Town of Wilmington v. Department of Public Utilities

• Decision Date: 03 March 1960
• Parties: TOWN OF WILMINGTON v. DEPARTMENT OF PUBLIC UTILITIES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 99

165 N.E.2d 99

340 Mass. 432

TOWN OF WILMINGTON v. DEPARTMENT OF PUBLIC UTILITIES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 2, 1960.

Decided March 3, 1960.

Philip B. Buzzell, Boston, for Town of Wilmington.

James J. Kelleher, Asst. Atty. Gen., for Department of Public Utilities.

Joseph Auerbach, Neal Holland, Boston, for Boston & M. Rd.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

Under G.L. c. 25, § 5, the town of Wilmington filed a petition for appeal in the county court seeking a review of a decision of the department of public utilities on a petition of the Boston and Maine Railroad (hereinafter called the railroad) for the discontinuance of certain passenger stations and passenger service. The department and the railroad demurred on the ground that the town had no standing under § 5 to obtain a review of the department's decision. No question touching the merits is involved. A single justice of this court reported the question without decision. The case comes here on the petition for appeal and the demurrers.

We summarize the petition as follows: On December 5, 1958, the railroad filed a petition with the department which, among other things asked for its approval, under G.L. c. 160, §§ 128, 128A, and 129, to discontinue all passenger service at the North Wilmington station on the western route main line of its railroad; for its approval of the discontinuance of all passenger trains over the portion of the western route main line between Reading station (which was to be relocated south of Main Street in Reading) and Wilmington Junction where the single track line ('wild cat' branch) connecting with the New Hampshire route main line joins the western route; for its approval of a plan to make the relocated station at Reading the terminus of a shuttle passenger train service between Reading and Boston and to furnish passenger train service by a route which would by-pass the North Wilmington station; and for its approval of a plan to relocate the Woburn station on the so called 'Woburn loop' in such a way that no passenger trains would operate over the remaining section of the 'Woburn loop' between Woburn and Wilmington. By these changes, all train service between Woburn and Wilmington, and between North Wilmington and all points both north and south was to be eliminated. The Wilmington station, located at a distance of two and one half miles from the North Wilmington station, was to be used by passengers now using the latter station. Both the Wilmington and North Wilmington stations are within the town of Wilmington.

The town, through its counsel, duly entered an appearance in opposition to the granting of those portions of the petition above set forth, and 'took an active part in the public hearings which were held by the department upon the railroad's petition, by cross-examination of the railroad's witnesses, presentation of evidence on its own behalf, filing requests for rulings of law, and oral argument and the filing of a * * * brief.'

The department entered a final decision on May 12, 1959. With respect to the western route main line, it approved the proposal for the elimination of all passenger train operations between the relocated Reading station and Wilmington Junction, and the resulting elimination of all passenger service at North Wilmington. Other portions of the plan were also approved by the department; it did, however, order the establishment of a station and the stopping of certain trains at the crossing of the 'wild cat' branch over Salem Street in North Wilmington. 'No approval was ever given by the Wilmington selectmen for any of the station eliminations or relocations in Wilmington.' The town presented fifteen requests for rulings but the department took no action with respect to them. See G.L. c. 25, § 5 (first paragraph).

The town argues that it has standing to seek judicial review of the department's decision by reason of G.L. c. 40, § 5, cl. 16. Section 5 provides in part that 'A town may at any town meeting appropriate money for the exercise of any of its corporate powers, including the following purposes: * * * (16) For prosecuting or defending proceedings, however instituted, before a court, the department of public utilities, or any other public board or commission exercising the same or similar powers, in all matters relative or incidental to the prescribing of rates or fixing of charges by public service corporations or the exercise of rights under their franchises.' This statute, the town contends, gave it the right to become a party before the department and, as the petition for appeal shows, the town exercised that right; thus, having become a party, and the decision of the department having been adverse to its position, the town is 'an aggrieved party in interest' within G.L. c. 25, § 5, and may bring this petition for appeal.

The difficulty with this argument is that the premise on which it is based is unsound. We are of opinion that G.L. c. 40, § 5, cl. 16, did not undertake to define the instances where a town might have legal standing as a party before a court, the department, or 'other public board or commission.' It went no farther than to provide that where, under other provisions of law, a town becomes a party in proceedings before such tribunals the town is authorized to appropriate money for prosecuting or defending the proceedings, provided they are of the sort specified in clause 16, namely, 'matters relative or incidental to the prescribing of rates or fixing of charges by public service corporations or the exercise of rights under their franchises.' The construction for which the town contends would mean that, whenever towns were involved in any administrative proceeding set forth in clause 16, the provisions of the State administrative procedure act (G.L. c. 30A, § 1) defining parties in adjudicatory proceedings would have no application. We recognize, of course, that clause 16 was enacted long before c. 30A. But the two statutes must be read together and a construction of clause 16 that would result in by-passing c. 30A in such an important matter as who may become parties ought to be avoided unless the legislative intent to the contrary is clear. We find no such intent. If the town has any standing to bring this petition for appeal it must be found elsewhere than in clause 16.

In City of Newton v. Department of Pub. Util., Mass., 160 N.E.2d 108, it was held that procedure before the department is now governed by the State administrative procedure act. G.L. c. 30A. And it was likewise held in that case, which...