EASTERN MASSACHUSETTS STREET RAILWAY COMPANY vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & others.

WILKINS, C.J. In this bill in equity seeking declaratory relief under G. L. c. 231A, the plaintiff is Eastern Massachusetts

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Street Railway Company, a Massachusetts corporation (Eastern), and the defendants are the Authority, created as "a political subdivision of the commonwealth" by G. L. c. 161A, Section 2, inserted by St. 1964, c. 563, Section 18, the city of Lowell, the town of Billerica, and Boston and Maine Corporation (B & M). Lowell and Billerica are not among the seventy-eight cities and towns constituting the Authority. Eastern is authorized by the Department of Public Utilities to operate two routes as a common carrier by bus, one between Lowell and the Everett MBTA terminal and the other between Lowell and Boston by way of Billerica. [Note 1]

The matter for determination is the validity of two contracts entered into by the Authority, one with Lowell and one with Billerica. From a final decree upholding their validity, Eastern appealed. The judge made findings from which are taken the facts hereinafter set forth. The evidence is reported.

B & M for many years had provided passenger train service between Boston and Lowell and between Boston and Billerica, most of which, on January 14, 1965, it was granted permission by the Interstate Commerce Commission to discontinue. Accordingly, passenger train service between Boston and Lowell was reduced to one train daily in each direction. Thereupon Eastern increased its bus service and, as a result, its gross revenues.

On December 14, 1964, the Authority, purporting to act under G. L. c. 161A, Sections 3 (f) and 23 (2), entered into a contract with B & M whereby B & M agreed to provide railroad passenger service as an independent contractor for the account of the Authority inside the Authority's territory and outside that territory as from time to time directed by the Authority. By an amending agreement, dated January 25, 1965, B & M agreed to provide train service within the Commonwealth under the original agreement, "despite certain contingencies qualifying its obligations under the

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original agreement." In March, 1965, the Authority, purporting to act under G. L. c. 161A, Section 3 (j), entered into two transportation agreements, one with Lowell and one with Billerica, whereby the Authority agreed to furnish to these communities passenger train service by means of B & M's facilities and equipment as provided in the original agreement. Lowell and Billerica were required to pay the Authority for the service "in accordance with a specified formula."

The trial judge found that rail transportation furnished under the two transportation agreements will compete with Eastern's bus service and will cause economic damage to Eastern. The declaration in the final decree is that the Authority's contracts with Lowell and with Billerica are valid exercises of the powers granted by G. L. c. 161A to the Authority and do not violate c. 161A, Sections 3 (j), 5 (k), and 5 (j).

A principal argument of the plaintiff is that the two agreements with the defendant municipalities were in violation of G. L. c. 161A, Section 3 (j) (ii). Section 3 expressly grants the Authority power "(j) To operate mass transportation facilities and equipment, directly or under contract in areas outside the area constituting the authority; but only pursuant to (i) an agreement with or purchase of a private mass transportation company, part of whose operations were, at the time the authority was established, within the area constituting the authority or [italics supplied] (ii) an agreement with a transportation area or a municipality for service between the area of the authority and that of such transportation area or municipality, where no private company is otherwise providing such service." As to this the trial judge ruled, "The two conditions limiting the power of the Authority to operate mass transportation facilities and equipment outside its own area are stated in the alternative but I rule that both of these conditions have been met by the Authority."

We agree with the quoted ruling of the judge. It was manifestly correct. The plaintiff struggles to confine the

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case to the second condition, and permits the first condition to go by default. The sum total of its argument is a non sequitur. The brief states: "Notwithstanding the alternative phrasing of the statute, the fact is that the Authority has entered into agreements with municipalities outside the area of the Authority for service between the area of the Authority and those municipalities." It then concludes: "Thus we are not concerned with whether the first condition of said section 3 (j) has been met." This argument collapses of its own weight. The word "or" is given a disjunctive meaning unless the context and the main purpose of all the words demand otherwise. Commonwealth v. Keenan, 139 Mass. 193, 194. Gaynor's Case, 217 Mass. 86, 89-90. Marble v. Treasurer and Recr. Gen. 245 Mass. 504, 508-509. Lunt v. Aetna Life Ins. Co. 261 Mass. 469, 476. Robertson v. Robertson, 313 Mass. 520, 529. The present statutory context does not demand or even suggest other than a disjunctive meaning.

