Becker Transp. Co. v. Dep't of Pub. Utilities

• Citation: 314 Mass. 522,50 N.E.2d 817
• Parties: BECKER TRANSP. CO., Inc. v. DEPARTMENT OF PUBLIC UTILITIES.
• Decision Date: 14 September 1943
• Court: United States State Supreme Judicial Court of Massachusetts

314 Mass. 522

50 N.E.2d 817

BECKER TRANSP. CO., Inc.

v.DEPARTMENT OF PUBLIC UTILITIES.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 14, 1943.

Case Reserved from Supreme Judicial Court, Suffolk County.

Bill by Becker Transportation Company, Inc., against the Department of Public Utilities to annual an order revoking a permit issued to plaintiff as a contract carrier by motor vehicle. A single justice reserved the case for the full Supreme Judicial Court without decision.

Decree for plaintiff.

Before FIELD, C. J., and DONAHUE, LUMMUS, QUA, DOLAN, COX, and RONAN, Jj.

R. G. Dodge and W. I. Schell, both of Boston, for plaintiff.

R. Clapp, Asst. Atty. Gen., for defendant.

LUMMUS, Justice.

This is a bill in equity under G.L. (Ter.Ed.) c. 25, § 5, to annual an order of the department of public utilities revoking a permit issued to the plaintiff on December 6, 1935, as a contract carrier by motor vehicle under G.L.(Ter.Ed.) c. 159B, inserted by St.1934, c. 264, as amended by St.1935, c. 24. Later amendments are found in St.1936, c. 345, St.1937, c. 122, St.1937, c. 381, and St.1938, c. 332. The chapter was wholly redrafted by St.1938, c. 483, after the permit in question was revoked. A single justice reserved the case for the full court without decision.

By G.L.(Ter.Ed.) c. 159B, § 7, as it appears in St.1934, c. 264, the following provision is made: ‘The department may revoke any certificate or permit for wilful and repeated violations of any of the provisions of this chapter or the regulations of the department made under authority thereof, after a hearing, at least ten days' notice of which shall be given to the holder of the certificate or permit. Any such certificate or permit shall remain in effect unless and until revoked by the department as herein provided.’ A ‘certificate’ was required in the case of a common carrier by motor vehicle, and a ‘permit’ in the case of a contract carrier by motor vehicle. The amendment made by St.1936, c. 345, § 3 (unaffected by St.1938, c. 332), made the provision for revocation read as follows: ‘The department may revoke, or suspend for such period of time as it may deem fit, any certificate or permit in whole or in part for wilful and repeated violations of any provision of this chapter or of the regulations of the department made under authority thereof, after a hearing, at least ten days' notice of which shall be given to the holder of the certificate or permit. Any such certificate or permit shall ramain in effect unless and until revoked by the department as herein provided, but subject, however, to suspension as aforesaid.’ See now G.L.(Ter.Ed.) c. 159B, § 12, inserted by St.1938, c. 483, § 1.

The allegations of the will were admitted by the answer, and were substantially as follows. The plaintiff is a Masschusetts corporation engaged under a permit in the transportation of petroleum products as a contract carrier. It operates twenty trucks and employees many persons as drivers and in order capacities. Its business is large and it has made a substantial investment of money. On August 27, 1935, the commission, under St. 1935, c. 405, established a commercial motor vehicle division under the charge of a director, and gave it power to revoke permits, subject to appeal to the commission. On October 2, 1936, the department, after a hearing, found that the plaintiff had violated the law by requiring certain drivers to operate trucks for more hours a day than were lawful under G.L.(Ter.Ed.) c. 159B, § 9, as amended by St.1936, c. 345, § 4. The department on that day ordered that the plaintiff's permit be suspended for two weeks beginning October 15, 1936. On October 13, 1936, pursuant to an arrangement made with one Cooperstein, an uncle of the president of the plaintiff, the plaintiff's trucks were transferred to Cooperstein, who applied to the department for a permit to operate them as a contract carrier. The department, being informed that Cooperstein had obtained the trucks from the plaintiff, granted the permit. The trucks were registered in the name of Cooperstein and operated by him from October 15, 1936, to October 30, 1936, under an agreement with the plaintiff by which the plaintiff was to pay all expenses and was assigned all the receipts and earnings. The plaintiff continued to direct the operation of the trucks. On October 30, 1936, Cooperstein retransferred the trucks to the plaintiff, they were again registered in the name of the plaintiff, and the plaintiff resumed operations under its permit, the suspension having expired. The transactions just recited were carried out under the advice of the plaintiff's attorney, and the plaintiff believed that they were lawful and proper.

Nearly a year later, on October 13, 1937, one Riley, the director of the commercial motor vehicle division of the department, caused a notice to be given to the plaintiff of a hearing to be held on October 22, 1937, at which the plaintiff was ordered to show cause why its permit should not be revoked ‘for wilful evasion of the order of the department dated October 2, 1936.’ After the hearing, Riley, on December 20, 1937, ordered that the plaintiff's permit be revoked as of December 31, 1937, on the ground that the plaintiff and Cooperstein ‘knowingly conspired to permit * * * [the plaintiff] to nullify the order of the department and conduct the business of a contract carrier in violation of the suspensory order’ of October 2, 1936.

The plaintiff appealed to the commission. G.L.(Ter.Ed.) c. 25, § 4. On June 8, 1938, the commission, acting by a majority of the commissioners with one commissioner dissenting, found that the transaction with Cooperstein was ‘for the purpose of continuing the business and not suspending operations as ordered by the commission’; that when the plaintiff transferred the trucks to Cooperstein no person in the department knew that the contract carrier permit issued to Cooperstein was in furtherance of his written agreement with the plaintiff; that Cooperstein secretly agreed to allow the plaintiff to continue in business as a contract carrier in violation of the order of suspension under cover of a permit issued to Cooperstein; that Cooperstein did not operate the trucks as a contract carrier, but the plaintiff continued without interruption its business as a contract carrier, notwithstanding the order of suspension; and that the plaintiff and Cooperstein conspired to allow the plaintiff to operate unlawfully as a contract carrier under a permit granted to Cooperstein by reason of his misrepresentation that he was ‘willing’ to perform the service of contract carrier. G.L.(Ter.Ed.) c. 159B, § 5 (St.1934, c....