 711, 726, 736. FORWARDING FREIGHT. See 149. FOUR-TRACK SYSTEM. See 204. 919. FRANCHISE. 603. The forfeiture of the franchise of a corporation cannot be passed upon col- laterally in any proceeding or before any tribunal, and therefore an allegation that a petitioning corporation has violated its charter, and, in consequence, has ceased to exist by virtue of the forfeiture of its franchise, is immaterial and affords no ground for refusing a hearing upon the petition, unless it is made to appear that such probable ground for forfeiture exists as renders it justifiable, by postponing the hearing, to avoid causing trouble and ex- FRANCHISE — Con. pense to the parties concerned until the question of forfeiture is settled.' Cape Cod Ship Canal Co., pet'r, 1884, 86. See also Cambridge R. Co. v. Charles River St. R. Co., 1886, 137. See also 221. Extension of (street railway). See 711, 714, 736, 895. Unremunerative. See 404, 413. FRAUD. See 188, 196. In preliminary proceedings of organization. See 192, 211, 214. See also 577, 850, 852. FREE PASSES. For purchasers of house lots. See 542. FREE TRANSFERS (STREET RAILWAY). See 586-592. FREIGHT. See Accommodations, IV.; V. See also Bag- gage; Express System; Fares and Freights; Milk Transportation. For general discussion, see 1870, 65; 1871, 33; 1872,156; 1876,60; 1877,46; 1881, 29; 1886, 38, 46; 1887, 34. FREIGHT AGENT. See 812. FREIGHT CARS. See 144, 148. See also Guard Rails. FREIGHT STATIONS. See 112, 144, 146-150. FREIGHT YARD. Street in. See 293. FREIGHT TRAINS. Brakemen on. See 368. Operation of. See 368, 369,''364, 392-396, 398. FRESH FISH. Low rates on. See 472. FROG CROSSINGS. See 318, 319, 911. FROGS. See Foot-Guards. FUEL. See Operation, GATES. At crossings. See 242, 301. Platform. See 1892, 160. '^ At private ways. See 242. GENERAL PRACTICE. As to fares, not conclusive. See 431. GEOGRAPHICAL DIVISION. Of grade crossing eliminations. See 353. 1 For a discussion of the proposal that the charter of the New York, New Haven & Hartford railroad be forfeited, see report of the railroad, tax and bank commissioners, page 7 of Validation report to the legislature, 1911. 2 For opinion as to violation of R. L. Ill, § 214 (now 1906, 463, Part II, § 172) see Rice v. N. Y. C. R., 186 Mass. 621. GOING CONCERN — INVESTOR. 69 GOING CONCERN. See 578. GOOD FAITH. Subscriptions of stock in good faith, see Charter Certificate. Good faith in con- struction expenses, see Construction. Good faith in operating a leased line, see Lease. Good faith in building a street railway, see Location V. Good faith in granting loca- tions, see Location V. GRADE. Change of. See 255, 335, 344. GRADE CROSSING. iSee Crossings. See also Location, II., V.; Stations. Necessity for, see 248, 249, 256, 257, 263-270, 275, 277, 280, 283-286. Established since 1890 without remedy, see 281. Of street railways and highways, see 742, 743, 744, 748. GRADES AND CURVES. Avoidance of, by private land locations. See (745. GRANTS OF LOCATION. iSee Location. GRINDING. In transit. See 156. GUARD RAILS. On freight cars. See 1904, 3. See also 202. HALF FARES. See Fares and Freights, IV., VI. HARMONY IN LEGISLATION. See 1892, 3, 127. HEATING. See Trains and Cars. HEIGHT OF BRIDGES. See 202-207. HIGHWAY. See Crossings; Express; Fares and Freights, VI.; Location, IV. and V.; Bridges; Street Incident to use of. See Location, V. For obstruction of highway by trains and street cars, see Trains and Cars; Crossings, VI. For marine highway, see Fares and Freights, V. For highway changes to ac- commodate street railways, see Fares and Freights, VI. For street railway crossing, see Location, V. For repairs on highways by street railways, see Location, V. HOLDING COMPANY. See 592. For report on the "Massachusetts Electric Companies" see 1902, 57. For orders approving issue of stock or bonds by the Boston Railroad Holding Company, see reports for the years 1909, 1910 and 1911. HOLIDAYS. For a recommendation that trains with- drawn on holidays be indicated on time- tables, etc., see 1912, 117. HORSES. Frightened by trains. See 318, 940. HOSTILE CONTRACTORS. See Milk Transportation. ICING MILK. See 775. INCIDENTAL. See 744. INCREASE. Of capital stock. See Stock. INDORSEMENT. Of aldermen or selectmen. See 198. INJUNCTION. See 28, 29, 192, 194, 195. INSOLVENT CORPORATION. See 165. INSPECTORS. See 1895, 46, 205. INTERESTED PARTIES. See Location V. For definition, see 1906, 516, § 27. See also 675, 689. INTERLOCKING SWITCHES AND SIG- NALS. For discussion, see 1880, 30. See also Crossings, V. INTERSECTING ROADS. See Crossings, IV., V. INTERSTATE COMMERCE. See Accommodations, I.; Express System; Fares and Freights, I., III. {Long and Short Haul); Board of Railroad Commis- sioners. INTERURBAN RAILWAYS. See 702. See also Electric Railroads. INTERURBAN SERVICE. On street railways. See 557, 563, 566, 567, 568. INTERVENTION. See 501, 538. INTOXICATED PERSONS. On street cars. See 950, 951. INWARD TRACKS. Location for station. See 833. INVESTIGATION. See Board of Railroad Commissioners; Ac- commodations, I.; Stock; Location; Lease. INVESTMENT. See Accommodaticns, I.; Fares and Freights, I.; Location, V. INVESTOR. See 89, 93, 233, 237, 404-412, 468, 578, 592. 865, 866. 70 JOINT RATES — LOCATION AND CONSTRUCTION. JOINT RATES. iSee 414, 419. JOINT USE OF TRACES. See 686, 886-901. JURISDICTION. See Board of Railroad Commissioners; Cross- ings II., III., IV., VI.; Connecting Roads; Location, III., V.; Express System; Fares and Freights, V., VI.; State Road. JUSTIFICATION. See Accommodations, VII.; Fares and Freights, I., II., III. Of grade crossing abolition. See 362. KNOW NOTHING STOPS. See 803. LAND DAMAGES. See Damages. See also 103. LAND, PURCHASED BY STREET RAIL- WAY COMPANIES. See 867, 868, 872. LANTERNS. See Signals. LAPSE. See 110. LAW, VIOLATIONS OP. See Board of Railroad Commissioners. LAWFUL PURPOSES. See 849-853. LEASE. 604. For a case involving the duty of a lessor to furnish accommodations on leased road. See 24. 605. For an investigation, decided on its facts, into the good faith of a corporation in operating a leased line, see Nelson ». Duxbury & Cohasset R. Co., 1878, 105. See also 24, 54, 308, 395, 511. Approval of. Under Chap. BOO, 1897. 606. The paramount question we must as- sume to be this: Taking into account the character and scope of the lease, and all the facts and conditions, present and pro- spective, that underlie and surround the subject-matter, are the terms of the lease, so far as they relate to the rental charge to be assumed and to the service to be ren- dered, consistent with the public interest and in accord with public policy? This question the statute requires us to answer by giving or withholding the approval on which the validity of the lease depends. Boston Elevated and West End Go's, pet'rs, 1898, 140. For discussion of the leases of the Boston & Albany and Fitchburg railroads, see 1901, 44. LEASE — Con. For approval of lease of Old Colony street railway lines in Boston to the Boston Ele- vated Railway Co., see 1904, 68. LEGISLATION. Directory in certain cases. See 296. LEGISLATURE. See under the various headings. 607. For a discussion of the weight carried by previous legislative sanction or dis- approval in relation to a subject before the Board, see Mass. Central R. Co., pet'r, 1881, 220 (Grade crossing). Northampton v. Conn. River R. Co. et al., 1882, 119 (Union station). Hopkinson et al., pet'rs, 1872, 206 (Rates). Old Colony R. Co., 1891, 200 (Grade cross- ing). 1893, U (Rates). Whitman & Plymouth Co., pet'r, 1900, 140 (Location). Brockton d. N. Y., N. H. & H. R. Co., 1902, 83 (Coal rates). G. D. & N. St. Ry. Co., 1903, 178 (Connect- ing location). Appeal, N. Y., N. H. & H. R. Co., 1904, 77 (Alteration crossing). Nantucket County et al. v. N. B., M. V. & N. Steamboat Co., 1905, 14 (Rates and ser- vice). Boston Aldermen, pet'rs, 1905, 46 (Abolition crossing). Newton Aldermen, pet'rs, 1905, 51 (Abolition crossing). Fairhaven Ferry Report, 1905, 124 (Opera- tion). Haverhill & Boxford St. Ry. Co. pet'r, 1906, 136. Nashua & Acton and Concord & Montreal Go's, pet'rs, 1910, 132. Berkshire St. Ry., stock purchase, 1911, 114. Appeal to. See 424. LIFTING JACKS. See 6, 8. See also 1912, 96. LIGHTED STREETS. See 908. LIGHTING. See Trains and Cars. LIMITATIONS, STATUTE OF. See 109, 110, 111, 119-122. LIMIT OF SPEED. See Street Railway, IV. LOCAL CONDITIONS. As governing fares. See 561, 564, 566-573, 576. LOCAL TRAINS. See 18, 30, 38, 43-45, 62-64, 68, 72, 76. LOCATION AND CONSTRUCTION. For relocation of stations, see Stations, II. For location and construction of railroads across other railroads at grade, see also Crossings, IV. For location and construc- tion of street railways across railroads, see Crossings, IV. LOCATION AND CONSTRUCTION. 71 LOCATION AND CONSTRUCTION— Con. I. In General. II. Cektificate op Exigency. III. Requisites of Petition tor Location. IV. What Route will be Granted, etc. V. Street Railway Locations. I. In General. Under Special Acts. 608. Where, by a special act, the route of a railroad was fixed within certain limits, and the Board was directed within those limits to determine the location, construc- tion and arrangement of tracks and bridges, independently of any petition or of any act to be done by any party, a petition remonstrating against such action of the Board according to law was held not well-founded. Re Tracks in Worcester, 1874, 122. 609. When the time of filing a petition to the Board to fijc a certain location is limited by a special act to a certain period (St. 1871, 343), the Board has no power to entertain a petition filed after the ex- piration of that period. Norwich & Worcester R. Co., pet'r, 1879, 383. 610. For a report in relation to the location of the 0. C. R. Co., on the State dike at Provincetown, see Re State Dike, 1884, 165. Private Railroads. 611. The words "travelled place" in P. S. 112, § 224 [R. L. Ill, § 279, now 1906, 463, Part II, § 251], include a thorough- fare never accepted, acknowledged or laid out by the town authorities ; and a railroad situated entirely on land owned by private parties, and used for the transportation of freight, cannot legally be constructed across such a way without the consent of the town authorities; nor can it without such consent be operated by steam power. Wareham 112. Onset Bay Grove Assoc, 1887, 612. Semble that a passenger road situated entirely upon the land of private parties cannot legally be constructed and operated without complying with the statutory pro- visions as to railroads. Ih. See also Guffey, pet'r, 1904, 79. Branches and Extensions. 613. Under P. S. 112, § 139 [R. L. Ill, § 161, now 1906, 463, Part II, § 126], it is LOCATION AND CONSTRUCTION— Con. lawful for a corporation to construct branch tracks running not directly from its main line, but from tracks lying out of its loca- tion and owned by other parties, over which, nevertheless, the corporation has a license to run; but whether such con- struction is lawful when the intervening tracks are used, not by a license, but by- authority of a statute, — gu(ere. B. & L. R. Ctorp., pet'r, 1887, 105. 614. Under P. S. 112, § 139 [1906, 463, Part II, § 126], the construction of an extension or branch of a branch already constructed is lawful. lb. 615. The town of Brookline remonstrates against the adoption of the proposed route for the reason that it passes through certain lands in Boston which the town holds as a part of its system of water works. Through its counsel it contends that as a matter of law a railroad cannot be located through these premises without special act of the Legislature. There can be little if any doubt that the facts bring this case within the rule that lands already devoted to a pubHe use cannot be taken under general laws for anothei inconsistent use. The Board is of the opinion that the route for the railroad should be fixed in accordance with the plan presented, but believes that it is without authority to so fix the loute under the general law. New England R. Co., pet'r, 1905, 30. 616. For a decision under Stat. 1851, 128, relating to the power of the Salem &. Lowell R. Co. to build branches, see B. & L. R. Corp., pet'r, 1887, 105. Records of Locations. 617. In 1877, under a resolve of the General Court, the railroad commissioners exam- ined the records of railroad locations on file in the several counties and the systems in use for preservation of such records. The Board made a report in which it pointed out that these records of location were in the nature of tiUe deeds, and as a result chapter 135 of the Acts of 1878 was passed, which authorized the commission- ers to examine records of locations of rail- roads and to prescribe rules in regard to the- form in which these records should be made. As a result of this legislation a thorough examination was made and in many cases new locations were filed and advertised. The rules prescribed by the Board under the original act, now section 72 LOCATION AND CONSTRUCTION. LOCATION AND CONSTRUCTION— Con. 81 of part II, chapter 463 of the Acts of 1906, have never been materially altered. 1910, 61. 618. Too much emphasis cannot be placed upon the fact that these records of rail- road locations must not only have the certainty and precision of a deed but that as stated they are in the nature of a title deed.' lb. II. Cebtipioates of Exigency. 619. Under Stat. 1874, 372, § 26 [R. L. Ill, § 43, now 1906, 463, Part II, § 21], and before Stat. 1882, 265 [R. L. Ill, §§ 40, 161, now 1906, 463, Part II, §§ 18, 126], where preliminary steps for organizing a railroad association and obtaining a route had been legally taken, and where the selectmen of a town had refused a route through it, the Board was bound to grant a route without proof of public exigency, and without regard to its own opinion on that question; and the petitions of any number of associations for adjacent routes must have been granted, unless some phys- ical obstacle prevented. Nant. Beach R. Assoc, et al., pet'rs, 1880, 44. Cambridge & S. B. R. Assoc, pet'rs, 1881, 16. See also 1882, 25. 620. Whether the petitioners could select their termini, in such a case, or whether LOCATION AND CONSTRUCTION— Con. the Board would be at liberty to select the termini, — quaere. Nant. Beach B. Assoc, et al., pet'rs, 1880, 44. 621. For an account of the enactment of Stat. 1882, 265 [R. L. Ill, §§ 34, 40, 47, 89, 161, now 1906, 463, Part II, §§ 12, 18, 26, 72, 126], see 1881, 56; 1882, 25; 1883, 29. 622. The word "herein" in § 4, .265, Stat. 1882, [now 1906, 463, Part II, § 72, except- ing the phrase here discussed, omitted from R. L. Ill, § 89], providing that "nothing herein contained shall affect any existing provisions of law regarding the location and construction of branch railroads," refers to § 4 only, and not to the whole chapter, and § 4, therefore, does not con- flict with § 3 of the same chapter, provid- ing that the act shall apply to any railroad corporation acting under P. S. 112, § 139 [1906, 463, Part II, § 126], regulating the construction of branches and extensions. 1883, 29. 623. Statute 1882, 265, § 3 [see R. L. Ill, §§ 34, 40, now 1906, 463, Part II, §§ 12, 18], providing that c. 265 shall not apply to any railroad corporation acting under the authority of a special act of the Legislature, was intended only to relieve a corporation especially authorized to construct a road from the necessity of applying for a eer- tifioate, and does not apply to all corpora- 1 The rules prescribed by tKe Board of Railroad Commissioners, under sections 02 and 97, chapter 111, Revised Laws (now 1906, 463, Part II, §§ 75, 81) in regard to records of land purchased or acquired for railroad purposes, or of railroad locations, and the manner of keeping the same, are as follows: — Rm.E 1. Location maps shall be made upon a scale showing not more than four hundred feet to the inch, upon cloth-backed paper, and shall be firmly bound for record in books eighteen (18) inches from top to bottom, and thirty (30) inches from back to front. Rule 2. Said maps shall show the courses of the tangents and the radii of the curves of the centre line of the railroad in question; the widths of land taken, specifying such width on each side of the centre line; also the courses of the division lines between the lots over which the location is made, and the distance between them on the centre line. When the land purchased or taken is entirely on one side of the centre line of location or outside the location, the description shall be so made as to tie the boundary lines of the lot to the centre line by lines, the courses and distances of which from a fixed point or points on said centre line shall be given. Where but one track is laid, the position of such track with reference to the centre line shall also be shown, in order that the boundaries of land may hereafter be determined by measurements from the track as laid, if the same shall not have been changed. Where two tracks are laid it shall be specified whether the centre line is the centre line of one of them or is midway between them. Note, — The courses called for above may be either magnetic or true, but the maps and descriptions must specify which are given. RtTLE 3. The description in writing must in all cases correspond with the map, and the two taken together must have the substantial certainty and precision of a deed. (2 Gray, 580.) Rnr^E 4. The location shall be certified by the directors of the corporation, or by the president, if authorized by a vote of said directors. Rin-E 5. The location, when deposited with the clerk of the county commissioners, shall be kept for preserva- tion and convenient reference in the ofiBce of said clerk, in a cabinet used exclusively for that purpose, and fur- nished with shelves sufficient to allow at least one separate shelf for the maps of each corporation owning a railroad within the county. RmE 6. A book shall be kept in the office of each clerk, in which shall be recorded the name of every location, the time when it was filed, and the shelf where it is deposited. Rule 7. No location after it has once been filed shall be taken from the office of the clerk for any purpose ex- cept upon the order of a court or other proper authority. LOCATION AND CONSTRUCTION. 