The purpose of G. L. c. 161A has been very recently discussed in Massachusetts Bay Transp. Authy. v. Boston Safe Deposit & Trust Co. 348 Mass. 538, 548: "The implicit mandate of the statute is to provide transportation when and where public convenience and necessity require it." See Opinion of the Justices, 337 Mass. 800, 806-807. "The Authority is that kind of agency of the sovereign for which broad general powers and standards are appropriate. See Opinion of the Justices, 334 Mass. 721, 739, 743." Boston Safe case, supra, 542-543. There is no relevance to the present issues in what the plaintiff quotes from Barnstable v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy. 343 Mass. 674, 682-683, and Commonwealth v. Massachusetts Turnpike Authy. 346 Mass. 250, 255.

What we have said is enough to decide the case. The mass transportation service which the Authority is to furnish to Lowell and Billerica is pursuant to a contract with B & M "part of whose operations were, at the time the authority was established, within the area constituting the authority." Section 3 (j) (i).

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Were it necessary to uphold the judge's ruling that there was compliance with the second condition, we need but state our complete agreement with the judge's reasoning. The transportation service is to be furnished pursuant to an agreement between the Authority and each of the two municipalities for service between the area of the Authority and that of the municipalities "where no private company is otherwise providing such service." Section 3 (j) (ii). We quote from the ruling of the judge. "Admittedly, the meaning of the words `such service' is not wholly clear. The service referred to is mass transportation service. But I construe the word `such' to mean that the Authority is precluded under clause (ii) from operating outside its own area only if a private company is providing mass transportation service of a kind and quality substantially similar to that called for in the agreement between the Authority and the municipality. I do not construe section 3 (j) (ii) as meaning that the Authority cannot contract with a municipality outside its own area for mass transportation service from Boston to the municipal area if a private company is furnishing any kind of mass transportation service between any part of Boston and the area of the contracting municipality." If the plaintiff's views were to prevail, the efforts of the Authority to carry out the statutory purpose would be severely hamstrung. The construction it seeks to impose would completely bar furnishing service in the area of any municipality where anyone could show some form of mass transportation prevailed. There would be a semantic victory over the dominating legislative purpose to benefit the public.

The plaintiff is not aided by G. L. c. 161A, Section 5 (k), which reads in pertinent part: "Any private company lawfully providing mass transportation service in the area constituting the authority at the time the authority is established may continue so to operate the same route or routes and levels of service as theretofore . . . and provided, further, that whenever the authority desires to add new routes for service in any area, it shall give preference in the operation

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of such routes to the private carrier then serving such area . . .. "

As to this the trial judge concluded in part, "It is doubtful whether this paragraph has any application to a locality outside the area constituting the Authority." Eastern does not contest this conclusion, and merely urges that the legislative intention in Section 5 (k), to protect private companies within their respective areas of the Authority, complements the protection given by Section 3 (j) to private companies outside the area of the Authority. We agree. Our reading of Section 3 (j) is not inconsistent with the protection given by the statute to private companies. It merely gives this protection its appropriate place in the statutory scheme.

We need not consider c. 161A, Section 14, which is not cited by the plaintiff. The bill does not in terms seek relief in damages, and the plaintiff makes no argument on the issue beyond the bald demand that "the case be remanded to the Superior Court for determination of damages suffered by . . . Eastern . . . as a result of such illegal operations." Our conclusion is quite apart from the fact that no illegal operations have been shown.

Decree affirmed.