They have no relation to the tax laws, although they may indirectly affect municipal revenues. The case at bar also is distinguishable from the numerous decisions to the effect that "other terms, conditions and obligations in addition to the general provisions of law" may lawfully be inserted in locations, such as Newcomb v. Norfolk Western Street Railway, 179 Mass. 449, Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294, Selectmen of Hyde Park v. Old Colony Street Railway, 188 Mass. 180, and Selectmen of Wellesley v. Boston Worcester Street Railway, 188 Mass. 250. The contract upon which this action is brought relates to the subject of taxation, which in essence is and must be authorized by a general law.
The general doctrine is that conditions and terms inserted in a license by a public board not authorized or warranted by law are void. Even express acceptance of them by the licensee has been held to be ineffectual. Keefe v. Lexington Boston Street Railway, 185 Mass. 183. Selectmen of Wellesley v. Boston Worcester Street Railway, 188 Mass. 250, 253. Selectmen of Clinton v. Worcester Consolidated Street Railway, 199 Mass. 279, 285. Regina v. Mann, L. R. 8 Q. B. 235. Exceptions overruled.Appeals dismissed.
As matter of construction of the act of incorporation, it cannot be held that the development of power was the dominant purpose for which the company was organized and the canal only incidental and subsidiary. The case in this particular is distinguishable from cases like Selectmen of Wellesley v. Boston Worcester Street Railway, 188 Mass. 250; Mount Hermon Boy's School v. Gill, 145 Mass. 139, and Tulane University of Louisiana v. O'Connor, 192 Mass. 428, upon which the petitioner relies. The case at bar also is distinguishable from other instances of corporations with one paramount purpose compulsorily or voluntarily assuming other incidental and subsidiary functions partaking of a different nature without affecting their chief and inherent character.
Reasons which might apply under such circumstances, therefore, may be laid on one side. See Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294; Selectmen of Wellesley v. Boston Worcester Street Railway, 188 Mass. 250; Mayor Aldermen of Worcester v. Worcester Consolidated Street Railway, 192 Mass. 106; Selectmen of Clinton v. Worcester Consolidated Street Railway, 199 Mass. 279. The point now presented for decision has never before arisen in this Commonwealth. It has nothing to do with the repair of the surface of highways for general travel. Cases like Leary v. Boston Elevated Railway, 180 Mass. 203, and Hyde v. Boston, 186 Mass. 115, have no bearing.
Selectmen of Clinton v. Worcester Consolidated Street Railway, 199 Mass. 279. It is there pointed out also that the earlier cases of Keefe v. Lexington Boston Street Railway, 185 Mass. 183, and Selectmen of Wellesley v. Boston Worcester Street Railway, 188 Mass. 250, arose under different and more recent provisions of law and are not inconsistent with this view. The location now under consideration became operative less than one month before St. 1898, c. 578 went into effect, which among other matters marked a change in the policy of the Legislature upon the subject of fares and deprived local boards of the power to regulate fares theretofore possessed by them.
There is nothing in our previous decisions at variance with the conclusion which we have reached. Keefe v. Lexington Boston Street Railway, 185 Mass. 183, as we have already seen, and Selectmen of Wellesley v. Boston Worcester Street Railway, 188 Mass. 250, turned upon the provisions of St. 1898, c. 578, which materially altered the prior statutes. Springfield v. Springfield Street Railway, 182 Mass. 41, and Worcester v. Worcester Consolidated Street Railway, 182 Mass. 49, dealt with extensions of locations granted to already existing corporations, and not, as here, to original locations granted to directors of a corporation in process of formation and subsequently becoming the very basis of the company's corporate existence.
The entire requirements of the third section of the order accordingly must be held as having been within the jurisdiction of the board of aldermen, and therefore valid. Newcomb v. Norfolk Western Street Railway, 179 Mass. 449. Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294. Selectmen of Hyde Park v. Old Colony Street Railway, 188 Mass. 180. Selectmen of Wellesley v. Boston Worcester Street Railway, 188 Mass. 250, 253. But it is further cogently argued that the St. of 1898, c. 578, now R.L.c. 112, § 7, which repealed Pub. Sts. c. 113, § 7, did not recognize or ratify the validity of original orders requiring the surface construction of streets, or of their subsequent maintenance, and which had been passed under the authority of previous statutes, and consequently since the passage of this act the order in this particular becomes a nullity.