73 LOCATION AND CONSTRUCTION— Con. tions created by or existing under special act. B. & L. E. Corp., pet'r, 1887, 105. 624. Upon the hearing of a petition under Stat. 1882, 265 [1906, 463, Part II, §§ 12, 18, 26, 72, 126], the only question before the Board is whether there is an exigency for a railroad between the proposed termini. E. R. Co., pet'r, 1886, 130. Onset Bay Grove E. Assoc, pet're, 1886, 132. 625. Upon such a petition the question of the route of the proposed road is not be- fore the Board; but where only one route is practicable or is contemplated it arises incidentally, and in such case the question is whether there is an exigency for such a road as is proposed. 626. Nor, upon such a petition, can the ques- tion of allowing grade crossings come be- fore the Board. B. & L. R. Corp., pet'r, 1885, 170. E. R. Co., pet'r, 1886, 130. 627. But testimony as to the need of grade crossings and of their character, and of the practicability of constructing the road without such crossings, is admissible as bearing on the question of exigency. B. & L. E. Corp., pet'r, 1885, 170. 628. An examination of the plans accom- panying the petition of the Southern New England Railroad Corporation discloses certain proposed crossings at grade with existing highways. It is to be under- stood, in view of the policy of the Com- monwealth, that this decision is not to be taken aa a declaration that any crossings at grade are to be approved in any sub- sequent proceedings before the Board that may arise with respect thereto. Southern New England Co., pet'r, 1911, 188. 629. It would have been proper for the Board when it had the question of the issue of exigency before it, to consider the grade crossing questions which would probably arise; but its failure at that time to realize the gravity of danger attaching to any par- ticular crossing would not be a satisfactory excuse for shutting its eyes to those dan- gers when the subject of grade crossings is especially brought to its attention for its approval or disapproval, as required by law. Boston, Winthiop & Shore R. Co., pet'r, 1889, 250. LOCATION AND CONSTRUCTION— Con. 630. If the Board overlooked an important element, or did not appreciate its bearings at that time, it has an opportunity now to correct that oversight or mistake, and the way to correct it is not by confirma- tion. . . . Two wrongs do not make a right. The crossing at grade ought not to be permitted. If a grade crossing is established now, it will be difficult and expensive to abolish it in the future. Pre- vention is better than cure, and prevention now is easy. Ih. 631. If it appears that one of two roads fur- nishes the desired accommodation with- out the danger incident to the other, no exigency exists for the latter route. B. & L. R. Corp., pet'r, 1887, 105. E. R. Co., pet'r, 1887, 105. 632. And as between a grade crossing and an overhead bridge, the latter is the less dangerous structure. lb. 633. It is no argument against a proposed route, otherwise preferable, that the cor- poration requesting it has in past time neglected its duty to the community, and now offers to perform its duty actuated only by a spirit of rivalry. lb. 634. Difficult as the task may be thus to decide between the relative claims of peti- tioners for the grant of the same powers and privileges, the Board is of the opinion that the statute does contemplate the exercise of such selective power, and that justice and a due regard for the public interest demand it. Priority of time may, under certain circiunstances, be an im- portant factor in arriving at the decision. Old Colony R. Co. v. Association for Forma- tion of North Attleborough & Wrentham R. Co., 1889, 257. 635. One of the chief purposes of our statutes relating to railroads and one of the special duties of this Board is to secure for the public proper accommoda- tions, facilities and rates, without resort to the wasteful expedient of building an otherwise unnecessary road and the con- sequent ruinous competition. lb., p. 261. 636. A community cannot, in the long run, be so well served by a railroad company which is obliged to pay high rates of in- terest for money borrowed, as by a com- 74 LOCATION AND CONSTEUCTION. LOCATION AND CONSTRUCTION— Con. pany the financial standing of which is such that it can borrow money at the lowest market rates. .'6., p. 263. 637. Two railroads should not be built to accommodate the traffic which would be accommodated just as well by one road. One of the main objects of the statute under which this petition is brought was to prevent the building of unnecessary railroads, and especially to guard against the construction of parallel routes, one of which could furnish all the aooommoda^ tion which could be furnished by two or more. New York & New England E. Co., pet'r, 1891, 311. 638. In any investigation of the questions before us, it must be taken as fundamental that the field of service sought by both petitioners ia the territory of the common- wealth and not preempted by any rail- road control. Whether or not so called zones of legitimate railroad influence may properly exist, it is not necessary to de- cide. It is enough to say that nothing of the kind has been shown here. Giving due weight therefore to all the considera- tions that in the aggregate should deter- mine the greater public good and more nearly meet the requirements of the situa- tion, we are of opinion that the application of the Southern New England Railroad Corporation should have our approval and the application of The New York, New Haven & Hartford Railroad Company should be dismissed. Southern New England Corp., pet'r, and New York, New Haven & Hartford Co., pet'r, 1911, 186. 639. The rights of the petitioners and the remonstrants, in the case of a petition for a certificate of exigency, are not affected by the fact that a railroad has already been constructed by the petitioners with- out sanction of law. Onset Bay Grove R. Assoc, pet'rs, 1886, 132. 640. But the existence of such a, road fur- nishes evidence as to its probable future use and its convenience to the public, which may be used by either party as material to the question of exigency. lb. 641. It appears that the route as proposed through the city of Chicopee is subject to local objection, and while the statutes of the Commonwealth make adequate pro- LOCATION AND CONSTRUCTION— Con. vision for an agreement between the board of aldermen of that city and the directors of the company, in the event of their fail- ure to agree, the Board desires it to be understood that it will take note of the suggestion of the municipal authorities of that city for a modification of the route through Chicopee. Hampden Corp., pet'r, 1911, 184. 642. For petitions for a certificate of exi- gency (decided upon their particular facts) see E. R. Co., pet'r, 1886, 130. Onset Bay Grove R. Assoc, pet'r, 1886, 132. B. & L. R. Corp., pet'r, 1887, 105. Nahant R. Assoc, pet'r, 1887, 110. Onset Bay Grove R. Assoc, pet'r, 1887, 115. East Wareham & O. B. R. Assoc, pet'r, 1888, 156. Old Colony R. Co., 1902, 196. New England R. Co., 1905, 30. Connecticut River R. Co., 1906, 94. Conn. River R. Co., pet'r, 1911, 183. 643. For a petition for a certificate of exi- gency for the Meigs Elevated R. Co., under special legisla ion and under Stat. 1882, 265, see Meigs Elevated R. Assoc, pet'rs, 1885, 169. Electric Railroads. (Under 1906, 516.) 644. The question to be decided under each petition is whether, upon the whole, the net results of the proposed undertaking promise public gain or public loss. . . . It surely cannot be said that public necessity and convenience require the building of an additional railroad if the effect upon existing railroads is so dis- astrous that the service as a whole is impaired rather than improved. 1908, 55. 645. The Legislature of 1906 in distinguish- ing the new electric railroad from other railroads and railways calls for a, broad outlook on the part of those who make use of it and for the adoption of a farsighted policy that will not shrink from large out- lays in bringing about the benefits that are possible under it. It would be a lament- able mistake to endorse an enterprise that fails to fully grasp the opportunity presented, and to permit the construction of a railroad which in a few years would probably be only a stumbling block in the way of carrying out larger plans for the public good. Boston & Providence Co. et al., pet'rs, 1908, 152. LOCATION AND CONSTRUCTION. 75 LOCATION AND CONSTRUCTION— Con. 646. A primary test to be applied to applica- tions of this character is whether the net results of the proposed undertaking prom- ise public gain or public loss. The public convenience and necessity must be meas- ured as a whole, giving due regard to the entire territory within which the proposed railroad is to be constructed. So measured, a majority of the Board is of opinion that public convenience and necessity do not require the construction of a railroad as proposed in the agreement of associa- tion for the formation of the Boston, Lowell & Lawrence Electric Railroad Company. The chairman, being of opinion that the public convenience and necessity require the construction of the proposed railroad, records his dissent from the conclusions of the majority of the Board. Boston, Lowell & Lawrence Co., pet're, 1911, 179. See Memoranduni, Boston & Eastern Co., pet'rs, 1911, 181. 647. The present petition was filed Febru- ary 1, 1909, and thereafter public hearings were held and then suspended, pending proceedings in the supreme judicial court. ^ Following the decision of the suits arising out of the proceedings hearings were re- sumed and are now concluded. A careful review and consideration of the evidence show that public convenience and neces- sity require the construction of a railroad as proposed in the agreement of associa- tion. The Board reaches this conclusion independent of any consideration of con- nections at the termini of the road with lines of existing companies. Boston and Western Co., 1911, 182. III. REQtnsiTES OP Petition for Loca- tion. 648. The Board has jiu:isdiction of an appli- cation for a route under P. S. 112, § 41 [R. L. Ill, § 43, now 1906, 463, Part II, § 21], when it appears that on the date of the application the directors of the rail- road associates had failed to agree with the mayor and aldermen of a city as to the route of the railroad in that city, even though it does not appear that the mayor and aldermen have refused to grant a route. Cambridge & S. B. R. Assoc, et al., pet'rs, 1881, 46. LOCATION AND CONSTEUCTION— Con. 649. In order to give jurisdiction to the Board, under P. S. 112, § 41 [1906, 463, Part II, I 21], of a petition to fix the route of a proposed railroad, by reason of the failmre of the directors of the association and the selectmen of a town to come to an agreement, it must appear that a proper application was made by the directors to the selectmen, and that there was a failure to agree. N. Y. & B. Inland R. Assoc, pet'rs, 1883, 120. 650. Neither the proposed manner of build- ing nor the exact route need be set forth in the petition, but the fact that these are set forth does not prevent the Board from acting on the petition. Cambridge & S. B. R. Assoc, et al., pet'rs, 1881, 46. 651. That the petitioners ask for a route for an elevated and not a surface railroad is therefore immaterial, and cannot affect the jurisdiction of the Board. lb. 652. A proper application is not made when the directors submit the report of an en- gineer containing an estimate not based upon an actual survey of the route. N. Y. & B. Inland R. Assoc, pet'rs, 1883, 120. 653. Under P. S. 112, § 39 [1906, 463. Part II, § 19], a map of the whole of the pro- posed route must be submitted to the selectmen of each town, and not merely a map of that portion of the route lying in the town to which application is being made. Jb. 654. But the selectmen may waive the sub- mission of the whole map, either in express words or by their acts; and the assent of a board of selectmen is evidence that fur- ther submission than that which was made was waived, and. if the meeting was legally notified, waived for all purposes. lb. 655. The petition will not be granted when it appears that the map of the proposed route does not contain a profile thereof on a vertical scale, as required by P. S. 112, § 38 [1906, 463, Part II, § 17], or any ex- planation by the engineer of the absence of such a profile. N. Y. & B. Inland R. Assoc, pet'rs, 1883, 120. Salisbury Beach R. Assoc, pet'rs, 1885, 168. I 205 Mass. 94. In this opinion the court held that the railroad commissioners were right in holding that the dismissal of an application at the request of the applicants, for an informality, was not a refusal of it within the meaning of 1906, 516 § 5. 76 LOCATION AND CONSTRUCTION. LOCATION AND CONSTRtJCTION— Con. 656. Or when it appears that the map does not show the fact that the proposed route crosses a highway and also tide-water, or the manner proposed for crossing the same. Salisbury Beach R. Assoc, pet'rs, 1885, 168. 657. A map setting forth a route forbidden by law, and therefore impossible to be used, is not such a map as the law requires. Cambridge & S. B. R. Assoc, et al., pet'rs, 1881, 53. 658. Under P. S. 112, § 41 [1906, 463, Part lit § 21], when the petitioners, having failed to agree with the municipal authori- ties, have appealed to the Board, and the Board refuses to give the route originally asked for, it is not necessary for the pe- titioners, upon renewing (before the Board) their request for a route and specifying a different one, first to file anew a petition to the municipal authorities, provided the original one was properly presented. lb. 659. Whether an amendment can be allowed, when upon a petition for a charter certi- ficate it appears that the map of the pro- posed route is fatally defective in not corresponding to the requirements of P. S. 113, § 38 [1906, 463, Part II, § 17],— quwre. Salisbury Beack R. Assoc, pet'rs, 1885, 168. IV. What RotrrB will be Granted, etc. 660. Upon an application under P. S. 112, § 41 [1906, 463, Part II, § 21], it is the duty of the Board to grant such a route as will best accomnaodate and least injure the citizens and land owners, and a route run- ning through Boston on land abutting on Washington and Tremont streets, neces- sitating the destruction of valuable estates and endangering travel, is not such a route. Cambridge & S. B. R. Assoc, et al., pet'rs, 1881, 53. 661. Petitioners for a route under P. S. 112, § 41 [1906, 463, Part II, § 21], cannot claim as of right that they shall have the route that they prefer, or the route that is most profitable. lb. 662. If the petitioners for a route so demand, the Board must grant a route running be- tween the termini mentioned in the pe- tition, which, without running lengthwise on any highway or crossing any park or common, shall pass over, under or through some portion of the cities and towns in- tersected by the route, crossing streets and LOCATION AND CONSTRUCTION— Con. highways where they intersect the route, and crossing navigable waters, if the authorities assent, by independent struc- tures; and it is no objection to the granting of such a route that expense of construc- tion, damages, etc., wovild make it un- profitable or impracticable. Cambridge & S. B. R. Assoc et al., pet'rs, 1881, 46. 663. Under the law as stated in B. & M. Railroad ii. Lowell & Lawrence R. Co., 124 Mass. 468, the Board cannot grant a route running longitudinally through a street or highway; and this law applies to all railroads without regard to their alti- tude. lb. 664. Nor does the Board acquire power to do so by virtue of P. S. 112, § 42 [1906, 463, Part II, § 22], giving to the municipal authorities power to allow branches and connecting tracks running longitudinally within a public way. lb. 665. P. S. 112, § 139 [repealed by 1884, 279], relating to the location and construc- tion of railroads within eight miles of the State House, applies only to the construc- tion of branches, and not of independent railroads. lb. 666. When a route has been given, the pe- titioners, subject to the provisions of law, may construct as they choose, whether under, on, or over the surface, by tunnel, viaduct, or trestle-work. 667. For a certificate of the Board consent- ing to the location and construction of any part of the Meigs Elevated railway within three miles of the State House, see Rec- ords, Vol. 4, p. 199. 668. Under P. S. 112, § 41 [1906, 463, Part II, I 21], it is the duty of the Board merely to indicate generally what route will be granted, and of the petitioners to employ an engineer to make surveys and maps under the direction and supervision of the Board; nor can the Board under § 17 of 112 [R. L. Ill, § 16, now 1906, 463, Part I, § 10], employ an expert for such Cambridge & S. B. R. Assoc, et al., pet'rs, 1881, 53. 