THE STATE AND THE STREET RAILWAY cation of the proposed railway in each city was delegated to its mayor and aldermen. In the following year, before either rail way had been constructed, both charters were amended by providing that at any time after one year from the opening for use of the tracks in any street, the mayor and alderman of any city might determine that so much of the track as was located within the limits of that city should be dis continued, and that thereupon the location should be deemed to be revoked and the tracks should be removed by the company, and at its expense. This provision consti tutes the distinguishing feature of street railway tenure in Massachusetts, as com pared with that in nearly every other state or country. It was inserted, either ex pressly or by reference to a later general statute to the same effect, in every subse quent street railway charter. Its impor tance cannot be over-estimated. It makes of the street railway in effect a tenant dur ing good behavior. As stated by Mr. Justice Colt in the only case in which this provision ' was directly considered by the Supreme Court: "The franchise which the plaintiffs took under their charter is by the laws of the Commonwealth thus limited and qualified. Their right to the use of the streets is not for all purposes exclusive, and must be ex ercised in common with the rights of other travellers, and a just regard to public con venience; and this end is attempted to be secured by giving to the officers of cities and towns, as the most fit tribunal for that purpose, the powers above enumerated, to be exercised as in their judgment the weight of the public convenience in the use of the streets may require." During several years after 1853, except for a few unimportant provisions of general ap plication, no attempt was made to enact a general street railway law. The rights of 1 Medford & Charlestown R. R. Co. v. Somerville, in Mass. 232.
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each company were fixed in the special statute constituting its charter. In 1864, the first general street railway law was passed. It contained forty-five sections, and provided for many details of capitalization, construction, and operation. Nine years later this general law was revised and reenacted in a statute of sixty sections. Under both acts, however, it was still neces sary to apply to the legislature for a charter to organize a street railway corporation, and it was not until 1874 that provision was made for the organization of such companies under general laws without recourse to the legislature itself for the charter. From their introduction until the year 1887, and whether organized under special charters or under the provisions of the gen eral law, the legislature, with regard to the location, construction, and operation, "ad hered" in the language of Mr. Justice Hoar, "with great uniformity to the policy which was adopted from the outset, of making these corporations subject in a great degree to the direction and control of the board of aldermen of the cities, and the selectmen of the towns, in which their franchise is to be exercised." As the law stood in 1887, these local au thorities could grant, alter or revoke loca tions, could order the use of tracks to be temporarily discontinued, could make regu lations as to the removal of snow and ice from the tracks, as to the rate of speed, as to the mode of using the tracks, as to the use of the tracks of one company by the horses and cars of another company, and as to the motive power to be used. In none of these respects was the action of the local authorities subject to any revision, except in the single case of a disagreement be tween the local authorities of two munici palities as to the necessity for the use of the tracks of one company, located in both places, by the cars of another company. In this one instance the decision of the question was left to the Board of Railroad Commis sioners.
