L-41-182 MEMORANDUM
Washington, D. C. April 12, 1941
TO Mr. | Director of Retirement Claims
FROM Lester P. Schoene General Counsel
SUBJECT Status of Boston and Northern Street Railway Company, Old Colony Street Railway Company, and Bay State Street Railway Company.
(deceased)
In connection with the claims of the above applicants, a ruling has been requested as to the creditability under the Railroad Retirement Act of service rendered to the Boston and Northern Street Railway Company, the Old Colony Street Railway Company, and the Bay Street Railway Company.
It is my opinion that the Boston and Northern Street Railway Company, the Old Colony Street Railway Company, and the Bay State Street Railway Company were not employers within the meaning of the Railroad Retirement Act and that service rendered to these companies is not cred itable service within the meaning of the Act. This opinion is based on information received from the Eastern Massachusetts Street Railway Com pany, successor company to the companies under consideration, informa tion in the files of the Interstate Commerce Commission, Report & Order of Public Commission of Massachusetts, Bay State Rate Case, August 31, 1916, P.S.C. 1085, the standard financial manuals, and other sources cited in the opinion.
The Boston and Northern Street Railway Company was chartered by the Massachusetts legislature as the Lynn and Boston Railway Company on April 6, 1859. The Old Colony Street Railway Company was chartered as the Brockton Street Railway Company on December 28, 1880. In 1901 the Lynn and Boston Railway Company and the Brockton Street Railway Company were acquired by the Massachusetts Electric Companies, an unin corporated voluntary association formed by banking interests in Boston. At the same time the Massachusetts Electric Companies acquired over sixty street, suburban and interurban electric railways operating locally in over eighty cities and towns north and south of Boston. The lines north of Boston were merged with the Lynn and Boston Railway Com pany whose name was then changed to the Boston and Northern Street Memo to Mr. | Director of Retirement Claims
Railway Company. The lines south of Boston were merged with the Brockton Street Railway Company whose name was then changed to the Old Colony Street Railway Company. The lines of the two companies were connected by the lines of the Boston Elevated Railway Company, which operated in and through the city of Boston, and reached or passed through the following cities: Boston, Lowell, Salem, Lawrence, Haver hill, Gloucester, Lynn, Needham, Brockton, New Bedford and Taunton, all in Massachusetts, Providence, Rhode Island, and Nashua, New Hampshire.
By special act of the Massachusetts legislature, Old Colony was merged in and consolidated with Boston and Northern on July 1, 1911. On August 6, 1911, the name of the consolidated company was changed to the Bay State Street Railway Company. The new company also was con trolled by the Massachusetts Electric Companies. It operated 755 miles of track, sixty-nine miles of which, located chiefly in New Hampshire and Rhode Island, were operated under lease. It leased twenty-seven miles of track in south Boston to the Boston Elevated Railway Company.
The Bay State Street Railway Company ran into financial diffi culties and went into receivership on December 12, 1917. Its properties were bid in on a judicial sale on April 21, 1919, on behalf of Lee- Higginson & Company of Boston, the reorganization managers. On June 1, 1919, the properties were taken over by certain public trustees appointed by the Governor of Massachusetts under a special act of the legislature. Bay State went out of business on June 1, 1919, and was dissolved on March 31, 1931. The new company, the Eastern Massachusetts Street Rail way Company, has been held concurrently not to have been an employer under the Act on August 29, 1935. See letter of this date to Mr. | , Vice President and General Manager, Eastern Massachusetts Street Railway Company. Therefore, service rendered to the Boston and Northern Street Railway Company, the Old Colony Street Railway Company, and the Bay State Street Railway Company is not creditable as service rendered to "predecessors" of a company that was a carrier-employer on August 29, 1935. Service rendered to them can be creditable only if they were "carriers" or "employers" within the meaning of Section 1(a) of the Railroad Retirement Act of 1935 or 1937.
The Boston and Northern Street Railway Company at the time of the consolidation in 1901 operated approximately 353 miles of railway line, all of which, with the exception of about thirteen miles, was located in public streets. It does not appear that the Boston and Northern had any connections at this time or later with any railways other than the Boston Elevated Railway Company, which has been held not to be an "employer" under the Railroad Retirement Act (Approved List of Employers, Item No. 499). The Boston and Northern reported to the Bureau of Statistics of the Interstate Commerce Commission by circular for the year ended June 30, 1908. It submitted annual reports as an Memo to Mr. g Director of Retirement Claims
electric line for the years ended June 30, 1908, to June 30, 1911, inclusive. It filed with the Bureau of Traffic only two passenger tariffs, both of which were adopted by Bay State. No freight tariffs were filed. The operating revenues of Boston and Northern for the years ended June 30, 1908 to June 30, 1911 show passenger revenues in excess of $4,500,000 annually but no express or freight revenues and very small sums yearly as mail revenues.