669. Where, under Stat. 1874, 372, | 26, [1906, 463, Part II, § 21], on appeal from the selectmen of a town who have failed LOCATION AND CONSTRUCTION. 77 LOCATION AND CONSTRUCTION— Con. to agree with the directors of a corporation as to the location of its tracks, the Board fixes the location, the point decided is the alignment only, not the altitude, of the tracks, and therefore the grade at which highways shall be crossed is a matter not involved or determined in such decision. Mass. Central R. Co., pet'r, 1880, 223. Cambridge & S. B. R. Assoc, et al., pet'ra, 1881, 46. V. Steeet Railway Locations. See Street Railway, I., III. Under General Acts. 670. Public Statutes 112 [R. L. Ill, etc.], applies to the location and construction of elevated as well as of surface railroads. Cambridge & S. B. R. Assoc, pet'rs, 1881, 46. 671. The accommodation of pleasure travel is a lawful cause for exercising the right of eminent domain. Nahant R. Assoc, pet'rs, 1887, 110. 672. A municipal corporation has no right to annex to the grant of a location a condi- tion that rates of fare within certain terri- tory shall not exceed a given limit. Welby s. Metrop. Ry. Co. et al., 1882, 122. 1888, 19. 673. The power of aldermen or selectmen, under P. S. 113, § 7 [R. L. 112, § 7, now 1906, 463, Part III, § 7], to grant a loca- tion to a street railway company, under such restrictions as the interests of the public may require, does not include or imply the power to sell a location for a sum of money or other valuable considera- tion, or to grant a location upon condition that land shall be contributed by the com- pany for the widening of a street. West End St. Ry. Co., pet'r, 1888, 19, 166. 674. Under P. S. 113, § 21 [R. L. 112, § 30, now 1906, 463, Part III, § 64], a. street railway company which, being duly organ- ized and having termini within a single town, has procured a location for an ex- tension in an adjoining town, and has complied with the provisions of P. S. 113, § 21 [76.], may, without further condition, construct and operate the extension in the adjoining town; nor is it any objection that one terminus is thereby changed from that named in the charter. Brockton St. Ry. Co., pet'r, 1885, 167. 675. Although the words "interested party" found in this section [R. L. 112, § 31, now 1906, 463, Part III, § 65] should receive a LOCATION AND CONSTRUCTION— Con. liberal construction, there is grave ques- tion whether a street railway company in process of organization and before it has been anywhere given a grant of location can be considered an "interested party," within the meaning of this statute. Millbury, Singletery Lake & West Millbury St. Ry. Co., pet'r, 1904, 91. But see Waltham St. Ry. Co., pet'r, 1902, 79 (infra). 676. The appropriate question for the Board in all cases wheie its sanction is required for the building of works or structures in or across a public highway is. Whether on the whole, taking into account the injuries as well as the benefits which are likely to accrue, the public convenience and neces- sity require and justify the making of the proposed alterations and erections in the street; and not in streets in general, but in the particular street? West End St. Ry. Co., pet'r, 1894, 177. 677. The proposed station at Forest Hills takes from general highway uses a sub- stantial area in the public square. It has long been the declared policy of this Board in passing upon railway locations to require companies to make good an invasion of public streets and public places which excludes general highway uses. There is no suggestion here that the company is to furnish an equivalent for what it proposes to take from such uses in this square, and our approval of the project would be with- held for that reason. Boston Elevated Co., pet'r, 1907, 181. 678. The order of location referred to was presented to the mayor of Boston for his approval on December 28, 1898, but was not approved by him, nor did he return the order before the end of the municipal year which expired January 2, 1899. The Board inclines to the opinion that the order was not duly passed and is without legal force and effect; and so rules. If the order is void, it would be idle for the Board to approve the location. Forest Hills & Quincy St. Ry. Co., pet'rs, 1900, 156. 679. The evidence tended to show that on an important section of the route the street as now laid out and constructed is narrow and hardly adequate for the opera- tion of a street railway and for the due safety and convenience of other public travel. Extensive plans for the widening of the street are now under consideration. The location and construction of the rail- 78 LOCATION AND CONSTRUCTION. LOCATION AND CONSTRUCTION— Con. way may properly await, as it seems to us, the fuller development of these plans and improvements. lb. 680. In approving a grant of location where the selectmen had declined to grant to a new company but had granted to an exists ing company locations, the Board said: While it is true that the public highways of every town are to be enjoyed as fully by those who live without as by those who live within the town and are to be kept in suitable repair for those who use them, yet it is left, under our statutes, to each munic- ipality to determine the character of these ways within the requirement that they must be reasonably safe and convenient and to bear the expense of constructing and maintaining them. The inhabitants of the town have therefore a peculiar and special interest in the town ways, aside from that of the general travelling public. West End St. Ry. Co., pet'r, 1901, 267. 681. For a dissenting opinion as to double track location in Harvard Square, Cam- bridge, see West End St. Ey. Co., pet'r, 1901, 270. 682. For special report on removal of tracks from Marlborough Street, Boston, see 1901, 277. 683. For a decision that the termini named in an agreement of association and certi- ficate of incorporation have a practical significance, and that they must be taken as defining in certain respects the limits of an enterprise; and that the company had no right to receive and the aldermen had no authority to grant a location lying entirely without the termini named in said agreement and certificate, see Waltham St. Ry. Co., pet'r, 1903, 192. See also Maplewood & Danvers St. Ry. Co., pet'r, 1905, 58 (.infra). 684. In declining to approve a street railway location where objection was made that residents of a village centre would have no convenient service the Board said: It is true that other towns which this railroad serves have a just interest in a direct and short route. We believe, however, that in view of the fact that the accommoda- tion of local travel does not involve un- reasonable expense to the company or disproportionate inconvenience to other travel, the needs of those persons who live along the route through Boxford out- LOCATION AND CONSTRUCTION— Con. weigh consideration for quick express serv- ice between other towns. Essex County Street Railway Company, pet'rs, 1902, 185. 685. A principal feature of the usefulness of a street railway is still the accommodation rendered from place to place along the highways over which it passes, even though it may interfere with the making of rapid time for through travel. lb. 686. In a case where one street railway company had secured a location from a city government and an order relocating and revoking locations of tracks of an existing street railway company, the Board ruled the order as originally passed and later amended irregular and illegal, one difficulty being that in a requirement as to paving by the existing company an obligation was imposed different from and greater than that imposed in the original grant of location, this being in plain viola- tion of the provisions of sections 15 and 16 of 1898, 578 [1906, 463, Part III, §§ 64, 65]. The second difficulty was that the order undertook to force upon the exist- ing company the surrender of certain property rights and a, joint use with another company of a part of its railway. A third difficulty was that the provisions for carrying the order out were ineffective and unjust. Waltham St. Ry. Co., pet'r, 1902, 77. 687. It would be unjust to require the altera- tion of existing tracks of other companies, when it is practically certain that the order must become void as to the new loca- tion, in view of the time limit named for completion of the work of construction. lb. 688. A grant of location should designate the place in the street which tracks are to occupy with sufficient accuracy to inform owners of abutting estates where they may expect to find them thereafter con- structed. If not a correct rule of law, we deem this a sound rule of practice. lb. 689. The words "interested parties" in 1898, 578, § 16 [1906, 463, Part III, § 65], have a broad meaning, and may well include a street railway company which is seeking in good faith a location in a street in which there is an existing railway, lb. LOCATION AND CONSTRUCTION. 79 LOCATION AND CONSTRUCTION— Con. 690. In the case of street railways, the ques- tion whether the public convenience and necessity warrant the establishment of a new railway is not submitted to the de- cision of this Board, as it is in the case of steam railroads. We should hesitate to overrule the judgment of the local tri- bunal upon that question, unless its action is plainly unjustifiable upon grounds of general public policy. lb. (Chapter 399, 1902, now 1906, 463, Part III, §§ 7, 64, 65, gives to the Board the duty of certifying that street railway locations in the highways are consistent with the public interests.] 691. We are satisfied that the main purpose of this grant was the enlargement of the field for competition. It seems to us that the advantage to be realized from the safer and better operation of the two tracks to Watertown Square through the owner- ship and control of one company decidedly outweighs any advantage to be obtained in this instance from competition; and that, therefore, this location ought not to have been granted without first giving to the Newton Company the opportunity to change its service from single to double track. Waltham St. Ry. Co., pet'r, 1903, 67. 692. Much stress was laid by counsel in argument upon the statement that the tenure of street railway locations is prac- tically secure. Though in legal effect such locations are but revocable rights, the law does not contemplate trifling with them, or wanton attacks upon the capital invested under them. Ih. 693. On the other hand, it does contem- plate that the public service which com- panies undertake shall be properly per- formed, and to this end the public control over the highways is retained. A loca- tion does not forever devote to the use of a company a, particular place in the streets, or necessarily create a monopoly of the public service. lb. 694. The foundation for confidence in street railway investment is the knowledge that the demand for convenient methods of LOCATION AND CONSTEUCTION— Con. travel must be a continuing demand, affording a permanent basis for business enterprise, coupled with the faith that fair treatment will be accorded to private interests by those in charge of public rights. lb. 695. The statute authorizes an apportion- ment of the expense of alteration of tracks between the parties as justice may require. No company can properly build a railway upon the assumption that it wUl never have to change the position of its tracks. lb. 696. It has been contended that the pro- visions of law relating to acceptance of locations apply to cases of alteration of tracks under section 31 of chapter 112 of the Revised Laws. [1906, 463, Part III, § 65.] Such a construction would destroy the usefulness of this section, and seems inconsistent with the evident pur- pose of the statute. lb. 697. It has been contended that the pro- visions of section 32 of chapter 112 of the Revised Laws [1906, 463, Part III, § 66] requiring the board of aldermen ih re- voking a street railway location to state in its order the "good and sufficient rea- sons" for its action, was not complied with in this instance. It was intended that the real reasons actuating the Board in a case of this kind should be made a part of the record. This was done here; but, as we must decline to approve the order as to part of the location, it follows that we must decline to approve the relo- cation and the revocation of location of the tracks of the other companies. /6. Abutters' Protests. {Under 1898, 578, § IS.'^) 698. As long as the street railway is one of the approved uses of a highway, the travelling public as a whole must be con- sidered, and the many be granted con- veniences at some sacrifice to the few. We know of no other rule to apply in dealing with these questions. Milton St. Ry. Co., pet'r, 1904, 92. 1 Recommended by committee on the relations between street railway and municipal corporations (see report, 1898, p. 25), and repealed by 1906, 463 (see report of joint special committee on railroad and street railway laws, p. 124, and 1906, 463, Part III, § 7). 80 LOCATION AND CONSTRUCTION. LOCATION AND CONSTRUCTION— Con. 699. If this enterprise could be defeated on account of the opposition of certain owners of abutting estates, who are naturally hos- tile to a location in the street upon which they reside, the same rule must be applied in other cases. This would mean an end of further extension of street railway serv- ice, a result which would not grieve all of our citizens, but which would manifestly be one inconsistent with the general public interest. rb. 700. The Board has been asked to determine questions of law and fact affecting private title by prescription as against the public rights in this highway. We do not believe that we can be properly called upon to go into these matters in this proceeding. We shall assume that the boundary lines of the highway have been duly established. Ih. 701a. It was claimed that the report pre- sented at the town meeting, as descriptive of the proposed reserved space, was de- fective, for the reason that it was in part a plan and not written words. The plan was as good if not a better method of furnishing the desired information than written words would have been, and we do not believe that so technical an objec- tion as that made should have any weight. lb. LOCATION AND CONSTRUCTION— Con. 7016. For decisions decided upon particular facts, under 1898, 578, § 13 [R. L. 112, § 7, now 1906, 463, Part III, § 7], see Brockton Citizens v. Brockton & Whitman St. Ry. Co., 1899, 238. Newton Citizens v. Commonwealth Avenue St. Ry. Co., 1900, 220.1 Fall River Citizens v. Fall River Shore Line St. Ry. Co., 1901, 262. Pittsfield Citizens ». Pittsfield Electric St. Ry. Co., 1901, 263. Leominster Citizens v. Fitchbnrg «fe Suburban St. Ry. Co., 1901, 264. Maiden Citizens s. West End St. Ry. Co., 1901, 273. Templeton Citizens v. Templeton St. Ry. Co., 1901, 276. Winthrop Citizens v. Revere & Winthrop St. Ry. Co., 1902, 181. Andover Citizens v. Lawrence & Reading St. Ry. Co., 1902, 182. See aho Union St. Ry. Co., pet'r, 1904, 116. Maplewood & Danvera St. Ry. Co., pet'r, 1905, 58; 1906, 133. Under 1902, 399 {now 1906, 463, Part III, 702. An examination of the conditions and restrictions under which street railway locations have been granted shows a range of grant from that in the nature of gift to that upon conditions calling for ex- traordinary expenditures by the company. Grants to the same railway are often radically unlike in the different towns through which it passes. In one , the local board relying upon the right to demand 1 In connection with this case, see Daniels v. Com. Ave. St. Ry. Co., 175 Mass. 518. 2 In acting under the provisions of chapter 399 of the Acts of 1902 (1906, 463, Part III, § 7) the Board of Rail- road Commissioners makes the following requirements a condition of approval of locations granted to street rail- way companies: — Every location must be accompanied by a plan showing the place in the highway to be occupied by the railway, including turnouts, and by trolley poles. The plan should also give grades and street lines and such other in- formation as may be practicable. [A street railway company petitioning the Board for approval of a location, or an extension, alteration or revocation of a location shall accompany its petition with a plan indicating in red the alignment and grades of tracks and position of poles on such location or extension, alteration or revocation of location. Said plan shall be of such scale as will clearly show the grades, cxuves, and locations of all poles, and shall have marked upon it degrees of curvature or radii of all curi'ee, gradients in percentages, and elevations of all points where the gradient changes. Plans not to exceed 20 x 30 inches in size are desirable for the purpose of filing. Circular, January 11, 19ll.] The following conditions shoiild be attached to grants of location; — 1. The rails to be not less than sixty (60) pounds per yard in weight. 2. Ties to be of suitable timber not less than seven (7) feet in length, six (6) inches thick, with six (6) inches face, and spaced not more than two (2) feet on centres. 3. The roadbed to be constructed with at least eighteen (18) inches of suitable ballast below base of rail, and properly drained. 4. The railway to be continuously on one side or in the centre of the driveway when circumstances permit, and wherever practicable to be separated from the driveway, in all cases the clearance from rail to any obstruction to be at least four and one-half (4V^) feet on tangents and more in proportion on curves. 