Almeida Bus Lines, Inc. v. Department of Public Utilities

• Decision Date: 07 January 1965
• Citation: 348 Mass. 331,203 N.E.2d 556
• Parties: ALMEIDA BUS LINES, INC. v. DEPARTMENT OF PUBLIC UTILITIES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 556

203 N.E.2d 556

348 Mass. 331

ALMEIDA BUS LINES, INC. v. DEPARTMENT OF PUBLIC UTILITIES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1964.

Decided Jan. 7, 1965.

Frank Daniels, Boston (Philip A. Wharton, Boston, with him), for Almeida Bus Lines, Inc.

William Minot, Boston, for Plymouth and Brockton Street Ry. Co.

Carter Lee, Asst. Atty. Gen., for Dept. of Public Utilities.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK and SPIEGEL, JJ.

SPIEGEL, Justice.

This is a consolidated appeal by Almeida Bus Lines, Inc. (Almeida), under G.L. c. 25, § 5, as amended through St.1956, c. 190, from two orders of the department. The first order, dated May 19, 1961, granted a certificate of public convenience and necessity to the Plymouth and Brockton Street Railway Company (P and B). The second order, dated June 7, 1961, directed that the certificate 'bear a date as of February 1, 1961.' The single justice reserved and reported the case without decision.

On September 28, 1960, P and B filed a petition for a certificate of public convenience and necessity for the operation of passenger buses through Barnstable, Sandwich, and Bourne. P and B had obtained licenses from these towns on February 17, 19, and 21, 1958, and had filed them with the department. On December 12, 1960. and January 6, 1961, after due notice to all parties, the department held public hearings on P and B's petition, which Almeida opposed. On January 4, 1961, Almeida, the appellant in the instant case concerning P and B's petition, applied for a certificate of public convenience and necessity to operate passenger buses for hire over certain public ways in Bourne, Plymouth, Kingston, and other towns. On March 16, 1961, the department held a public hearing on that petition, which P and B opposed. At the start of the Almeida hearing, both parties agreed that the record of P and B's hearing be incorporated in the record of Almeida's hearing.

On May 19, 1961, the department issued a decision and order in both cases, granting the certificates for which the parties respectively petitioned. The decision in P and B's case (D.P.U. 13419) recites that P and B operates routes between Boston and Sagamore traffic circle via Plymouth, Kingston, Duxbury, Pembroke, Hanover, Norwell, and Hingham; and that it operates other routes from Marshfield to Boston, from Greenbush to Boston and from Plymouth to Brockton. It sets out that P and B's petition seeks to extend the Boston-Sagamore route southeast to Hyannis, thereby providing service between Hyannis and Boston, as well as between Hyannis and points between Sagamore and Boston. It further indicates that P and B agreed not to pick up or discharge passengers on Route 6; that local licenses have been received by P and B from the towns of Barnstable, Sandwich, and Bourne; that there is service between Hyannis and Providence via Sagamore traffic circle where passengers can transfer to P and B buses; that Almeida provides service between Hyannis and Boston via Milton, Stoughton, West Bridgewater, Middleboro, Wareham, and Buzzards Bay; that no service exists, however, between Hyannis and points between Sagamore traffic circle and Boston; that P and B proposes to operate two or three trips a day, and perhaps double that number during summer months; that rates would be roughly double the current fare between Plymouth and Boston; that an unlimited ten-ride ticket would cost about $24.50; and that the trip would take about two hours. It also recites that '[s]ubject to the imposition of a 'closed door' restriction on Route 6, The Short Line Bus Company did not object to the granting of the petition,' but that Almeida 'did object, contending that the granting of the petition would place * * * [P and B] in direct competition with it for Cape traffic.'

The remainder of the decision and order states as follows: 'Travelling a Short Line bus to Sagamore circle and then transferring to a bus of the Company for Boston and the return trip in this manner, are wholly unsatisfactory methods of travel at the present time. Because the buses are infrequent, a delay of one of the buses can cause passengers intending to transfer to lose the connecting bus, in which case the passenger must wait for several hours. These circumstances discourage patronage.

