SELECTMEN OF WESTWOOD v. DEDHAM AND FRANKLIN STREET RAILWAY COMPANY.

RUGG, J. This is a petition in equity [Note 1] by the selectmen of the town of Westwood to enforce compliance with a term of a street railway location as to fares. The defendant has succeeded to the rights and franchises of the Norfolk Western Street Railway Company. On August 10, 1898, after the required precedent proceedings by a majority of the directors of the Norfolk Western Street Railway Company, a street railway corporation in process of formation under our laws, an original location was granted to it by the selectmen of Westwood, authorizing it to operate a street railway in certain public ways in Westwood. On August 19, 1898, this location was accepted by the directors of the Norfolk Western Company, "subject to all conditions and restrictions therein contained." A certificate of organization creating the Norfolk Western Street Railway Company a corporation was issued on September 23, 1898. One clause of the location was "The rate of fare shall not exceed the sum of five (5) cents for any distance, in one continuous trip, within the limits of said town, or for a continuous trip from any point along the line of said road in said town of Westwood to its present terminus in Medfield, or to its terminus in Dedham."

It does not appear under what provision of law the defendant succeeded to the location granted to the Norfolk Western Street Railway Company. We are not aware of any special act authorizing it. In each of the ways permitted in the general law, by sale or consolidation under §§ 52, 53 and 54 and at receiver's sale under §§ 144 and 145, of St. 1906, c. 463, Part III., the right acquired by the succeeding company is no more extensive or less onerous than that of the original company as to locations. In January, 1908, the rate of fare was raised above the limit prescribed in the location, and although changed several times since then, has been maintained higher than there provided. Before 1908 the road had been operated at a considerable loss for a number of years, and notwithstanding the practice of strict economy an indebtedness of several thousand dollars was accumulated. Since then its deficit has increased, although there have

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been no allowances for depreciation and only necessary repairs have been made.

The law governing the formation of street railway companies and the granting of locations to them in force at the time was Pub. Sts. c. 113. It has been decided that under this statute a restriction in an original location fixing the maximum fare to be charged for a locality covering three towns was a valid exercise of power by the selectmen, and when accepted by the directors of the street railway company became as binding upon the corporation as if inserted in a special charter of incorporation, that subsequent legislation has not undertaken to abrogate or modify the force of such restrictions, and that they are binding upon another company succeeding to the franchises and privileges of the original company. Selectmen of Clinton v. Worcester Consolidated Street Railway, 199 Mass. 279. It is there pointed out also that the earlier cases of Keefe v. Lexington & Boston Street Railway, 185 Mass. 183, and Selectmen of Wellesley v. Boston & Worcester Street Railway, 188 Mass. 250, arose under different and more recent provisions of law and are not inconsistent with this view. The location now under consideration became operative less than one month before St. 1898, c. 578 went into effect, which among other matters marked a change in the policy of the Legislature upon the subject of fares and deprived local boards of the power to regulate fares theretofore possessed by them. But there always must be some instant of time when every alteration of statute takes effect, and up to that instant the pre-existing law prevails with as much force as it ever had.

The defendant urges that the road is operated with economy, and that the fares charged are reasonable and are about the same as the average charged by other street railways in the State, and that the management of the railway has not acted arbitrarily or without consideration to the convenience of its patrons in making successive small increases in fares in the hope of meeting expenses and has offered to elect one of the plaintiffs to its board of directors, and that out of regard to these considerations, the court ought in its discretion to refuse to grant the relief prayed for. The court is clothed with jurisdiction to enforce the terms of locations on petitions in equity

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by selectmen. Ordinarily the exercise of a judicial power conferred for the benefit of any class of persons or the public is not discretionary, but obligatory when an infringement of right is shown. It is a part of the Constitution that this Commonwealth is established "to the end it may be a government of laws and not of men." The preservation and protection of a right established under the law of the land is not discretionary, but compulsory upon the courts. That it may appear to work hardship in some directions is no reason why they should not act. While in the exercise of equity jurisprudence there is a considerable field necessarily left to the exercise of a sound judicial discretion, the present is not a case of that kind. There is nothing in the statute under which this petition is brought (St. 1906, c. 463, Part III. § 157) to indicate that any exception to the general rule was intended. If, therefore, the plaintiffs make out a violation of a valid restriction these circumstances constitute no reason for not granting the remedy afforded by the Legislature for such cases.

It also is argued that if the rates of fare now charged are reduced, the inevitable result will be that the service will be curtailed, and thus the people of this and several other towns, through which run the tracks of the defendant and its affiliated railway, will be inconvenienced and deprived of transportation privileges now enjoyed by them. However much these consequences might appeal to the sound judgment of a public board in deciding upon a course of conduct, they do not constitute a legal defense to an established right.

The defense of laches cannot prevail. An interval of about nineteen months elapsed between the first charge of fares in excess of those stipulated in the location, during which two further modifications in the fare schedule were made. There is no inflexible rule as to what constitutes laches, and each case depends upon its own facts. There would be a strong argument that, even if private obligations alone were involved, this delay in the light of the negotiations between the parties and the other circumstances did not constitute laches. The significance of delay arises when good conscience demands action. Stewart v. Finkelstone, 206 Mass. 28. But in bringing a suit of this sort, as in granting a location, the selectmen act as public officers and not

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as agents of the town. They are not seeking to protect a private interest, but to enforce a public right, the benefits of which may not be confined to a municipality of which they are officers. Laches is not commonly imputed to public officers in respect of their governmental functions or as representatives of the sovereignty. County Commissioners, petitioners, 143 Mass. 424, 433. Fairbanks v. Mayor & Aldermen of Fitchburg, 132 Mass. 42. See Gaussen v. United States, 97 U. S. 584; United States v. Insley, 130 U. S. 263.

There is nothing to indicate a waiver, even if it be assumed, which we do not intimate, that the doctrine of waiver can apply to such a restriction as that here sought to be enforced. Waiver is an intentional relinquishment of a known right. The selectmen do not appear to have done anything to indicate an intention not to maintain the public right.

The defendant is not compelled to operate its road at a loss. But so long as it continues to exercise the privileges conferred upon it by the location, it must do so subject to all the burdens thereby imposed.

Mandatory injunction to issue.

E. C. Jenney, for the plaintiffs.

F. W. Eaton, (A. C. Burnham with him,) for the defendant.