5. The roadway independent of the railway to be of sufficient width to properly accommodate other travel. 6. Crossings of railway from one side to the other of the highway to be avoided, but if permitted, only with provision for proper regulation respecting the operation of cars and restriction of speed. These requirements are not to exclude other suitable conditions and restrictions by local boards or by this Board as the circumstances in particular cases may require. LOCATION Am) CONSTRUCTION. 81 LOCATION AND CONSTRUCTION— Con. future returns in accommodations and low fares may give the use of the streets upon liberal terms; in another, the local board, distrustful of the future and think- ing it best to secure at once full compensa- tion for all that it gives, imposes upon the same company heavy expenditures as a condition of the right to use its streets. As railways have become more interurban in character, the need of greater uniform- ity in respect to conditions and restrictions attached to grants of locations is apparent. 1902, 54. 703. Chapter 399, Acts of 1902, (1906, 463, Part III, § 7), does not in our opinion require the Board to review and reweigh every detail considered by the selectmen in granting a, location. The decision of the selectmen upon all matters of purely local concern may well be left undisturbed as the judgment of men in closer touch and better qualified to deal with such issues. It is only when the local action runs contrary to a general law or conflicts with a sound State policy that we are called upon to interfere. Hartford & Worcester St. Ry. Co., pet'r, 1904, 81. 704. The contention of the petitioner that the competing street railway company has no standing at present before the Board cannot be allowed. The right to offer any fact or suggestion pertinent to an inquiry concerning the public interests cannot be denied any person or corporation simply because the purpose in offering it may be a selfish one. 705. The most liberal view of the power of selectmen to perfect or amend their action cannot cover a grant which is beyond the scope of an original petition.^ lb. 706. It is suggested that the words "street railway company" in section 31, chapter 112, Revised Laws (1906, 463, Part III, § 65), exclude a company in process of organization. But it is to be noted that in the bill reported by the special com- mission,'^ and which is the framework of this statute, the same words were used in LOCATION AND CONSTRUCTION— Con. the section which relates to original grants of location. Although in enactment words expressly including a company in process of organization were inserted in that sec- tion, there is little reason to believe that the faUure to insert them in certain other sections has any particular significance. The context controls in all these cases. lb. But see Whitman & 1900, 139 (infra). Plymouth Co., pet'r, See Articles of Association; Connecting Loca- tions. 707. It is the general policy of the Board not to approve a double track railway in a city street that is not wide enough to afford standing or passing room for a carriage between the curbstones and the nearest rail. Occasionally exceptions are made to this rule, but only in instances where all interested parties assent or the need of additional railway accommodation is im- perative and conditions are such as to preclude the widening of the street or the selection of any other street or private right of way. Union St. Rf. Co., pet'r, 1904, 116. 708. The more serious objection to the Union street location lies in the fact that this street between Sixth and Ash streets is unsuited for a double track railway to be used in this combined interurban and local service. On neither side would enough room be left to permit the passing or standing of carriages in safety between the track and the curbing, a fact that at times would discommode and imperil those who were rightfully using the street. In the interest of the safety and convenience of the travelling public the Board believes that it ought not to approve a double track railway under existing conditions. Union St. Ry. Co., pet'r, 1906. 709. The location provides that a violation of any one of the many conditions imposed upon the company shall work the immedi- ate forfeiture of all rights in the street. This is contrary to the general law, which provides an effective and at the same time a just method for revoking street railway locations whenever the public good re- 1 See Springfield v. Springfield St. Ry. Co., 182 Mass. 41; Worcester c. Worcester St. Ry., 182 Mass. 49. 2 This is a reference to the report of the special committee on the relations between street railway and munic- ipal corporations, Hens. Charles Francis Adams, William W. Crapo and EUhu B. Hayes, appointed by Gov. Wolcott, which reported in 1898. Its ideas were embodied in 1898, 578, and later included in R. L. 112 (now 1906, 463, Part III) (excepting its definition of the terms "railroad" and "railways," now appearing in 1906, 463, Part II, § 1 and Part III, §1). 82 LOCATION AND CONSTRUCTION. LOCATION AND CONSTRUCTION— Con. quires it. No location which controverts a State policy wisely established by the legislature for the protection of public rights can be said to be consistent with the public interests. Springfield Suburban St. 1904, 112.1 Ry. Co., pet'r, 710. The operation of street railways in the larger municipalities has shown that the traffic within city limits can be handled with greater success and greater safety by one than by several companies. It will not do, however, for a company which receives the privileges of a monopoly to forget the obligations which go with them. The public in such case can look to the one company only for needful extensions and additional accommodations. In re- sponse such company must be quick to meet all reasonable demands. When it undertakes to perform the entire public service it must carry out the task. lb. 711. A monopoly in local street railway serv- ice under proper supervision should give the public a better service than the efforts of contending companies, not infrequently struggling to keep alive enterprises which ought never to have been undertaken. Under our laws such a monopoly is founded upon statutes which protect the public in- terests by making street railway locations not only subject to supervision but sub- ject to revocation for cause; practically, therefore, dependent upon the good be- havior of the company receiving them. lb. 712. A prosperous street railway in the hands of a progressive management should furnish rapid transit and prompt service, and meet all legitimate demands therefor in a spirit of co-operation. Such a com- pany best fulfils its functions as a servant of the public by anticipating reasonable requirements for increased facilities for transportation. Springfield, pet'r, 1909, 241. 713. Although counsel have contended for a different construction of this statute, we believe that it means that no certificate should be issued under it in any case where it appears that the construction of a proposed railway is detrimental to the LOCATION AND CONSTRUCTION— Con. general welfare for any reason. Under this rule the character, the usefulness and the effect of an enterprise are subjects of inquiry. Maplewood & Danvers St. Ry. Co., 1905, 58. 714. If it were clear that a contemplated railway would never pay operating ex- penses, or that the parties interested in it were unfit to exercise the franchise, or that the capital necessary to carry it out could not be secured, it would be our duty to refuse a certificate, and so prevent the encumbering of streets with useless tracks, or the exploiting of a mere paper scheme for idle or illegitimate ends. lb. 715. So, too, if an enterprise had for its object merely the introduction of a new competitor into a field that is already occupied, we would refuse our certificate upon the ground that the usual fruit of such competition is at best only a transi- tory gain, which is outweighed by the permanent disadvantages that follow. On the other hand we are not called upon to prevent private capital from taking the risks involved in an enterprise which from the standpoint of the public promises a new and substantial service. lb. [See also No. Brookfield, pet'r, 1905, 19 — Accommodations, I.] 716. A condition which requires that a com- pany keep any part of the street in repair is in direct conflict with the general law.^ lb. 717. A condition which predetermines the schedule time of cars, the character of accommodations, or rates of fare, is objec- tionable for the reason that the general law provides other methods to protect the public interests as they arise from time to time. lb. 718. A condition which fixes for all time the location of a structure, such as a car bam or power plant, is against a sound public policy for the reason that such structures should be maintained where, in connection with the development of a system, experi- 1 Worcester v. Worcester Cons., 192 Mass. 106. A street railway company by complying witli the terms of a condition imposed by ita grant of location from the aldermen of a city does not lose the right to contest the legality of the condition. ' See Hyde v. Boston Elevated Ry. Co., 186 Mass. 116; Boston v. Boston Elevated Ry. Co., 186 Mass. 274; Dun- bar et al. V. Old Colony St. Ry. Co., 188 Mass. 180. LOCATION AND CONSTRUCTION. 83 LOCATION AND CONSTEUCTION— Con. ence may show that they will best con- tribute to the eflacienoy of the service. lb. 719. A condition which may work the for- feiture of a location after the railway has been built upon it, without a hearing of parties interested or in a, manner con- trary to the general law providing for revocation of rights, is plainly improper. lb. 720. Street railway termini named in an agreement of association are subject to greater uncertainty than the termini of a steam railroad. The variation between the northerly terminus . . . described in the agreement of association and that afterwards established is unimportant. lb. 721. The attempt to enforce as a contract a condition by which the company ought to be bound does not make the location objectionable. As an effort to alter the legal status of the parties it is probably in- effective. 76. [But see Springfield St. Ry., pet'r, 1906, 139, infra.] 722. A company may well be asked in some instances to make good the encroachment of a railway upon the other uses of an ex- isting highway, and so to bear the expense of widening and improving it. In other instances it would be unjust to those who support the railway by fares to require an investment of railway capital in street improvements. lb. [See Marion et al. v. New Bedford & Onset St* Ey. Co., 1905, 11 — Fares and Freights, VI. 723. A requirement that the poles of a company shall support wires used in other public works under conditions which pre- vent impairment of the street railway serv- ice, and which do not impose an unrea- sonable burden upon a company, is un- objectionable. lb. 724. The powers of boards of aldermen in granting street railway locations are ex- pressly defined by statute; when a. grant has once been formally made, and the company has filed with this Board its petition for a certificate, it is too late for the aldermen to rescind their action with- out the consent of the company. There would seem to be still less authority for LOCATION AND CONSTRUCTION— Con. one board to revoke the action of its pred- ecessor, even though it be admitted that such boards are for certain purposes con- tinuing bodies. Pittsfield Electric St. Ry. Co., pet'r, 1905, 61. 725. It is claimed that three of the petitions for location were filed in 1902 and that no action upon them could be taken in the following year. Again, it is claimed that the company having neglected to present plans at the public hearing, and the com- mittee to which the petitions were referred having failed to report upon them, the aldermen had no authority to pass the order granting the locations. We rule, to the contrary, that the aldermen of 1903 had the right to treat the petitions filed in 1902 as properly before them; that while it is desirable that plans be presented at public hearings of this character there is no law requiring it ; and that a board may lawfully dispense with the services of its own committee ; indeed, in this case could not well do otherwise, as the committee consisted of two who would not agree. 75. 726. The orders provide that as to any part of the locations which shall not have been constructed and put in use on or before December 1, 1904, the grant shall have become void. This is essentially unlike the objectionable forfeiture clause in the Springfield grant [see ante], as it conflicts with no statutory process better adapted to secure the public interests. 76. 727. It has been our practice to request that pole locations in city streets be determined by local boards before the issue of a cer- tificate, even though it be claimed that they are incidental to the track locations. 76. 728. The selectmen of Auburn, fearing a diversion of travel from the existing line of the Worcester and Webster railway and a consequent loss of accommodation for their townspeople, undertook when grant- ing locations to prevent this by attaching to these locations conditions intended to defeat any attempt at building such a connecting link as the location now before us. We doubt the right of selectmen to stop the development of transportation facilities both within and without their borders in this way, but we recognize at the same time the right of the selectmen and of the townspeople to ask that their 84 LOCATION AND CONSTRUCTION. LOCATION AND CONSTRUCTION— Con. interests in the existing line of railway be properly protected. Worcester & Webster St. Ry. Co., pet'rs, 1905, 63. 729. We have been asked by counsel for remonstrants to rule that the petition upon which the board of aldermen acted was not in proper form. The petition was presented in the name of the company under authority of a vote of the board of directors. This seems to us to be a proper compliance with the statutes, and the ruling requested must be denied. Newton St. Ry. Co., pet'r, 1906, 138. 730. In determining its own course of pro- cedure, the Board has required the filing of new petitions, with public notice and hearing, as a prerequisite to the further consideration of these locations, but has not believed that it should dictate to local boards what course they should pursue in this respect. Maplewood and Danvers and HaTerhill & Boxford St. Ry. Cos., 1906, 133. 731. It is claimed by opposing counsel that the previous action of the Board was equivalent to a declaration that the loca- tions were not consistent with the public interests and that thereupon the locations became void, so that the subsequent action of the different local boards in making changes without public notice and hear- ing was illegal and of no effect. . . . The Board decides that for the purpose of this proceeding it will consider the locations to be properly before it, leaving to the courts the determination of the legal status of the various grants. 76. 732. Nine boards of aldermen and selectmen have declared that the public necessity and convenience called for the building of the proposed railways. As we interpret the law, it is not within the province of this Board to overrule the decisions of the city and town boards upon that question unless it clearly appears that they are radically wrong from the standpoint of the larger public interests. The words "consistent with the public interests" were deliberately selected as a phrase of the broadest scope and yet of a character which would not sanction the exercise of a veto power over public boards and the setting up of a barrier to enterprise, unless the public good plainly demanded it. lb. LOCATION AND CONSTRUCTION— Con. 733. The petitioner, though formally asking approval of both these locations, has ap- parently distinguished between its obliga- tion to fulfil the terms of the Springfield grant and its duty in respect to the Chico- pee ^ant. The Board cannot, however, favor one location above the other nor aid the company in accepting one and declining the other; and therefore, in view of the attitude of the company toward the conditions imposed in the Springfield case, the right of the aldermen of Ghioopee to impose similar conditions will be as- sumed for the purposes of this proceeding notwithstanding the suggestion that this is an extension of an existing railway and not an original location. Springfield St. By. Co., pet'r, 1906, 140. 734. The statute gives to the aldermen and to the selectmen full power to attach proper conditions to grants of street rail- way locations without submitting them to public criticism. The right to change these conditions in furtherance of the public interest without public notice and hearing would seem to follow. Maplewood & Danvers St. Ry. Co., pet'r, 1906, 71. 735. Provisions relative to removal of snow, regulation of speed of cars and use of tracks kre objectionable for the reason that the general law deals specifically with these matters. lb. 736. Street railway locations are revocable grants of privileges in the highways and the Board cannot approve any attempt to create a different relation between the company and the public than that author- ized by the statutes as interpreted by the court. If there is any reason why the principle of revocable rights granted under the statutory restrictions should be abandoned, the change should be brought about through action of the legis- lature and not through requirement that the company enter into what appears to be a contract with the city.