'It is correct that there is service between Hyannis and Boston via Middleboro but the record is persuasive that this service does not satisfy the public convenience and necessity. It is the practice, wherever possible, to preserve the territory of a carrier without hurtful competition from other carriers. In this case we are convinced that our action in granting this petition is in the public interest and not a contravention of the spirit of our usual practice under ordinary and normal conditions. At the present time many people drive their automobiles to Sagamore circle or to Kingston from Hyannis and there board Company buses, rather than use the Almeida Bus Line Service. This is, no doubt, partly due to the directness of the route, but it is also in large part due to the reliable, comfortable service provided by the Company. This service is superior to the service which the record demonstrates has been provided by Almeida. The public is entitled to the best service available.

'Moreover, there was a substantial amount of evidence indicating a demand for service between Hyannis and the environs of Plymonth, which is not provided over routes of the Almeida Bus Lines.

'Conditions have changed very substantially since this question was last before the Department. At that time the New Haven [Railroad] was providing regular service between Boston and the Cape area. This service has been discontinued, resulting in a serious curtailment of public transportation to the Cape area. We believe that rapid, comfortable and adequate bus service between Boston, Plymouth and the Cape is of great importance to the public, not only those people actually using the service but those who are interested in the substantial summer tourist business located on the Cape. We, therefore, find tht public convenience and necessity requires [sic] the granting of the petition.

'Accordingly * * * it is ORDERED: That the Plymouth and Brockton Street Railway Company be granted a certificate of public convenience and necessity for the operation of motor vehicles for the carriage of passengers for hire over the following described routes: BARNSTABLE In Hyannis on Main Street to Centre Street; on Centre Street between Main Street and Barnstable Road; on Barnstable Road between Centre Street and the rotary traffic circle at the junction of Route[s] 28 and 132; around the said traffic circle; on Iyannough Road (Route 132) between the said traffic circle and the traffic circle and the junction of U.S. Route 6 and Route 132; around the said traffic circle; on U.S. Route 6 to the Barnstable-Sandwich Town Line. SANDWICH On U.S. Route 6 between the Barnistable Town Line and the Bourne Town Line. , BOURNE On U.S. Route 6 between the Sandwith-Bourne Town Line and the rotary traffic circle at the intersection of U.S. Route 6 and Massachusetts Route 3A; and around said traffic circle, to Plymouth line. Provided, however, that no passengers shall be picked up or discharged on U.S. Route 6; and it is further ORDERED: That the Department's investigation in D.P.U. 13419 be and the same is hereby terminated and closed.' ¹

On June 7, 1961, the department issued an order, relating to P and B's petition, reading in part as follows: 'It appearing that the failure to issue a certificate of public convenience and necessity, nunc pro tunc, may result in a failure of justice, it is VOTED: In order to prevent a failure of justice, the Director of the Railway and Bus Division of the Department is hereby directed to issue a certificate of public convenience and necessity in accordance with the vote of this Commission of May 19, 1961, said certificate to bear a date as of February 1, 1961.' ²

The parties have stipulated that the certificate ou public convenience and necessity issued to P and B in this case (D.P.U. No. 13419) is the only one ever granted 'in consequence of the use of the local licenses issued by the Town of Barnstable on February 19, 1958, Town of Sandwich on February 21, 1958, and Town of Bourne on February 17, 1958.'

1. Almeida first contends that the department had no authority to issue a certificate to P and B because the local licenses upon which the certificate was based had expired before the date of issuance. In this connection, it argues that G.L. c. 159A, § 4, specifically limits the duration of the licenses censes to three years and cannot be circumvented by the granting of a certificate nunc pro tunc.

General Laws c. 159A § 1, requires that persons 'transporting passengers for hire as a business between fixed and regular termini' by 'motor vehicle upon any public way in any city or town' must first obtain 'a license for such operation from the city council of such city or the selectmen of such town, in this chapter called the licensing authority.' Under G.L. c. 159A, § 4, as amended by St.1945, c. 318, § 1, a local license expires at the end of three years unless a 'certificate of public convenience and necessity under section severn is obtained within three years after the date when such license is issued by the licensing authority * * *.' Thus, possession of a valid local license, i. e., one that has been issued within three years, is a prerequisite to the issuance of a valid certificate. See Rep.D.P.U.Pub.Doc. No. 14, 1925, p. 4.

In the case at hand, the licenses from the towns of Barnstable, Sandwich, and Bourne were issued to P and B on February 17, 19, and 21, 1958; whereas the certificate from the department was issued in fact on May 19, 1961, more than three years later, although the order nunc pro tunc of June 7, 1961, assigns the date of February 1, 1961, as...