Williams v. Old Colony Street Railway Co. , 193 Mass. 305 ( 1906 )

Knowlton, C. J.

This is a bill in equity brought to restrain the defendant from maintaining poles and wires in one of the streets of the city of Taunton, and to compel the removal of the poles and wires which have been erected there by the defendant. The principal question in the case relates to the construction of the St. 1901, c. 214, § 3. This statute is entitled “ An Act to extend the corporate powers of the Brockton Street Railway Company.” By c. 434 of the acts of the same year, the name of this corporation is changed to Old Colony Street Railway Company, so that the defendant is the corporation mentioned in the earlier statute. The language in question is as follows: “ Said company may, for all purposes necessary or incident to the construction, maintenance and operation of an electric street railway, generate, manufacture, use and transmit electricity in any city or town wherein it is now or may hereafter be entitled to operate a street railway, and for that purpose may erect and maintain poles, trolley, feed and stay wires and other devices for conducting electricity in, over and under any streets, highways, bridges and town ways in any of said cities and towns wherein it has been or may hereafter be authorized by the board of aldermen or selectmen to operate its railway, and upon and over any private land, with the consent of the owners thereof,” etc. The street to which the suit refers is not one in which the defendant is authorized by the board of aldermen to operate its railway, although authority was given by the board to erect and maintain the wires for the transmission of electricity through it.

The plaintiff contends that the word “ wherein ” in the clause “ wherein it has been or may hereafter be authorized by the board of aldermen or selectmen to operate its railway,” relates, to “ streets, highways, bridges and town ways ”; while the defendant contends that it relates to the words “ in any of said cities and towns.” It is a general rule that a limiting or qualifying word or clause must be confined to the last antecedent, unless the subject matter requires a different construction. Cushing v. Worrick, 9 Gray, 382. Commonwealth v. Kelley, 177 Mass. 221. Fowler v. Tuttle, 24 N. H. 9. Gaither v. Green, 40 La. Ann. 362. In the clause giving the general authority in the first part of the section, the word “ wherein ” plainly relates to the words, “ any city or town,” and includes all parts of such cities and towns. The statement of the more specific authority is introduced by the words, “ and for that purpose may erect,” etc. These words do not indicate a limitation of the general authority, but a more particular definition of it. . The word “ wherein ” is not the word which naturally would be chosen to relate to bridges over or upon which a railway was operated, while it is strictly accurate as referring to a city or town in which the operation of a railway is authorized. The words,' “ in any of said cities and towns” are not the best that could be chosen, for no cities or towns had been mentioned to which the word “ said ” properly could be applied. But we think it obvious that the expression is intended to include cities and towns such as previously had been referred to in the same sentence, and that its meaning is the same as if the words were “ in any city or town.” If the plaintiff’s construction were adopted, the greater part of this section would be meaningless, for under previous statutes the corporation was authorized to erect and maintain poles, trolley, feed and stay wires and other devices for conducting electricity in, over and under any streets, highways, bridges and town ways through or over which it was authorized by the board of-aldermen or selectmen to operate its railway. See definitions of the words “street railway” and “location,” R. L. c. 111, § 1; St. 1906, c. 463, Part III. § 1. This provision would not have been enacted if it were not designed to add something to existing rights.

The principal argument against the defendant’s construction is that the Legislature could not have intended to give the corporation so much power. In answer to this it is shown that, in the same year, by the Sts. 1901, cc. 280, 305, 316, 317, 318 and 348, authority of this kind was given to six other corporations in the same language as in the statute before us, except that the words “ in any city or town wherein ” are used instead of the words “ any of said cities or towns wherein.” In these statutes the meaning seems too plain for serious question^ Again, the same authority is given to another corporation by the St. 1903, c. 284, in similar language, in such form that there is no ambiguity or doubt in regard to the meaning in this particular. The fact, that by the St. 1901, cc. 347, 350, the same authority is limited by unmistakable language to streets, highways, bridges and town ways on which the corporation mentioned has authority to operate its railway, makes more plain the distinction between the two classes of statutes, and shows that the defendant’s construction of c. 214 is correct.

It is unnecessary to consider whether the plaintiff has such an interest in the land under the street as would give her a standing in this suit if her construction of the statute were adopted.

Bill dismissed.