^ 76. [But see Maplewood & Danvers St. Ry. Co., 1905, 58, supra.] For a decision conditioned on construction of branch lines, see Lowell & Fitchburg Co., pet'r, 1907, 164. 737. Conditions which impose new burdens upon any prior location, or which attempt ^ See Selectmen of Gardner v. Templeton St. Ry. Co., 184 Mass. 294. LOCATION AND CONSTRUCTION. 85 LOCATION AND CONSTRUCTION— Con. to deal with the repairs of streets or with fares are unauthorized. B. & W. Co., loo. in WeUesley, 1907, 150. 738. Conditions which are inconsistent with the general law and State policy in re- spect to use of tracks, methods of opera- tion or the supervision of the state board are an interference with principles adopted to secure proper protection and accommo- dation for a travelling public larger than that of any one city or town. lb. 739. The requirement that highway work shall be performed "to the satisfaction of the selectmen" may permit unreason- able demands by selectmen. However, in passing from time to time upon the demands which selectmen make under these grants the Board adopts the rule that what is reasonable is all that they ought to ask. . . . We question whether companies are likely to suffer any sub- stantial injustice from the fact that as a matter of law local boards may be their own judges as to what is satisfactory in respect to street work. There is force, too, in the argument that the possession of this arbitrary power by selectmen tends to lessen rather than increase liti- gation. Upon the whole the probable good fairly outweighs the possible evil. lb. 740a. One condition relates to the reim- bursement of the town for the expense, apportioned against it by act of the leg- islature, as the contribution of WeUesley to the cost of changing the bridge at the boundary line between that town and Newton in connection with Metropolitan Park improvements. The claim for re- imbursement rests upon a general pro- vision in the original grant of location re- lating to the widening and strengthening of bridges. If the claim of the town is warranted it must be assumed that it can be enforced in other ways than through the condition imposed upon this reloca- tion. The approval of the relocation with this condition a part of it would go far toward approving the expenditure as a basis for charges against the travelling public. 76. 7406. While it is not the function of this Board in passing upon grants by munici- pal authorities for the location of street LOCATION AND CONSTRUCTION— Con. railway tracks in a highway to refuse its approval upon the suggestion of remote possibility of accidents, the situation here is such that we are reluctant to give our consent, for the reason that a much better method of relieving the present conges- tion of street railway traffic is found in an extension of the proposed double tracks in a westerly direction to a point at or near the foot of the grade. O. C. St. Ry. Co., pet'r, 1912, 248. Upon Private Lands. 741. The, electric car, moving over private land or >•■ way of its own, approaches a highway under practically like conditions with the railroad train. Where such cross- ings can be avoided at an expense not too burdensome this should be done. It is better to pay the cost of safe construction at the outset than to meet the greater cost of changes in the future. 1902, 36. 742. A "street railway" was defined in chapter 578, Acts of 1898, as a railway "constructed on, in, under or above the public highways or streets." A street railway is now defined in section 1, chapter 111, Revised Laws (now 1906, 463, Part III, § l), as a railway "usually constructed in, under or above the public ways and places."' Section 65, chapter 112, Revised Laws (now 1906, 463, Part III, § 13), authorizes construction upon private lands in order to avoid an existing grade crossing of highway and railroad. Section 9, chapter 112, Revised Laws (now 1906, 463, Part III, § 43), authorizes the construction of street raEways upon private lands for the purpose of avoiding grades and curves, and other purposes "incidental to the use of the public streets." Chapter 476, Acts of 1903, (now 1906, 463, Part III, § 46), empowers a street railway company to take land in the exercise of the right of eminent do- main in order "to avoid dangerous grades or curves existing in the highway," or for "other similar purposes incident to" operation in public ways. In passing upon several cases which have recently arisen, the Board has ruled that where no heavy grades, sharp curves or other physical con- ditions make the highway unfit for use by a railway, and where the only purpose in departing from it for long distances is to obtain a more direct route and an oppor- 1 The leading in 1906, 463, Part III, §1, aubstitutea the words ' and places " for " uaually constructed in, under or above," etc. usually constructed upon the public ways 86 LOCATION AND CONSTRUCTION. LOCATION AND CONSTRUCTION— Con. tunity for higher speed it cannot properly approve construction on private lands. Such use of private lands is not fairly "in- cident to the use of the highway," or within the purposes of the statute; and the Board therefore has no authority to ap- prove it, no matter how meritorious the undertaking. 1904, 39. For approval of relocation of one company's tracks on the petition of another company, see Worcester & Providence, pet'r, 1912, 254. Under R. L. 112, § 9 {now 1906, 463, Part ni, § 43). 743. However unrestricted the right to build and operate street railways apart from the highway may have been prior to the passage of the above statute, street railways organized under the general law can now be constructed over private lands only for the purpose of avoiding grades and curves, or for other purposes "inci- dental to the use of the highway." Springfield Suburban St. Ry. Co., pet'r, 1904, 112. 744. The proposed railway passes for two and a half miles over private lands in Springfield, admittedly not to avoid grades or curves, but to secure a direct route for quick service and high speed. It takes to the highway only as it ap- proaches populous centres. This depar- ture for long distances from the highway would seem to be for railroad rather than street railway purposes. Apparently the highway and private lands have been used in furthering this enterprise whenever either best served the purposes of the promoters, the use of neither being "in- cidental" to the use of the other. lb. See also Stockbridge Selectmen, pet'rs, 1903, 188. 1905, has.. 745. The grades in the highways of Pitts- field upon which a location was granted under the order of the aldermen dated December 30, 1904, though not absolutely prohibitive, are so heavy that no company should be permitted to operate its railway over them unless it appears that it is im- practicable to construct on private lands. Legislation to permit the construction of street railways in part upon private lands has been enacted to meet just such cases as this. We cannot certify that this loca^ LOCATION AND CONSTEUCTION— Con. tion in the highways is consistent with the public interests. Pittsfield Electric St. Ry. Co., pet'r, 1906, 138. Connecting, or "Missing Link" Locations. Under R. L. 112, § 11 (now 1906, 463, Part III, § S2).' 746. The meaning of the term "street rail- way company" is defined in the first sec- tion of the act in question [1898, 578, see 1906, 463, Part III, § 1] as follows: "In the construction of this act, unless such meaning would be repugnant to the con- text, . . . 'street railway companies' and 'companies' shall mean all corporations, persons, partnerships or associations con- structing, maintaining or operating street railways," with an exception not here material. The petitioners concede that they are not "constructing, maintaining or operating" a street railway. The asso- ciation which they represent has not as yet reached the point where it can lawfully commence such construction. Whatever the framers of the statute may have had in mind, the intent of the Legislature can be learned only from the language and definitions of the act. The act explicitly defines what the words "street railway company" shall be taken in the construc- tion of the act to mean. We cannot prop- erly enlarge the scope of our powers by constructively giving to those words a meaning which is broader than the express definition of the statute itself. For these reasons the Board declines to entertain the petition in this case. Whitman & Plymouth St. Ry. Co., pet'rs, 1900, 139. [But see Hartford & Worcester St. Ry. Co., pet'r, 1903, 161; and 1904, 81; also Waltham Co., pet'r, 1902, 79 and Millbury, etc., pet'r, 1904, 91 {supra)-] 747. We find, as a matter of fact, that the selectmen did not either grant or refuse the location within three months after the filing of the petition. We are also of the opinion that the Board would have juris- diction had the grant of location been made within the statutory time. The literal wording of the statute supports this construction, and it is easily conceivable that the Legislature may have had in mind cases where a, grant of location is accompanied by conditions which make it equivalent to a refusal of location, and this without bad faith or improper con- duct on the part of anybody. Greenfield, Deerfield & Northampton St. Ry. Co., pet'r, 1903, 178. ■ See West Springfield St. Ry. s. Bodurtha, 181 Mass. 583. LOCATION AND CONSTRUCTION. 87 lOCATION AND CONSTRUCTION— Con. 748. The selectmen, after protracted hear- ings, declined to grant crossings at grade over the Parkerville, Central and Ceme- tery roads, so-called, as requested by the company, but required the railway to pass under these ways. These locations are now presented for approval upon petition of the selectmen. The company, on the other band, having refused to accept these locations, has presented its petition to the Board for a connecting location under sec- tion 11, chapter 112, Revised Laws [1906, 463, Part III, § 32]. The two petitions have been heard together by consent of parties. The company contends that the railway should cross these highways at grade, as that method of construction in- volves the least cost and gives the best grade for operation. The selectmen and others remonstrate against this as unsafe and contrary to the best public policy. In our opinion the cost of avoiding the dangers of construction at grade at these points, though considerable, is not such as to make it an unreasonable require- ment, in view of the character of the serv- ice which the company proposes to per- form. Southborough selectmen and Boston & Wor. St. Ry. Co., pet'ra, 1904, 104. See also Waltham St. Ry. Co., pet'r, 1903, 192. For decisions, based on particular facts, as to connecting locations, see Gardner, Westminster & Fitclibnrg St. Ry. Co., pet'r, 1899, 238. East Taunton St. Ry. Co., pet'r, 1900, 222. Essex County St. Ry. Co., 1902, 185. Hartford & Worcester St. Ry. Co., pet'r (Ox- ford), 1903, 161; 1904, 101. See also Waltham St. Ry. Co., pet'r, 1903, 96. Temporary Locations. 749. Local authorities are empowered to grant, by the provisions of chapter 266 of the Acts of 1908, subject to the approval of this Board (or this Board is authorized to grant, in case of the failure of local authorities to act), temporary locations when a bridge upon which a street rail- way company is authorized to lay and use tracks is being or has been altered, rebuilt, improved or repaired. 1910, 66. Relocalion. 750. For a case where the Board declined to approve an order relocating street railway tracks, where the local board had inad- vertently neglected to reimpose conditions attached to the original grant, see Commonwealth Avenue St. Ry. Co., 1904, 94. LOCATION AND CONSTEITCTION— Con. 751. For a petition, decided on its facts, for relocation of tracks, see Williston, pet'r, 1872, 217. See also Waltham St. Ry. Co., pet'r, 1903, 67. 752. For action of the Board under 1906, 403, Part III, § 65, requiring amendments in selectmen's grant as a prerequisite for approval by the Board, see Amesbury Selectmen in re tracks of Haverhill & Amesbury Co,, 1911, 226. Extension of Franchise. {Under R. L. 112, § 92 (now 1906, 463, Part III, § 31).) 753. Under the provisions of law due notice has been given and hearings held upon the single issue of finally fiidng and determin- ing a route for the Boston Elevated rail- way. The Board, prior to its finding of May 1, made a very complete and careful study of the whole area in Maiden within which the statute limited the terminus of the route. In this investigation full con- sideration was given, not only to the loca- tions suggested by the company and the city, but also to other locations, later advo- cated by the petitioners in their applica- tion for rehearing. Our action must be controlled solely by the statute rule, — ■ "having in view all public interests." Maiden v. B. E. Ry. Co., 1910, 193. 754. The statute reads that a company shall have "constructed" its railway in some city or town, as a condition precedent to extension into an adjoining city or town. We think this word calls for neither an absolutely finished construction in every detail, nor a construction merely sufficient to show the good faith of the company, but rather a substantial construction, which shows a railway completed in all respects essential to readiness for operas tion. A railway, for example, may be incomplete as to a crossing over a rail- road, pending a decision as to the manner of crossing; but, as it can be readily oper- ated by change of cars, it may fairly be considered "constructed" within the meaning of the statute. Waltham St. Ry. Co., pet'r, 1903, 96. 755. We are asked to rule that the railway must be actually constructed to the bound- ary line of the town into which admission is sought, before the right is given to enter such town. If this work is a part of the original undertaking, it must, under the rule just stated, be substantially com- pleted. If, however, construction to the- LOCATION AND CONSTRUCTION LOCOMOTIVE ENGINES. LOCATION AND CONSTRUCTION— Con. boundary line involves the building of an ' extension of the railway, we believe there is no need that this should be done before bringing a petition under the statute. A company with an established railway in one town should know whether it can secure a location in the adjoining town before it builds a branch solely to connect with it. lb. 756. It would be idle to give a right of exten- sion into Lincoln, unless there is a way open to the company by which it can reach Lincoln. The only way contem- plated is through Weston. This is now closed under the action of the selectmen, with apparently no prospect of any change of mind on their part. If their action is proper, the petitioner has no use for the right of extension into Lincoln, To deter- mine in this proceeding that the selectmen were not justified in their action would be to decide an issue which can properly come before the Board only under a different statute [see R. L. 112, 11 (1906, 463, Part III, § 32)], — one under which the petitioner proposes to take its next step, in case of favorable action upon this petition. lb. 757. The petitioner claims the right of ex- tension under section 88 of said chapter [now 1906, 463, Part III, § 54], which declares that a "purchasing company shall have the powers and privileges of the ■company selling." We cannot agree, however, that the mere right to apply under section 92 [1906, 463, Part III, § 31] for authority to extend a railway is a, "power or privilege" which passes to the petitioner as a "purchasing company" within the meaning of section 88. Section 92 as a statute giving jurisdiction to the Board must be construed strictly. We ital adds nothing to, and a smaller capital takes nothing from, the intrinsic value or the earning capacity of the plant. The real value finds its expression, as every one knows, in the rate and regularity of the dividends and in the market value of the shares. Interstate Consolidated St. Ry. Co., pet'r, 1896, 165. STOCK AND BONDS — Con. 859. When, therefore, it becomes necessary under St. 1894, 462 [1906, 463, Part III. § 107], to determine the amount of stock and bonds which is "reasonably requisite" [lb, "reasonably necessary"] for the pur- chase of the railway properties in question, it seems to be clear that the Board can properly authorize only such an amount as equals at par the cash actually paid on account of their acquisition, or, in other words, their actual cost. It would be an anomaly to sanction under one statute a larger amount of securities than imder other statutes could be lawfully issued. lb. 860. In considering the original cost of the Western Massachusetts street railway, the Board was convinced that the figures presented by the company were in excess of the amount which ought to stand as the capitalized cost of construction and therefore declined to approve the issue of the full amount of stock and bonds which the company had authorized. The pro- posed consolidation of this railway with the Woronoco street railway affords an opportunity for placing the cost of con- struction of the united properties upon a proper basis, and in compliance with the request of the Board the company has cancelled a large amount of outstanding indebtedness to the Western Massachu- setts company as a step preliminary to the approval of the consolidation. Western Mass. Co. et al., pet'rs, 1908, 146. For an approval of stock issue, conditioned on cancellation of outstanding floating indebtedness, see Wor. & Southbridge St. Ry. Co., pet'r, 1906, 186. 