34
THE GREEN BAG
experience; but it is remarkable that so little departure has been found necessary from the broad general principles originally adopted by the legislature, as interpreted by the Supreme Court. The changes in detail have been many and frequent, but the amendment to the first charter in the very next year to that in which it was granted, practically established the entire legal sys tem governing this public service. Massachusetts is one of the few states which has followed, or, to speak with greater historical correctness, anticipated the Federal theory that judges should hold office during good behavior. The exist ence of a Supreme Court, whose members are secure in devoting their best years and ripest thought to a wise, mature, and his torically consistent solution of the problems, and interpretation of the statutes, pre sented to them, has been of incalculable benefit to the community. Without this continuity of the court, and the resulting natural sequence of each decision with those which have gone before, the orderly and progressive development of a street rail way policy, based upon the apparent anom aly of revocable locations, and the construc tion of many miles of track, would probably have been impossible. To the vagaries and shifting views of an elective judiciary, capi talists would never have consented to en trust the safety of their investments; and the policy which has been found workable here would have had few companies on which to be tested. The first street railway decision in Mas sachusetts was rendered in 1860' by the distinguished Chief Justice Shaw, who thus stated the reason for the existence of street railways. "The accommodation of travellers, of all who have occasion to use them, at certain rates of fare, is the leading object and pub lic benefit, for which these special modes of using the highway are granted, and not the 1 Commonwealth v. Temple, 14 Gray 69.
profit of the proprietors. The profit to the proprietors is a mere mode of compensating them for their outlay of capital in providing and keeping up this public easement." All legislation in Massachusetts since that decision has been aimed at realizing the accommodation of travellers at certain rates of fare, and a limitation of the profits of the proprietors to a just compensation, and nothing more, for their outlay of cap ital. Massachusetts differs from many of the states not only in the tenure of its judges, but in having no constitutional prohibition of special legislation, and no unreasoning dread in practice of resorting to it; in fluenced probably by the consideration that an unwise statute applicable to a single case works less harm to the community than an unwise general statute, which can be taken advantage of in numerous instances before its weaknesses become apparent and are remedied. The first street railway companies in Mas sachusetts were both chartered by special acts in 1853. Each charter assumed, and the courts have held, that the construction of the proposed railway created no new ser vitude for which any land owner was en titled to damages; and neither recognized any special rights of abutters on streets in which the railway was to be built, beyond requiring that they should be given notice of the proposed locations, and an opportu nity to state their objections. The cities, within which the franchise was to be ex ercised, were given, in their corporate capa city, slight participation. This was limited to a condition that the charter should not become operative in any city unless ac cepted by the city council and to a power of purchase upon terms provided in the statutes. These provisions, and that re quiring notice to abutters, as distinguished from a general public notice before locating the railway, were repeated in a few subse quent charters only, and then entirely dis appeared. The power to fix the precise lo