It is clear, therefore, that the Boston and Northern Street Railway Company was a "street, interurban, or suburban electric rail way, " not operating as a part of a or the general steam-railroad system of transportation within the meaning of the exemption proviso in Section 1(a) of the Act.
The Old Colony Street Railway Company reported to the Inter state Commerce Commission by circular for the year ended June 30, 1906, and by annual reports for the years ended June 30, 1908 to June 30, 1911, inclusive. It filed with the Bureau of Traffic three freight powers of attorney, the earliest of which was effective May 16, 1908. The files of the Commission contain no passenger tariffs; however, there is on file a notice of adoption of the passenger tariffs of the Old Colony by the Bay State Street Railway Company, effective November 2, 1911. Be tween August 16, 1907 and August 31, 1911, eighteen freight tariffs l/ were filed with the Commission in the name of the Old Colony. On the latter date those were adopted by the Bay State Street Railway Company. During the period from 1908 to 1911 Old Colony received revenues from passenger operations in excess of $2,700,000 annually but none from freight service and no more than some $86,000 from express service which was merely local in nature. It does not appear that Old Colony had any connections with any railways other than the Boston Elevated Railway Company at the time of the consolidation in 1901 or thereafter.
Clearly, therefore, the Old Colony Street Railway Company was also a street, interurban, or suburban electric railway, not operating as a part of a or the general steam-railroad system of transportation, within the meaning of the exemption proviso in Section 1(a) of the Act.
As stated above, on July 1, 1911, Old Colony was absorbed by Boston and Northern, and, on July 23, 1911, the name of the consolidated company was changed to Bay State Street Railway Company. The express service operated over some of its lines by Old Colony was expanded. Franchises were obtained for operation over both the northern and south ern sections of Bay State, and new electric express cars were added. l/ Since Old Colony operated no freight service, it is obvious that the freight tariffs applied only to "express" service. Memo to Mr.J Director of Retirement Claims
The Electric Railway Journal, for September 9, 1911, stated that the company expected to make the service interstate. In October 1912, arrangements were made with the Boston Elevated Railway Company to extend the express service through Boston and thereby over the whole line. Mr. | 1 President of the Boston Elevated Railway Com pany, has informed the Board that none of the goods or cars transported over its lines for Bay State were transported in interstate commerce. See L-39-26.
Connection was made with New York and forty-six other shipping points through arrangement with the Hartford and New York Transportation Company, which picked up and delivered freight by boat in Providence. The status of the Hartford and New York Transportation Company under the Act has not been determined, but it was wholly owned and controlled by the New England Steamship Company, a subsidiary of the New York, New Haven and Hartford Railroad Company.
Bay State filed the following documents with the Interstate Commerce Commission:
Annu&l reports (electric) from 1912 to 1918, inclusive.
Three freight powers of attorney, authorizing filing of the Official Classification and supplements thereto on behalf of Bay State. This authority was canceled on January 31, 1921, by the Eastern Massa chusetts Street Railway Company, successor to Bay State.
One passenger power of attorney, effective September 18, 1916. This was canceled on September 30, 1917.
Fourteen passenger tariffs, filed by Boston and Northern Street Railway Company and subsequently adopted by Bay State or filed by Bay State itself. These consisted of six original tariffs naming different rates with subsequent tariffs supplementary or amendatory thereto.
Twenty-one freight tariffs.
The Massachusetts Railway Commission Reports, the Official Railway Guide, and the Railway Equipment Register do not contain any information with respect to any connections Bay State may have had with steam railroads, its termini, the weight of its rails, or the construc tion of its roads.
The transportation revenues of Bay State show a breakdown as follows : I I CJ1 CD P ct 1-3 p 6 w O P ct H* B P H- 0 p 01 hd s? ct P- O P- t) t CD 1 >-3 fe' >-3 p w P 01 0 C/3P 1 ^ co co • P O P/ P- • H H £ CD P • p i—i P H* P H- H 1 c+ CD 01 01 tv PI CD H- pr Sj P CD p £ K P to 0 1 CD s -O OS m 1 1 03 to -3 to CO to CD O co to to 03 OD -3 If* o c l-l -3 C/3 to OD o o 03 1—| C/3 03 03 o C/3 CD O l l-l If* 03 o H to to 00 If* It* to O l o to CD o CO o 03 • O l H O l O l O l O l -to * 9 «e> o to O l to to o to o o to —3 to Ol 03 to o to 01 to -3 —3 o Ol If* it* H O 00 -3 it* 03 CJl oo O l if* -3 o CO CO If* 03 to 03 o H H M CO If* to CO 03 1 1 o ~3 —3 o o 03 03 01 H O l CO O l H if* H CO to if* if* o -3 03 to it* 03 H to H 03 to if* oo to —3 o 01 03 it* to H CJ1 01 01 O l-i o o to O l CO O l CO to 03 O l to H to H to OD to 03 03 Ol K i 1 to 03 —3 03 CO 03 o it* o H o to CO It* h-> it* if* to to o M to if* O l 03 03 03 if* 01 H —3 to o to if* 03 H Ol to if* M H ro H CO H H 03 if* CO to oo 03 O l to to l-l 03 If* O l 03 03 O l 03 O l < 1 1 1 Cl 1 H H S3 o o -3 03 oo -3 -3 CO CO 03 o -3 03 O -3 03 H —3 —3 if* to M 03 O 03 O CO CO CO CD 03 HH CD 03 H * H CO c o t CD H p —3 l-l if* CD H O l 03 to to 03 03 if* O l o O l Ol 03
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It is clear that the milk revenue was earned from purely local operations. The mail revenues, which remained about the same throughout, were not received from a connecting carrier. Freight reve nues appear for the first time in the year ended June 30, 1914. It is not clear how much of that revenue was interstate and how much local. From the statement of the president of the Boston Elevated Railway Com pany that no interstate freight was carried for Bay State over its lines, it appears that the interstate freight operations were carried on the southern half of the line and were not part of the operations of the entire line.