861. For discussions of anti-stock-watering laws, see 1898, 119; 1901, 93. Under R. L. 1^6, § 11 (now 1906, 483, Part III, 158). 862. The purpose of this law seems to be to prevent a foreign corporation from exert- ing a, commanding influence toward the payment of large dividends by domestic companies, in order to help out the neces- sities of a situation created by its own issues of securities. The statute aims at safeguarding the public interests, which in respect to street railways are protected by the statutory limits upon their dividends; the restriction upon their issues of capital 1 R. L. 112, § 26, 187 Mass. 536. Leonard ». Draper, own stock. The prohibition contained in R. L. 112, § "A street railway company may purchase shares of its 6 relates to the stock of other railway companies." STOCK AND BONDS STEEET RAILWAY. 103 STOCK AND BONDS — Con. stock and bonds to the actual and proper eost of the railway property; and a super- vision over operation which gives no heed to stock ownership. Report to Legislature, N. H. Traction Co., inv., 1904, 67. 863. If this statute means that no foreign corporation which owns a controlling num- ber of shares in the stock of a domestic company can, without risking the charter of such company, issue a note or bond, for the reason that such note or bond must be considered as based upon the Massachu- setts stocks, no matter how small a part of the entire assets of the company such stocks are, and no matter how great the responsibility and credit of the company independent of such ownership, and how strong the protest that the note or bond is given or accepted in disregard of such ownership, — then the company has plainly jeopardized the charters of five Massachusetts companies, as it owned controlling interests in their stocks at the time when it issued its own bonds and notes. lb. 864. If, however, the statute applies rather to issues that have either been actually secured by pledge, mortgage or lien, or have been actually made with reference to or in reliance upon the credit due in whole or in part to the ownership of Massachu- setts stocks, then the character of the issues by the company is to be determined by the accompanying circumstances, — the agreements between the parties in interest explaining the plan for purchase of these stocks, the statements which pre- ceded the issues of bonds, the wording of the securities and instruments securing them, and the condition of the company in respect to assets and liabilities at the time. Ih. See also 913. Under 1908, 636. 865. Chapter 636 of the Acts of 1908, ap- proved June 13, provides that any rail- road, street railway, electric railroad or elevated railway company in actual pos- session of and operating a railroad or rail- way shall, upon any increase of its capital stock, excepting when said stock is offered for sale at public auction, offer the new shares proportionately to its stockholders at such price not less than the par value thereof as may be determined by its stock- holders. The act provides that the Board shall refuse to approve any particular STOCK AND BONDS — Con. issue of stock if in its opinion the price fixed by the stockholders is so low as to be inconsistent with the public interest. 1910, 62. 866. In passing upon the first petition filed under its provisions the Board found the price fixed by the stockholders so low as to be inconsistent with the public interest, holding that the phrase "so low as to be inconsistent with the public interest", un- doubtedly difficult of exact definition, must in coimection with the legislative act of 1908 be taken to mean in any spe- cific case an issue price materially lower than a price which would assure a ready market for the issue. lb. See also Street Railway, I. STOCKHOLDER. See Stock. See also 89, 93, 233, 237, 404-il2, 468, 578, 592, 865, 866. STOCK WATERING. See 1898, 119. STOP-OVER. For stop-over privileges on hundred-ride tickets, see 544. For baggage privileges on stop-over tickets, see 173. On transfer checks, 589. STOPPING OF TRAINS ACROSS HIGH- WATS. See 338, 341. STOPPING POSTS. Street railway. See 96. STOPS. See Accommodations, II., 877, 936, 937. Of street cars. See Accommodations, I. STORAGE. Of cars on elevated tracks. See 923. Of grain in transit. See 155. See 169, 170. STOVES. See 941. STREET. See Highway. In freight yard. See 293, 298. Railways in. See Location, V. STREET IMPROVEMENTS. Encroachment on. See 92. By railways. See Location, V. STREET RAILWAY. See 79-93,670-759. See ako the various titles. I. Powers of Companies. II. Opekation. III. Joint Use op Tracks. IV. Speed op Cars. V. In General. I. PowEBs op Companies. 867. Public Statutes 113, § 18 [R. L. 112, § 26, now 1906,463, Part III, § 33], author- 104 STREET KAILWAY. STREET RAILWAY — Con. izing every street railway coropany to purchase and hold such real and personal estate as may be necessary or convenient for the operation of its road, does not authorize a company to purchase land to be contributed to the widening of a street, especially when no part of such land is used as a location for the tracks. West End St. Ry. Co., pet'r, 1888, 19, 166. 868. Whether a street railway company can legally purchase land outside of streets for the purpose of constructing its tracks thereon [see R. L. 112, §§9 and 29, and 1903, 476, now 1906, 463, Part HI, §§ 42, 43, 46; see also 1910, 551], or whether a company can join with a city or town in paying the expense of the construction of a bridge over which a location has been granted to it, — gucere. lb. 869. The power of the aldermen of a city or the selectmen of a town, under P. S. 113, § 7 [1906, 463, Part III, § 7], to grant a location to a street railway company under such restrictions as the interests of the public may require, necessarily im- plies power on the part of the street rail- way company to incur such expenditures as may be necessary or proper in order to comply with such restrictions. 76. 870. But the power of the aldermen or selectmen to impose restrictions does not include or imply the power to sell a loca- tion for a sum of money or other valuable consideration, or to grant a location upon condition that land shall be contributed by the company for the widening of a street, and expenditures incurred in connection with such a sale or grant cannot be con- sidered as expenses necessary to comply with the lawful restrictions of the alder- men or selectmen.- Ih. 871. The implied powers of a street railway company, reasonably necessary to carry into effect the purposes for which the cor- poration exists, were held not to authorize an expense not only unusual in its nature but extraordinary in its amount, as, an expense of S545,000 for incidental pur- poses, on a total capitalization of $544,000. lb. 872. Where it appeared that land was needed for the use of a street railway company, and could be obtained on much more STREET RAILWAY — Con. favorable terms by purchasing whole estates, it was held that such purchases were proper on the part of the directors. Welby 1). Metrop. R. Co., 1883, 118. 873. For discussions of domestic lines under foreign control, see 1898, 124; 1904, 57, see also Stock and Bonds. 874. For report to Legislature on ownership of Worcester and Southbridge, Springfield, Berkshire and other street railways, see 1906, 197. II. Operation. 875. For discussion of street railway opera- tion, with recommendations as to legis- lation on certificates preliminary to opera- tion, etc., see 1901, 90. 876. A carriage and a car rightfully in the street should be handled with reference to each other and to known conditions. A motorman has no right when crossing a street to assume that at the sound of his gong all other travel will surrender the right of way to him. On the other hand, a driver on approaching a street railway track should not forget that a car may appear at any time, with limitations upon the power to guide it and sometimes upon the power to control it. Craig Inquest Report, 1903, 77. 877. A street car should always be under such control as to enable the motorman to meet any event which he has reason to believe is likely to happen. While this rule permits rapid running over private land or in a reserved space, it prohibits high speed where a motorman is bound to know that a car has no right of way over a carriage; that there is always a chance that a driver may not seasonably hear the gong or notice the approach of the car, may not estimate distances accurately, or may not be in command of his horses at the critical moment; and where, there- fore, there is but one proper rate of speed, — a rate so slow that the car can be stopped at once if occasion should demand Ih. 878. A street railway company has a right, under municipal approval, to run an in- creased number of cars over its tracks, even if one motive is to prevent a rival having a right to use the tracks from do- ing a profitable business; but it has no right so to run its cars as to delay unrea- sonably the trafl&c of the other road, and thus to annoy its passengers. Charles River St. R. Co. v. Cambridge R. Co., 1886, 143. STREET RAILWAY. 105 STREET RAILWAY — Con. 879. A complaint by one company charging another with such obstruction is governed by P. S. 112, I 16 [now 1906, 463, Part I, § 9], and no question as to the relative rights of the rival roads, except so far as they concern the travelling public, is before the Board. n. 880. But to justify a formal recommendation by the Board it must be shown that such obstruction is practised intentionally and as part of a system ; and an occasional and unauthorized act of an over-zealous con- ductor or driver, or a casual and unavoida- ble detention, or a former practice now discontinued is not a fit subject for a for- mal recommendation. [In this case the Board informally suggested that the proper orders be given to the employees of both roads.] lb. 881. It would be unwise, in our judgment, to establish a precedent for entrusting a car operated by electricity to the sole custody of one man, and we must therefore recommend that the company employ a conductor as well as motorman on this branch. Complaint v. B. & N. St. Ry. Co., 1904, 70. 882. The joint use by two independent companies of a line of single railway track of such length as to necessitate the running of cars over it in opposite directions is, under the most favorable conditions, attended by such risk as to call for the exercise of more than ordinary care and the use of great precaution. To run a heavy modern car, loaded with passengers, at a high rate of speed upon a down grade is a questionable method of operation. Webster and Dudley accident report, 1901, 115. Signals. 883. No system of signals has yet been devised, and there is little likelihood that any will be devised, so sure in its working as to eliminate the human factor in railway operation. Marlborough collision rei)Ort, 1903, 76. 884. Inquiry shows the company seriously at fault in respect to the management of its railway. It had adopted a method of car despatching through telephones estab- lished at different places along the line. This system when properly used is a safe STREET RAILWAY — Con. one. The mistake as far as the public safety was concerned was not in the sys- tem but in the failure to provide for its proper use. As an instance indicative of the lack of appreciation by the manage- ment of the importance of the despatching department, it appears that upon the day of the accident the regular despatcher was permitted to be away from his post; and this at a time when the disarrangement of the running schedule made the work of that department indispensable. Shrewsbury accident investigation, 1904, 211. 885. The motorman at fault in this instance was employed admittedly upon the recom- mendation of an outsider, with no investi- gation of character or previous record. In his former employment he had been twice reprimanded for carelessness. It may be that these reprimands were not just. We only censure the failure of the management to look into the matter be- fore taking this man into its employ. Similar disregard of this rule was exhibited in the employment of the conductor, who was even excused from filling out the ordinary application blank. III. JoDSTT Use op Tracks. Early Decisions. 886. If an order of a board of aldennerr authorizing a street railway company to enter upon and use the tracks of another company is irregular and void, the Board has no jurisdiction, under 1874, 381, § 38 [R. L. 112, § 84^], to pass upon the ques- tion of the compensation to be paid to the company whose track is to be entered upon. Metropolitan R. Co. t. S. B. R. Co., 1883, 116. 887. It is not material that a board of alder- men acting under 1874, 29, | 12 [R. L. 112, § 77, omitted from 1906, 463], authorize a street railway company to enter upon and use the tracks of another company, without setting forth in the order that public necessity and conven- ience so require; for the granting of such an order implies a decision that public necessity and convenience require such an entrance and use. lb. 888. When a" street railway company has obtained from the aldermen of a city an 1 Omitted from 1906, 463 as obsolete. 1906, p. IX. See report of joint special committee on railroad and street railway laws^ 106 STREET EAILWAY. STREET RAILWAY — Con. order authorizing the passage of certain additional cars over the tracks of other companies in the city, the company whose tracks are so subjected to the order of the aldermen and to the resulting in- convenience is a party interested, and is entitled to appeal to the Board; and the fact that the company's motive for appeal- ing is the fear of losing business does not deprive it of its right to appeal. Cambridge E.. Co, v. Charles River St. K. Co., 1886, 137. 889. It is no argument against the granting of a petition by a street railway company for certain privileges of entry and use that other requests for further privileges will foUow. Charlea River St. R. Co. o. Boston, 1883, 137. 890. When the petition of a street railway company to enter upon and use the tracks of another street railway company has been granted by the Board on appeal, no second petition or additional notice or hearing is required for the purpose of determining the extent of track to be used and the number and routes of cars to be run. 891. Upon a petition by a street railway company for permission to use the tracks of other street railway companies in Bos- ton, the only question is whether granting the request will, on the whole, accommo- date the public, and not whether there is a necessity for the permission, or such an exigency as will justify the taking of pri- vate property without the consent of the owner. lb. Cambridge R. Co. v. Charles River St. R. Co., 1886, 137. 892. The fact, that, incidentally, one cor- poration win gain and another will' lose does not affect the decision. Cambridge R. Co. v. Charles River St. R. Co., 1886, 137. 893. Under P. S. 113, § 48 [Omitted from 1906, 463], providing for the use of the tracks of a street railway company by another company owning and operating "not less than two consecutive miles of track," a grant of authority by the alder- men of a city to a street railway company so to enter upon and use the tracks of another company is lawful, even though the particular cars so authorized do not pass over a route of two consecutive miles STREET RAILWAY — Con. before reaching the track entered upon, provided that the company so entering does own and operate at some point two consecutive mUes of track. lb. 894. The route through which a corporation can operate a street railway and receive and retain profits for the carriage of passengers in its cars is co-extensive with the limits specified in its charter. Metrop. R. Co. ». Highland R. Co., 1874, 139. 895. The granting of a franchise to operate a street railway within defined limits is a matter which rests exclusively in legisla- tive discretion; a prior charter in no way excludes the granting of a subsequent charter including the same route or any part of it. /6. Metrop. R. Co. u. S. B. R. Co., 1883, 116. 896. Where different routes or parts of routes are specified in the respective charters of different street railway cor- porations, such routes or parts of routes are the exclusive property of that corpora^ tion in whose charter alone they are speci- fied ; but where the same route is specified for two or more corporations, that route is the common property of all the corpora- tions, and no one of them has an exclusive right to its use, or to the profits on the carriage of passengers within, to, or from the streets included in it. Metrop. R. Co. v. S. B. R. Co., 1883, 116. 897. The right of a street railway corpora- tion to enter upon and use the tracks of another corporation which are situated within the franchise limits of the entering corporation, conveys to the latter rights and privileges wholly different from those conveyed by a similar power in cases where the tracks entered upon are with- out its franchise limits. In the former case, the corporation entered upon is en- titled to receive compensation for such entry and use, to be determined by ascer- taining the entire expense of the main- tenance of the track in question, including a fair interest on its original cost, and by dividing that expense between the corpora- tions in proportion to the use of such track made by each ; but the corporation entered upon, though prior in order of creation, is not entitled to receive any compensation for diversion of profits con- sequent on the operation of the entering corporation within such routes or parts of routes. 