Horan v. Boston Transit Commission , 227 Mass. 142 ( 1917 )

Braley, J.

The petitioner asks for process by mandamus to compel the respondents the Boston transit commission to construct a tunnel or subway from “a point at or near City Square to a point at, near or beyond Sullivan Square in the Charlestown district of the city of Boston” under the provisions of Spec. St. 1915, c. 293. But while they are directed to construct the tunnel, § 1 states that the provisions as to construction, payment and use are to be the same as "provided by law for the construction, payment and use of the present tunnel under Washington Street in the city of Boston.” The St. of 1902, c. 534, in so far as pertinent and material having been thus incorporated by reference, the governing statute is to be read accordingly. See St. 1907, c. 573; St. 1911, c. 741, § 8. It follows that unless the Boston Elevated Railway Company consented to execute with the commission a contract for the sole and exclusive use of the tunnel or subway for a specified term of years at an annual rental after its construction, and thereupon the voters of the municipality had accepted the Spec. St. of 1915, c. 293, the commission could not have proceeded with the work of construction. Boston v. Talbot, 206 Mass. 82. Sears v. Crocker, 184 Mass. 586. Codman v. Crocker, 203 Mssa. 146, 153, 154. The material allegations of the answer not having been traversed are to be taken as true, (R. L. c. 192, § 5,) from which it clearly appears that having been duly requested by the commission to define its position, the company declined to take action, or to enter into any contract as required by the statute.

No failure by the respondents to comply with the act is shown.

Order dismissing petition affirmed.