East Boston Ferry Co. v. Mayor of Boston

Under § 2 of the St. of 1852, c. 244, which authorizes the East Boston Ferry Company to collect such tolls as the mayor and aldermen of Boston shall determine, and provides that the rates of toll shall never be so much reduced as to reduce the yearly dividends of the corporation to less than eight per cent, on the amount of its capital stock actually invested, the corporation is entitled to have those rates so fixed that upon its current business it shall have a right to receive at least the prescribed income; and to have new rates established accordingly by the mayor and aldermen, when the existing rates are insufficient for that purpose. And if upon an application of the company for the establishment of r.ew rates, and proof of such insufficiency of the existing rates, the mayor and aider-men unreasonably refuse or neglect to act, mandamus will lie to compel their action.

Petition filed in February 1869 for a writ of certiorari to quash proceedings of the respondents in relation to the rates of toll of the petitioners, and for a writ of mandamus to compel the respondents to raise those rates. The petition alleged that the East Boston Ferry Company was a corporation under the St. of 1852, c. 244, for the purpose of establishing and supporting a ferry between the main land of Boston and the island of East Boston, and all the rights powers, privileges and franchises, in said statute set forth or referred to, were vested in said corporation; that the ferry was established and' opened for public use in 1852, and had ever since been maintained as a ferry for public use; that, by § 2 of said statute, the corporation was “bound to furnish all such accommodation for the transportation of persons, horses, cattle, carriages, wagons, goods and merchandise, as the mayor and aldermen of the city of Boston for the time being shall from time to time consider that the public convenience requires, and shall be allowed to collect and receive such tolls as the said mayor and aldermen shall determine, provided, however, that the rates of ferriage shall never be so much reduced as to reduce the yearly dividends of said company to an amount less than eight per cent, on the amount of capital stock actually invested;” that the mayor and aldermen from time to time ordered the corporation to furnish such accommodation for the purposes named in said statute as they considered that the public convenience required, and the corporation had at all times furnished all the accommodation so ordered ; that the mayor and aldermen, by an order passed October 4, 1852, fixed the rates of toll to be charged by the corporation for ferriage, (a schedule of which was annexed,) and, with the exception of a term of years ending July 1, 1860, during which time it charged rates lower than those fixed by such order, the corporation charged and collected the rates fixed in manner aforesaid; that in 1854, and ever since, the amount of capital stock of the corporation actually invested was $225,000; that the net earnings of the corporation, ever since August 4,1854, had not sufficed to enable the corporation to earn or pay any dividend whatever; that the rates of toll, fixed by the aforesaid order, were, and for more than eight years had been, so low, that the corporation had been and was unable to pay or earn any dividend upon its said cap■tal; that the rates of toll were fixed by said order in the money of the United States, said money at that time, and until 1862, consisting solely of coined money in gold and silver, having a certain, well known and unchanging value; but that since 1862 lawful money had consisted of United States notes or promises, which had fluctuated in value constantly, and been permanently depreciated below their nominal value in coined money; that this depreciation was such that at the time of the filing of the petition the nominal dollar was worth about seventy-four cents in coin, and had averaged in value much below that amount; that the effect of this depreciation was a substantial lessening of the actual or true value of the tolls received and fixed by said order, though the nominal amount remained the same; that while the actual receipts of the corporation were thus largely, and for a long period of time, curtailed, the expenses, both in the purchase of all supplies and material, and in the payment of labor, were largely increased by the direct and indirect effects of taxation, and by other causes following upon the late war; that, by reason of this increase of their expenses and depreciation of the currency, the corporation on October 5, 1868, presented to thé mayor and aldermen its petition, setting forth in substance the foregoing allegations, and praying that the rates of toll might be increased to such an extent as would enable the corporation to earn and divide a yearly dividend of eight per cent, on its invested capital; that the mayor and aldermen, before the said petition was presented, knew the outlays and receipts of the corporation, and that it failed to earn eight per cent, as aforesaid; that the petition was duly referred, by the board of aldermen, to their committee on ferries, being the appropriate committee therefor, and the mayor and aldermen appointed a time for a hearing thereon, at which time the corporation appeared and was duly heard; that at an adjourned hearing remonstrants against the petition were duly heard, and its prayer was opposed on grounds of public policy, and inconvenience to the inhabitants of Bast Boston, but the facts alleged in the petition were neither disproved nor denied; that, after said hearings were finished, the petition was recommitted to said committee, and no further action was ever had thereon, and, notwithstanding the repeated and urgent requests of the corporation, said board neglected to take further action, and to grant the prayer of the petition, or in any manner to raise the rates of toll fixed by said order; that at said hearings the corporation showed that the raising of said rates to the extent of fifty per cent, was necessary to enable the corporation to earn eight per cent, on its said capital, after paying its ordinary expenses; and that, after the petition had been thus presented to the mayor and aldermen, and after the truth of its allegations had been made to appear to the board, it became their imperative duty, by force of the provisions of said § 2 of the charter of the corporation, and especially by force of the proviso therein contained, to raise the rates of toll, which the corporation should thereafter be authorized to collect, to the extent proposed by the corporation, but the mayor and aldermen refused and unreasonably neglected to pass any order raising said rates of tolls, or to take any action for the relief of the petitioners. The respondents filed a general demurrer, and the case was thereupon reserved by Gray, J., for the determination of the full court.