26. STREET RAILWAY. 107 STREET RAILWAY — Con. Under R. L. 11$, §§ 77, 78 (superseded by 1906, 463, Part III, § 38). 898. It has been urged that the provisions of section 78, originally enacted as chapter 278, Acts of 1888, were intended to secure safety of operation in cases of joint use of railways, and that the statute is applicable alike to cases of such use brought about under the provisions of section 77 and to those created by voluntary agreement of companies. It is not contended that while cars were drawn by horses there was any special need of safeguarding the joint use of tracks, but that the danger came with the electric equipment. At the time of the passage of this act, however, there was no railway within the state thus equipped. Moreover, there is another and a distinct end which this statute serves, apart from any such purpose, as one of a number of laws enacted to make local action against the will of companies subject to supervi- sion by a state board. The word ' ' author- ity" in this section is in itself significant, both in view of its natural meaning and of the fact that it is the word used in the section which provides for proceedings before local boards. Lowell & Pelham St. Ry. Co., pet'r, 1904, 86. 899. Whatever significance may attach to existing provisions of law relating to joint use of tracks, it is well known that the legislature has repeatedly refused to enact any statute that would authorize compul- sory enforcement of a joint use of electric equipment and motive power. We cannot approve an attempt to compel by indirec- tion such joint use. Waltham St. Ry. Co., pet'r, 1902, 77. 900. The authority granted to a company to use the tracks of another company should not be approved unless we believe its exercise would be consistent with the public interests. To reach an opinion upon this, it is necessary to inquire into the nature of the proposed arrangement between the companies and all attendant circumstances. Bristol County St. Ry., pet'r, 1903, 91. 901. The proposed arrangements would mean the division between the two com- panies of the patronage now received by the Norton & Taunton Company over what is admittedly the best paying portion of its system. That such joint use of tracks would be other than disadvanta- geous to the Norton & Taunton Company, the petitioner does not attempt to show. STREET RAILWAY — Con. We may disregard certain evidence of a sinister character as to the motive at one time actuating the petitioner in seeking to enforce the contract, and consider only the argument ably urged by counsel; namely, that, though it be purely as a matter of business and of financial profit that the petitioner seeks to use the Norton & Taunton tracks, certain benefits to the travelling public would follow, and would justify the approval of the enterprise. Undoubtedly a portion of the travelling public might receive a more frequent serv- ice. On the other hand, it is difficult to view the resulting reduction in the revenue of the Norton & Taunton Company as otherwise than disastrous, not only in its direct infiuence upon stockholders, but in i ts indirect effect upon a large travelling public now served by it. lb. IV. Speed or Cabs. Under 190S, I4S {now 1906, 483, Fart in, § 74). 902. It would be idle to attempt to prepare a code of specific rules as an absolute guide for motormen and conductors in every contingency which may arise. The most that can be done is to establish cer- tain limits of speed and a few fixed rules. The safety of the pubUc must in the end depend upon the judgment, skill and care of those in charge of cars in the exercise of a discretion which it is necessary to leave with them. Middleborough Selectmen, pet'rs, 1904, 107. 903. In view of the responsibility thus rest- ing upon motormen and conductors every street railway management is bound to exercise extreme care in the selection of its employees. It should employ only men alert in body and mind, reliable in charac- ter and capable of exercising sound judg- ment. On the other hand, every employee should have reason to know beyond per- adventure that in the estimation of the management safety is held paramount to the making of schedule time and to every other consideration. lb. 904. As a rule for general application a car should always be under such control as to enable the motorman to stop it in season to avoid collision or injury in any emer- gency which it is reasonable to expect may arise. 76. 108 STREET RAILWAY. STREET RAILWAY — Con. 905. Rates of speed upon street railways should be similar throughout the state as far as conditions permit. This will pro- mote on the part of motormen a familiarity with the rates and consequent skill in con- forming to them. Wellesley Selectmen, pet'rs, 1904, 108. 906. We have approved a rate not to exceed ten (10) miles an hour where railways are located within the travelled road in the more thickly settled parts of cities and towns; a rate not to exceed fifteen (15) miles an hour where railways are located within the travelled road but outside cen- tres of business or residence or are located in highways of width suited to such rate; and a rate not to exceed twenty (20) miles an hour where the railway is at one side of the travelled road. Jb. 907. A car cannot always move safely at even six miles an hour through a busy street. The view of a cross street may be so ob- structed as to make it imperative that a car in approaching it be always under such control that it can be stopped immedi- ately. The changing uses of the street and the varying conditions which obstruct the view of a motorman make it impossible to fix a specific rate to meet every situation; the rules which limit extreme rates must govern in individual cases and emergencies. lb. 908. The selectmen have established a rate of twenty-five (25) miles an hour in certain streets if "properly lighted" and twenty (20) miles an hour in the same streets if " not properly lighted." We do not think it practicable to carry out this distinction.' lb. 909. The so-called reservation upon which the Boston & Worcester street railway is located in Natick is so meagre in extent, and in many places so ineffectually sepa- rated from the travelled road, that we can- not consent to a rate of speed for street cars in excess of twenty-five miles an hour. That the selectmen have author- ized a higher rate, that at the public hearing the expression of views on the part of representative citizens was unan- imous in favor of a higher rate, are facts which have been duly considered, but STREET RAILWAY — Con. which do not convince us that the safety and convenience of those who travel upon the highway would be properly protected if we should consent to a rate of speed, under present conditions, higher than that above named. Natick selectmen pet'rs, 1905, 76. V. In Gbnekal. 910. Section 41, chapter 112, Revised Law» [now 1906, 463, Part III, § 75] requires companies to remove snow from their tracks "in such manner as may be ap- proved by the superintendent of streets." This means something more than run- ning a plow over the railway and throwing the snow upon the sides of the street. It contemplates an arrangement between the company and the town under which the two can work together and promptly make the public ways conven- ient for all classes of travel.^ Amesbury v. Citizens Electric et al., 1905, 4. 911. The indiscriminate use of salt upon street railways to relieve tracks from snow and ice is a public nuisance, producing results which are not only an annoyance, but a menace to health. On the other hand, a moderate use of salt upon froga and switches and upon heavy grades or sharp curves is justified as a measure for the protection of those who travel upon railways. This restricted use we approve; any larger use we condemn. lb. 912. While it is true that the accumulation of snow and ice upon the sides of this street may become the occasion of accident this danger can be largely averted, if not wholly eliminated, by co-operation be- tween the town and the company in clear- ing away the snow after a storm. On the other hand, the use of double tracks in- stead of a single track where cars are run in opposite directions is always to be en- couraged, for the reason that in prevent- ing collisions it promotes safety and in preventing delays it promotes regularity in the operation of the railway. lb. 913. These petitions relate to the economic administration of business and to improve- ment in street railway accommodation. In instances where action upon these 1 For opinion as to the right of a street railway company to light streets through which its cars run, notwith- standing R. L. 121, §§ 24, 26 and 122, § 1 , see Wellesley selectmen v. Boston & Worcester St. Ry. Co. — 188 Mass. 250. See also Newcomb v. Norf. W. St. Ry. Co., 179 Mass. 449. 2 See Ovington v. Lowell & Suburban St. Ry. Co., 163 Mass. 440. STREET RAILWAY — TAX. 109 STREET RAILWAY — Con. matters would promote the public in- terests it would seem that, whatever the outcome of the legal contest as to holdings of stock in these companies may be, the management of their affairs, in so far as it affects the travelling public, ought not to be affected by the pending litigation. The street railway companies are inde- pendent corporations, and their issues of capital, their charges and methods of conducting business are under State super- vision. The Board is therefore proceed- ing with an inquiry into the merits of the pending cases upon the assumption that an economical and progressive man- agement of existing lines is desirable. 1907, 57. 914. Whatever the solution of these diffi- culties, one thing is evident, that the con- duct of street railway companies should be no different from that of other transporta- tion or business corporations in the adop- tion of a far-seeing policy in the manage- ment of properties, and an element always to be commended in such management is that of proper provision in the present for the inevitable needs of the future. 1908, 64. 915. For discussion of street railway acci- dents, see Accidents, " Street Railways,^* also 1895, 119, 165; 1903, 43; street rail- way policy, 1896, 110; street railways v. railroads, 1901, 91, 92; operation, 1901, 93; densityoftraffic, 1898, 110; 1899,83. See also Vestibules. STREET RAILWAY AND MUNICIPAL CORPORATIONS. Report of special committee upon. See 705. STREET RAILWAY COMPANIES. Definitions. See 706, 746. STREET RAILWAY CONDITIONS. For discussion, see 1905, Ixvi. STREET RAILWAY CONTRIBUTIONS. To grade crossing elimination expenses. See 356. STREET RAILWAY CROSSINGS. Of railroads. See 304, 310-317, 356. STREET RAILWAY EXPRESS. See Express (Street Railway) . STREET RAILWAY FARES. See Fares and Freights, VI. STREET RAILWAY LOCATIONS. See Location, V. See also 579. STREET RAILWAY RULES. See Rules; Regulations. STREET RAILWAY SERVICE. See Accommodations, I.; Location, V. STREET RAILWAY TRANSFERS. See 586-592. STREET RAILWAYS. Connecting. See Connecting Roads. STREET WIDENING. See 73, 79, 707, 722, 867, 870. By companies. See 673, 679, 707, 722, 867, 870. SUBSCRIBERS. See 160-164, 216-218. SUBSCRIPTION. To capital stock. See 211-218. By a town as a consideration for an agree- ment to furnish accommodations. See 104. Evasion of. See 214. SUBURBAN FARES. See 421, 453, 464, 466, 467-469, 484. SUBURBAN TRAINS. See 939, 946. SUBURBS. Cheap fares as aid to building. See 563, 564. SUBWAY CONNECTIONS. See 805. SUMMER TRAVEL. See 39, 40. SUNDAY BOATS. See Accommodations, 141-143. SUNDAY LABOR. See 137. SUNDAY PAPERS. See 138. SUNDAY TRAINS. See Accommodations, 127^140. SUPERVISION. See 407. Of monopolies. See 711. SUPREME JUDICIAL COURT. See 56, 87, 91, 166, 177, 184a, 188, 200, 212, 2196, 257, 282, 318, 335, 370, 377, 382, 392, 402, 449, 545, 549, 559, 570, 581, 594, 595, 647, 663, 7016, 705, 709, 716, 736, 746, 819, 856, 908. See also Constitutional Law and under various See 686. SURPLUS FUND. See 796. SURRENDER. Of property rights. SURVEYS. SWITCH CROSSINGS. See 318, 319. SWITCHES. Salt on. See 911. SWITCHING. See 338, 341. TARIFF. See Fares and Freights; Milk Transporta- tion. TAX. See 410, 411. 110 TELEGRAPH — TKAOK AND ROAD-BED. TELEGRAPH. For a report upon the occupation of railroad locations by more than one telegraph com- pany, see 1885, S3. TELEPHONES. For car despatching. See 9, 12, 884. TELLTALES. See Bridge Gwirds. TEMPERATURE. Of street railway cars. See 943, 947, 948. See also Trains and Cars. TEMPORARY CROSSING. See 241, 246. TENDER OF FREIGHT. See 500. TENURE. Of street railway locations. See 692. TERMINI. See 17, 210, 266, 530, 549, 572, 620, 624, 647, 662, 674, 683, 720. TERMINUS. See 199, 209, 210, 252, .253, 266, 445, 467, 477, 530, 531, 562, 674, 720, 752, 824. For a discussion of terminal facilities in Boston, see 1870, 77, 81; 1871, 10; 1874, 40; 1880, 17,71; 1881, 19; 1882, 17; 1883, 23; 1890, 42; 1892, 37; 1893, 9; 1894, 125; 1897, 41; 1898, 77, 205; 1900, 53; 1907, 54; aiso final report of joint board (railroad and other commissions), on met- ropolitan improvements, 1911. See also 824. THEATRICAL COMPANIES. See 172. THROUGH AND LOCAL TRAINS. See Accommodations, I. See also 945. THROUGH FARES. See Fares and Freights, VI. TICKETS. See Fares and Freights, TV. Provision for purchase before entering cars reasonable. Ih. TIDE-WATER. Railroads over. See 656. TIME. Of trains. See Accommwdations, I. TIME SCHEDULES. Not to be conditions in street railway loca- tion grants. See 717. TIME-TABLE. For failure to adhere to advertised time- tables, see 936, 937, 944. Change in. See 65. See also Holidays. TITLE. By foreclosure. See 107, 108. By prescription. See 700. TOOLS. Emergency. See 6-8. TOWN BOUNDARIES. Five-cent fares (street railway) within. See 566; see also 755. TOWN OFFICIALS. See 250, 258, 264, 734. See also Selectmen. TOWN SUBSCRIPTIONS. For railroad. See 104. TOWN WAY. See Bridges, Crossings, II. See also Loca- tion, V. TRACE. Two consecutive miles of. See 893. TRACE AND ROAD-BED. See Connecting Roads; Location, I.; Cross- ings, III; IV. 916. Where a road-bed was built through a millpond and was pierced by culverts to allow the passage of the water, held, that the Board had no cognizance of the ques- tion whether an overflow or other similar disaster occurring in the vicinity was caused by the size or condition of the cul- verts, or whether the corporation owning the road-bed was in any way liable for the damage so caused. Clinton ». Worcester & Nashua R. Co., 1877, 125. 917. Where, under the above circumstances, a change was made in the construction of the culverts, it was held that the Board, though it had no authority to apportion the expense of the undertaking, as be- tween the corporation and the parties for whose use and benefit the waters were stored, had power, so far as the reconstruc- tion of the culverts bore upon the safety of the road-bed, to recommend their re- construction to the corporation. lb. 918. A safe track, such as will be neither a source of danger nor a hindrance to speed, is the first duty which a corporation owes to the public. Medway v. N. Y. & N. E. R. Co., 1884, 127. See also 1888, 37. 919. Much original road-bed from want of experience, foresight or means was of cheap construction; and the best results can never be obtained until the work of reconstruction is completed. . . . The four-track system between Boston and Readville was opened to the public use in the summer of 1897. Since that time there has been no considerable railroad construction within the state of this per- fected standard. The manifold advan- tage of the foTir-track system makes its further extension of the greatest im- portance. 1902, 34. 920. In one respect, however, the English practice is superior to our own, and that TKACK AND ROAD-BED — TEAIN8 AND CARS. Ill TRACK AND ROAD-BED — Con. is in the uncompromising character of the laws against trespassing upon railroad premises and the rigid way in which these laws are enforced. 1907, 51. Street Railway. 921. Remonstrants urged that the proposed uses of the tracks under consideration for the transportation of ooal was one which would prove objectionable. The sugges- tion that if future uses of these tracks should prove inconsistent with the public interests that fact could be presented at any time to the Board and appropriate action taken to restrict or prohibit such uses was accepted by all parties as the understanding upon which favorable action should be taken upon this petition. Boston & Northern St. Ry. Co., pet'r, 1907, 148. 922. This occasion is also taken to call at- tention to the need of making every effort to keep tracks in a condition to prevent accident from slippery rails; and we again urge the necessity of enforcing rules for the testing of brakes and for the re- duction of speed in running cars around curves and down grades. Circular, 1907, 227. See 83. Elevated Railway. 923. Owners of real estate in this neighbor- hood complain that the company has been ocoupsdng tracks in front of their premises for storing and making repairs upon cars. This is unjustifiable. The company has no right, that we know, to make storage yards or repair shops of tracks constructed above the public streets. Sufficient ac- commodation of this kind must be provided elsewhere. In one instance only can trains properly be left standing upon the tracks in this locality, and that is when relay trains are needed as they are at times, ready for immediate use to prevent disastrous interruptions in the movement of trains. Boston Elevated Co., pet'r, 1907, 179. TRAFFIC. See Accommodations, I. "What trafiic will bear. See 409. See also 915. 