In 1912, Bay State owned seventeen electric express cars which were increased to thirty-nine by 1918, and all express and freight was handled in such cars. It operated in 1912, 29,509,699 passenger-car miles and 201,265 freight-car miles, including both mail and express-car mileage. The freight-car mileage increased each year until the year 1916, when it reached a high of 873,237 miles as contrasted with the passenger-car miles of 31,567,744. In 1918 there were 814,212 freight- car miles as contrasted with 27,136,868 passenger-car miles.
From the foregoing, it is clear that Bay State was a carrier by railroad subject to part I of the Interstate Commerce Act. However, it does not appear that Bay State was more than a street, suburban or interurban electric railway or that it operated as a part of a or the general steam-railroad system of transportation.
According to the principles laid down by the United States Supreme Court and the Interstate Commerce Commission in decisions on electric lines, a street, interurban or suburban electric railway is one which is essentially local and fundamentally devoted to the carriage of passengers, transacts freight business only incidentally, and is largely disassociated from the steam-railroad systems of transportation.^!/
The annual passenger revenues of Bay State have ranged approxi mately from $8,500,000 to $9,500,000. At no time was the revenue from freight operations greater than five per cent of the revenue from trans portation operations. It does not appear that Bay State had rail connec tions with any steam-railroad systems and it did not interchange equip ment with any other company. Its only connections were with the Boston
2/ See Texas Electric Ry., 208 I.C.C. 193, aff'd in Texas Electric Ry. Co. v. Eastus, 308 U.S. 512 (1939); Piedmont Northern Railway Co. v. Interstate Commerce Commission, 286 U.S. 299, 307; Omaha Street Ry. v. Interstate Commerce Commission, 230 U.S. 324, 33$; Chicago Tunnel Co., et al., 214 I.C.C. 81, 85; Rules for Testing Other Them Steam Power Locomotives, 122 I.C.C. 414, 424. Memo to Mr. | Director of Retirement Claims
Elevated Railway Company and with the Hartford and New York Transpor tation Company at the dock in Providence. It is apparent that very little, if any, of the freight transported by the Hartford and New York Transportation Company was transported by steam railroad inasmuch as Bay State never filed freight concurrences, joint freight tariffs, or freight powers of attorney. Though Bay State did serve a large terri tory, it did not participate in any "tariffs with steam railroads, handle(s) a large amount of various kinds of freight in interstate com merce, and actively compete(s) with steam railroads for the handling of freight traffic." The activities of Bay State were fundamentally devoted to the carriage of passengers and were essentially local; the freight mileage and operations were incidental thereto. Thus, Bay State can be said to have been fundamentally disassociated from the steam-railroad system of transportation.3/
Nor did Bay State possess the characteristics of a commercial electric railroad set forth by the Commission in Texas Electric Railway, 208 I.C.C. 193, 202: "An electric railway which is engaged in the general transportation of freight, whether the revenue therefrom is greater or less than its passenger revenue, which handles the bulk of such freight in standard equipment similar to that used by the steam railroads, which freely interchanges the same with the steam railroads for transportation to or from points on their lines, a considerable portion thereof being handled in interstate or foreign commerce, and which participates in joint rates with the steam railroads for inter state transportation, has more of the characteristics of a commercial railroad operated by electric power than of an interurban as that term is used in the exemption provision under consideration."
In view of the fact that the Boston and Northern Street Rail way Company, the Old Colony Street Railway Company, and the Bay State Street Railway Company were merely street, interurban, or suburban electric railways, not operating as a part of a or the general steam- railroad system of transportation, they fall within the exemption proviso in Section 1(a) of the Act and therefore were never employers thereunder.
General Counsel
3/ See Indiana Railroad, 229 I.C.C. 48, 56; Cincinnati & Lake Erie Railroad Co., 229 I.C.C. 187, 197.