A. B. & C. Motor Transp. Co. v. Department of Public Utilities

• Decision Date: 30 January 1953
• Citation: 110 N.E.2d 377,329 Mass. 719
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: A. B. & C. MOTOR TRANSP. CO., Inc. et al. v. DEPARTMENT OF PUBLIC UTILITIES.

Page 377

110 N.E.2d 377

329 Mass. 719

A. B. & C. MOTOR TRANSP. CO., Inc. et al. v. DEPARTMENT OF PUBLIC UTILITIES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 1, 1952.

Decided Jan. 30, 1953.

James J. Weinstein, Boston, for plaintiffs.

David H. Stuart, Asst. Atty. Gen., for respondent.

Before QUA, C. J., and LUMMUS, RONAN, WILLIAMS and COUNIHAN, JJ.

LUMMUS, Justice.

This is a bill in equity under G.L. (Ter.Ed.) c. 25, § 5, brought by five corporate carriers of property by motor vehicle in this Commonwealth, competitors of William C. Barry, Inc., to review the order of the defendant department whereby the defendant approved the transfer by William C. Barry, Inc., to three separate transferees of three certificates of public convenience and necessity held by William C. Barry, Inc. The bill alleges that William C. Barry, Inc., was out of business before the assailed transfer was approved. It has already been determined that the plaintiffs as competing carriers are parties aggrieved entitled to contend that the approval is unlawful. A. B. & C. Motor Transportation Co., Inc., v. Department of Public Utilities, 327 Mass. 550, 100 N.E.2d 560.

General Laws (Ter.Ed.) c. 159B, § 11, now contains a provision inserted by St. 1948, c. 616, § 1, and carried on by St.1950, c. 186, by which the general power of the department to approve and consent to the transfer of a certificate, permit or license is subject to the limitation that 'no certificate and no permit shall be transferred except in connection with the bona fide sale to the transferee of the business of the transferor'. The decisive question in the present case is whether, after November, 1949, William C. Barry, Inc., had any business as carrier which could be sold 'bona fide' and in connection with which the certificates could be transferred.

The department found that William C. Barry, Inc., held three certificates authorizing the carriage of property for hire, one for a regular route between Boston and Greenfield, another for a regular route between Boston and Worcester, and a third for unrestricted irregular route operations throughout the Commonwealth. Prior to June, 1949, it conducted extensive operations using thirty-five trucks. In that month the principal owner of that corporation was ordered by his physician to retire from active business. Accordingly that corporation sold all its trucks and equipment except one small old truck, and thereafter 'if it did any business under these certificates between November, 1949, and March, 1950 [or afterwards], it was only fragmentary and occasional in nature.' Upon the foregoing facts, the department ruled that there was some 'business' which bona fide could be sold, and that it did not matter whether the business was substantial or not. The department stated that 'so long as the certificates are outstanding and so long as there is no determination that the carrier had abandoned them, we believe that the certificate holder may be presumed still to be in business and testimony that his business is negligible is immaterial upon an application for transfer of the certificate.' By implication at least the department found that there was 'a proposed...