924. By "density of traffic" is meant the average annual number of passengers or tons of freight carried one mile per mile of railroad operated. The density of TRAFFIC— Con. traffic on a railroad system, other things being equal, is a measure of its earning capacity. 1900, 16. 925. By "density of traffic," as applied to street railways, may be understood the average annual number of passengers carried per mile of main track operated. The density of traffic on a street railway system, other conditions being similar, is a measuie of its earning capacity. lb. TRAINS AND CARS. 926. For train accidents, see Accidents. For train service in general, see Accow/moda- tions. For obstruction of highway by trains, see Crossings, VI. For annoyance caused to abutters by trains, see Damages. For workingmen's trains, see 408, 475, 476. For trains in stations, see 815, 816, 936- 938. For cheap morning and evening trains, see 66, 467-469, 476. For reduction of, see 120-122. See also Freight Trains; Holidays. 927. No recommendation will be made by the Board merely on the ground that a corporation keeps in use some cars of older style and less elegant build and finish; but it is the duty of a corporation to provide safe and comfortable convey- ance, and it is a proper subject for com- plaint that cars are not clean, warm or properly ventilated. Medford ». B. & M. Railroad, 1874, 114. Alexander ?j. B. & M. Railroad, 1887, 82. 928. Every passenger train should be fur- nished with a car in which unlimited ex- pectoration and the use of tobacco in all forms should be permitted, while in other parts of the train it should be strictly forbidden. Medford v. B. & M. Railroad, 1874, 114. 929. It is the duty of a corporation to fur- nish reasonable protection to its passen- gers from disorder and noisy conduct in the cars; and if they are especially liable to this annoyance on any particular part of the road, or at any particular time, extra force should be employed for the purpose. Alexander v. B. & M. Railroad, 1887, 82. 930. The statutory as well as the common law requires reasonable accommodations for passengers; and the privilege of a seat 112 TRAINS AND CARS. TRAINS AND CARS — Con. is as a general rule included within this requirement. lb. 931. It is no matter for complaint that occasionally a train is crowded with pas- sengers and many are left standing; but seats should be provided for all passengers that are to be expected, and it is good ground for complaint that a train is re- peatedly and habitually so crowded that any number of passengers are obliged to stand. lb. 932. Under Stat. 1874, 372, § 7 [R. L. Ill, § 12, now 1906, 463, Part I, § 6], giving the Board general supervision over the operation of all railroads in the state with reference to the security and accommoda- tion of the public, the jurisdiction of the Board is not lost where the operation of a road or of any part thereof has been transferred to a foreign corporation; and, therefore, the Board has jurisdiction over the management of the cars of a sleeping- car company which form part of the train of a Massachusetts corporation, and re- dress may be sought by a passenger suf- fering any wrong at the hands of the ser- vants of a, sleeping-car company from the corporation furnishing transportation to him. Thyng v. Fitehburg R. Co., 1882, 96. 933. A traveller entering a car under a special contract to be carried in that car to his destination is entitled to the com- plete performance of his contract and to be carried through to the destination named therein, although the performance of the contract makes it impossible ior the cor- poration to perform another contract, and although a breach of the contract would enable the corporation to accommodate many other persons to an extent far ex- ceeding the inconvenience to the party entitled to performance. lb. 934. Where sleeping-car accommodations are advertised by a corporation, a sufficient number of cars should be kept on hand and ready to supply the deficiency caused by the ordinary chances of railroad operation. 935. For a complaint, decided on its facts, that passengers, including ladies, were obliged to ride in a smoking-car, see Whitney v. Milford & Woonsocket R. Co., 1887, 85. TRAINS AND CARS — Con. 936. No corporation should advertise that its trains will stop at a station, while at the same time private directions given to the employees (for example, orders not to stop when important connections would be endangered) make it doubtful whether the promise to the public will be kept. N. Worcester v. B., Barre & Gardner R. Co., 1884, 138. 937. The fact that trains are frequently run by a station before stopping is not a mat- ter for formal complaint, unless it is shown to be of such frequent occurrence as to prove that the train service of the cor- poration is generally poor. Alexander v. B. & M. Railroad, 1887, 82. 938. The common law, requiring due regard for the life and the safety of passengers, would seem to forbid the practice of run- ning a train at full speed past a station when a train is receiving or discharging passengers. Marks v. B. & M. Railroad, 1887, 123. See also Alexander v. B. & M. Railroad, 1887, 82. 939. The newer locomotives are among the heaviest and most powerful in use and of the most modern construction. The newer passenger oars are of the most approved pattern, commodious and well lighted. There are, however, too many cars in use upon which no favorable comment can be made. They are usually found in subur- ban service or upon branch lines. On these the windows are small, the seats short, narrow and uncomfortable and the light poor. Better cars should take their place. 1902, 35. 940. For a petition, decided on its particular facts, to recommend a corporation not to run trains so near a travelled road as to frighten horses, see Winthrop t. B., Winthrop & Ft. Shirley R. Co., 1883, 128. 941. Under Stat. 1882, 54, § 3 [R. L. Ill, § 211, now 1906, 463, Part II, § 169], it is the duty of each railroad company to ask the approval of the Board for the safe- guards against fire adopted by it, and it is not the duty of the Board to recommend in advance the appliances that meet its approval. 942. It is practicable to require that cars be equipped with fire extinguishers; but TRAINS AND OARS. 113 TRAINS AND CARS — Con. to determine the eflBciency of such appara- tus it wouJd be neoessaiy 1o undertake a careiul inquiry. Such inquiry would be even more necessary to enable the Board to report upon "any means. . for pre- venting loss of life by fire." Report to General Court, 1907, 223. See 1M8, 177. 943. In dealing with delays on railroads there are always certain obstacles to the regular running of trains that must be reckoned with. No matter how high the standard of equipment, weather conditions will interfere with speed. A zero tem- perature cuts down the power of loco- motives, and blinding storms and fogs hide signals. Safeguards are essential to safety and yet the observance of them must upon occasions hold up trains and prevent the making of schedule time. To the extent that safe operation is alone' responsible for train delays companies are justified in asking the public for favorable and not adverse criticism, and we are inclined to believe that the soberly think- ing pubUc is always ready to accord it. Investigation, train service, 1907, 138, 139. ■944. Again, train schedules in late years have been adjusted to favorable rather than to unfavorable conditions of weather. Such schedules must inevitably in the winter season be accompanied by the occasional and at times seemingly fre- quent delays that are the result of our peculiar climate. A return to the old time practice of lengthening out winter schedules would mean a, generally slower speed but closer adherence to time tables. lb. 945. Another disturbing element is the through train that enters the state with a load of tribulation of its own, accumulated in other territory, and adds to the un- pleasantness in a most aggravating way by disturbing the local service upon our lines. The inability of certain long distance "flyers" to make their schedule time is historic. Ih. 946. Complaint has been made that subur- ban trains are not properly lighted. . . . There is enough of reason for it to lead us to make the recommendation that the management of every company take steps to have cars used in this service so lighted that passengers who desire to read may have the opportunity. 1906, S4. TRAINS AND CARS — Con. Street Railway Cars. 947. It ia notorious that opinions differ as to what the temperature of a room in a private house ought to be, and that the same person entertains different opinions at different times, according to condition of health or circulation of blood. Obviously, then, an attempt to always satisfy every occupant of a street car with the atmos- pheric conditioES must be lutile. Even if passengers were of the game mind, it is impracticable to constantly maintain air of a given quality and the temperature at a specific point inacarthatia one moment nearly empty and the next crowded to the limit; now stationary, then in motion; with doors continually opening and shut- xing, and with an outside temperature varying between zero and forty degrees above. 1908, 58. , 948. After all is said, however, in support of theories and devices for heating and ven- tilating cars, present discomfort is due fully as much to the failure to properly use means at hand for keeping the air pure and warm as to imperfection in apparatus. There ia no reason why, for example, a movable ventilating window ahould be kept entirely open or entirely shut, or in any one position throughout a long jour- ney, in total disregard of the temperature outside and of the changing conditions inside the car. 1908, 59. 949. The practice of locking from the out- side the door leading from the body into the front vestibule of street cars waa re- cently criticized in an order of the Board, in which it waa held that companies in permitting this were adding a new peril to travel in case of mishap to the motor- man or in caae of collisions, in either of which it might be of great importance to reach the front vestibxile from within the 1906, 54. 950. Wherever conditions lead to the pres- ence of intoxicated persons upon cars, an active and energetic enforcement of the law will tend, in our opinion, to substantial improvement, and we are convinced that the travelling public can be freed in large measure from the annoyance caused by their presence. Wheelock i. Wor. Cons., 1910, 89. 114 TRAINS AND CARS VOUCHERS. TRAINS AND CABS — Con. 951a. Certain suggestions have been made to us with respect to partitions in cars, and extra cars at certain hours of the evening, as a means of segregating persons under the influence of liquor. We doubt the practicability of these suggestions and if found feasible we shotdd be extremely reluctant to make such recommendation. Street railway companies are engaged in the business of carrying passengers in such a manner as to promote their security, convenience and accommodation, and it is their plain duty to put into effect every known instrumentality of law in order to render such service to the public. The operation of partition cars or extras is but an invitation to a class the street railway is not intended to serve. Such persons should be, not upon the railway, but in the custody of the law. Jb. 9516. For a construction of Stat. 1887, 362 [R. L. 111. § 212, now 1906, 463, Part II, § 170], relating to the heating of passenger cars by stoves or otherwise, see 1888, 55; 1891, 227; 1892, 6, 195; 1893, 20. Seeaiso Ventilation. TRAIN SERVICE. See 1904, 88. See also Accommodations. TRANSFER CHECKS. Baggage. See 390. TRANSFERS (STREET RAIL WAT). See 586-593. TRANSPORTATION RATES A TAX. See 410, 411. TRAVELLED PLACE. See Crossings, I. TRAVELLED ROAD. Trains near. See 906, 909, 940. TRAVELLED WAT. See 243, 245, 246, 263, 275, 276. TRESPASS. See 809. TRESPASSING. On tracks. See Track and Road-bed. See also 959. TRESTLE. See 315, 359, 666. TRUSTEE. See 26, 27. TUNNEL. 952. Stat. 1887, 413, § 5, relating to tunnels to be constructed by the West End St. Ry. Co., seems to impose upon the Board the duty to pass, not only upon the loca- tion of the tunnel, but also upon its expediency and method of construction. 1888, 17. TUNNEL — Con. 953. For decision on appeal as to location of the Washington Street tunnel in Boston, see 1904, 66. 954. For decision as to night cars in East Boston tunnel, see 1906, 78. 955. For determination as to Boylston Street entrance and exit to the Washing- ton Street tunnel, see 1906, 160. 956. For report of Board as to tunnel under Boston Harbor for Boston & Eastern Electric Ry. Co., see 1909, 210. 957. For approval of route, etc., of Main Street Subway, Cambridge, see 1909, 235. See 662, 666. TURNOUTS. Single and double. See 84. UNANIMITT. Of sentiment no reason for granting a grade crossing. See 277. UNDERBILLING. See 1873, 92. UNDERPASS. See 246, 266, 294, 300. UNIFORMITT IN EQUIPMENT. See 1893, 20. UNION PASSENGER STATIONS. See 1887, 27; 1892, 37; 1893, 9; 1894, 125; 1897, 41; 1898, 77, 205; 1900, 52. UNNECESSART RAILROADS. See 635, 637. UNPROFITABLE LINES. Street railway fares upon. See Fares and Freights, VI. UNREASONABLE RATES. See Fares and Freights, I. VALIDITT. Of lease. See Lease. VALUATION. Of railroad and railway property. See 856, 858. VENTILATION. Of passenger cars. See 1897, 17. See alsa 927, 947, 948. VESTED RIGHTS. See 278. VESTIBULES (STREET RAIL WAT CARS). In Boston. See 1901, 284, 287, 288. See also 949. VIADUCT. See 666. VINDICTIVENESS. In charges. See 538. VIOLATION. Of law. See 127, 188, 189, 195, 211. VOID LOCATIONS. See 687, 726, 731. VOID SUBSCRIPTIONS. See 164, 215. VOUCHERS. See 390. WAIVER — ZONE SYSTEM. 115 WAIVER. See 654. WANTONNESS. See 538, 692. WAREHOUSEMEN. See 169. WATER TRANSPORTATION. See Fares and Freights, V. WAY. See Highway; Crossings. For ways leading to stations, see Stations, I. WEATHER CONDITIONS. See 943. WEEKLY PAYMENTS. See 1887, 22. WEIGHING. For incorrect weighing as a source of dis- crimination, see 517, 518. WEIGHT. For diaoussion of dead weight, see 1873, 4; 1875, 5; increase of, 1887, 75. WELFARE, GENERAL. See 676, 680, 684, 690, 694, 698, 713, 717, 732, 734. WHEELGUARDS. For electric cars, see 1907, 59. See also 6, 7. WHISTLING. 958. The Board recommends to railroad cor- porations the disuse of the whistle witliin the limits of the city of Boston and other crowded neighborhoods on their lines of road, except (1) in the strictly necessary management of freight trains, and (2) aa a signal of actual danger. Boaton v. B. & P. R. Co., 1875, 68. See also Stedman v. N. Y. & N. E. R. Co., 1880, 227. Higgins J. N. Y. & N. E. R. Co., 1884, 170. Anon. ». Housatonio R. Co., 1884, 171. Mills V. B. & M. Railroad et al., 1886, 141. 1873, 23; 1875, 30; 1877, 34; 1880, 28; 1886, 26; 1887, 71. 959. The discontinuance of whistling at a street crossing was not ordered where it appeared that the tracks at that point were habitually occupied by persons walk- ing on them as trespassers. Robinson v. B. & M. Railroad, 1887, 117. 960. For cases arising imder Stat. 1885, 334 [R. L. Ill, § 189, now 1906, 463, Part II, § 148], (giving the Board power to regu- late whistling at street crossings), and de- cided upon their facts, see Mills V. B. & M. Railroad et al., 1886, 141. Robinson v. B. & L. R. Corp., 1887, 117. Peabody t. B. & M. Railroad, 1904, 102. Webster ii. N. Y., N. H. & H. R., 1907, 199. Taunton t>. N. Y., N. H. & H. R., 1907, 202. Clarke s. B. & M. R., 1908, 261. WHOLESALE TRANSACTIONS. Reasonable ground for low rates. See 440. WINTER. Operation in winter of a road intended for summer use only. See 940. See also 1883, 145; 1884, 143, 146; 1885, 122, 124. See also Snow. WOMEN. In smoking cars. See 935. WORDS. "Absorbing the arbitrary." See 519. "Authority." Sec 898. "Baggage." See 166, 175-179. "Burden, duty or obligation." See 581. "Cargo rates." See"441. " Consistent with Public Interest." See 866. ' ' Constructed. " See 754 . "Convenience." See 131. "Density of traffic." See 924, 925. "Equal facilities." See 768. "Fair distribution." See 353. "Going concern." See 578. "Incidental." See 744. "Interested party." See Electric Railroads, 675, 689. "Necessity." See 131. "Other considerations." See 386. "Party." See 239, 240. " Purchasing Company." See 757. ' ' Reasonable facilities. ' ' See 768. "Reasonably necessary." See Stock and Bonds. "Reasonably requisite." See 859. "Reference." See 190. "Responsibility." See 219a. "Road." See 1 (footnote), 915 (footnote). "Selectmen." See 258. "Station." Seel (footnote), 915 (footnote). " Street railway." See 742. "Street railway company." See 706, 746. " TeU-tales." See Bridge Guards. "Travelled place." See 611. Crossings I. "What traffic will bear." See 409, 444. WORKINGMEN'S FARES. Street railway. See Attleborough -v. Int. Cons. St. Ry. Co., 1912. Railroad. See Infra. WORKINGMEN'S TRAINS. See 82, 408, 467, 475, 476, 585. See also 1873, 37, 109; 1874, 22; 1875, 25; 1876, 52, 116; 1877, 37; 1902, 82; 1903, 4. History of, 1878, 33; 1880, 27, 227. Constitutionality of law, 1873, 40. Speed of, 1873, 47. YARD. See 293, 803. YOTTNG ANIMALS. See 443. ZONE SYSTEM. See 1892, 49. f /„' -fr' •(' ^li