This is а 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 certificatе of public convenience and necessity to - operate
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 Hing-ham; 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 bеtween 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 Al-meida provides service between Hyannis and Boston via Milton, Stoughton, West Bridgewater, Middleboro, Ware-ham, and Buzzards Bay; that no servicе 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 “ [sjubject 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.”
“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 аnd 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 Plymouth, 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 а serious curtailment of public transportation to the Cape area. We believe that rapid, comfortable and adequate bus service between Boston, Plym
'' Accordingly ... it is ordered : That the Plymouth and Brockton Streеt Bailway 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 Boad; on Barnstable Boad between Centre Street and the rotary traffic circle at the junction of Boute[s] 28 and 132; around the said traffic circle; on Iyannough Boad (Bоute 132) between the said traffic circle and the traffic circle and the junction of IT. S. Boute 6 and Boute 132; around the said traffic circle; on TJ. S. Boute 6 to the Barnstable-Sandwich Town Line, sandwich On TJ. S. Boute 6 between the Barnstable Town Line and the Bourne Town Line, bourne On U. S. Boute 6 between the Sandwich-Bourne Town Line and the rotary traffic circle at the intersection of U. S. Boute 6 and Massachusetts Boute 3A; and around said traffic circle, to Plymouth line. Provided, however, that no passengers shall be picked up or disсharged on TJ. S. Boute 6; and it is further ordered :
That the Department’s investigation in D. P. TJ. 13419 be and the same is hereby terminated and closed.'' 1
The parties have stipulated that the certificate of 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 cоntends 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 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 the case at hand, the licenses from the towns of Barn-stable, 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 the date of issuance. The question, then, is whether G. L. c. 159A, § 4, by referring to a “certificаte . . . obtained within three years after the date ’ ’ when a license is issued, requires us to look only to the actual date of issuance of the certificate to determine its validity, or whether the department can use the device of an order nunc pro tunc to set an earlier date.
The Supreme Judicial and the Superior courts have statutory power to issue judgments, orders, and decrees nunc pro tune. G. L. c. 235, § 4. The statute is declaratory of the common law.
Perry
v.
Wilson,
The cases in Massachusetts do not involve the question of the power of administrative agencies to enter decisions and orders nunc pro tunc. In other jurisdictions where the question has arisen, the rules relating to nunc pro tunc orders generally apply to administrative agencies and quasi-judicial commissions.
Ricketts
v.
Hiawatha Oil & Gas Co.
The hearing before the department on P and B’s petition was closed on January 6,1961. The record in the P and B case was incorporated in the proceedings of the Almeida case on March 16, 1961; but the cases were kept separate and distinct. P and B made a timely application for its certificate. It presented its case more than two months before the expiration of the licenses issued in February, 1958. The last hearing on January 6, 1961, ended more than a month before such expiration. When the department closed the case and deliberated on the merits of the petition, P and B could take no further action. It could only wait for a decision. It would be unfair to deny P and B a certificate simply because of the lapse of time required to enable the department to render a considered decision. The injustice could be corrected by entеring the date of the certificate
2. Almeida further contends that the order of June 7, 1961, was invalid because the department failed to give Almeida adequate notice and opportunity to be heard regarding that order. Almeida’s brief embarks on an examination of the State Administrative Procedure Act, G-. L. c. 30A, in an attemрt to support its position on adequate notice in “adjudicatory proceedings.” There is, however, a simpler approach which shows its contention to be without merit.
In
Fortier
v.
Department of Pub. Util.
In the instant case, it has already been established that the department hаd the power to enter a decision and order
3. Almeida’s final contention is that the department’s findings were not supported by substantial evidence indicating that the public convenience and necessity required a granting of P and B’s petition. In this connection, it argues that there was no substantial demand for the service proposed by P and B; and further, that, inasmuch as existing carriers provide adequately for the public convenience and necessity, the department has erroneously “departed from its established policy to protect an existing carrier in a franchised area from encroachment by other carriers.” It thus asserts that the department’s decision is “arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.” See G. L. c. 30A, § 14 (8) (g). We do not agree.
“One of thе duties of judicial review is to determine ‘upon consideration of the entire record’ whether substantial rights have been prejudiced because the agency decision was ‘unsupported by substantial evidence. ’ G. L. c. 30A, § 14 (8).”
Salisbury Water Supply Co.
v.
Department of Pub. Util.
In the case at bar, we think that the department’s findings are supported by “substantial evidence.” Concerning public demand and need for the proposed service, there is evidence that the “New Haven” Railroad is no longer serving the area; that the population in southeastern Massachusetts is increasing; that Almeida does not serve the area between Plymouth and Boston; that the only way that passengers living between Boston and Plymouth can reach Hy-annis by bus without a change to The Short Line would be via the service proposed by P and B; that the infrequent connections at Sagamore traffic circle cause great loss of time and inconvenience to passengers who must now transfer; that many people and organizations requested direct service from Hyannis to Plymouth and Boston; that under present circumstances fourteen to sixteen passengers of P and B drive daily by car from Barnstable or Hyannis to Kingston or Sagamore to ride P and B’s buses to Boston; and that P and B contemplates two or three trips a day over its proposed route, and double that number in summer. We think that this evidence substantially supports the department’s finding that existing carriers do not provide adequately for the public convenience and necessity.
There is further evidence that P and B offers superior service; that P arid B operates several routes in the Boston-
It is true that the grant of a certifiсate to P and B creates a situation in which both carriers have authority to operate between Boston and Hyannis. Indeed, the concurrent grant of Almeida’s petition for an additional line now establishes three separate routes between these same points. Although each route serves intermediate towns different from those served by the other routes, nevertheless some competition might arise for the patronage from Hyannis to Boston and from Boston to Hyannis. However, in view of the findings that existing service between these points is inadequate, and that the proposed service by P and B is required by the public convenience and necessity, we cannot say as a matter of law that the existence of such competition is so incompatible with the public convenience and necessity as to render the department’s decision “arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.” See
Santee
v.
Brady,
4. A final decree is to be entered affirming the orders.
So ordered.
Notes
Commissioners Begley and Cleary, dissenting: “We have dissented from the opinion of the majority for the reason that it has been the long established policy of this Department to protect an existing carrier in a franchised area from encroachment by other carriers. In D. P. U. 12955, petition of Hyannis
Scenic Tours, Inc. dated August 11, 1955, we stated: 'It has always been the policy of this Department to protect the operations of established regular route common carriers insofar as possible and in the instant proceedings we do not believe we would be justified in granting authority to another carrier to perform operations which would have an adverse effect upon the revenues and operators of the regular route common carrier in the area. ’
“We are of the opinion that no justification exists in this case to grant authority to Plymouth and Brockton Street Railway to service the area between Sagamore and Hyannis since an existing carrier namely, Almeida Bus Lines, Inc. рrovides almost similar service. To grant the petition would mean
“We are of the opinion that the long standing policy of this Department is as sound now as when originally advocated. Any departure from this policy would tend to contravene the intent of legislation passed for the protection of existing carriers.”
The certificate issued P and B states, inter alia: “In accordance with the vote of the Commission of the Department of Public Utilities, dated June 7, 1961 (D. P. U. 13419-A), this certificate shall be deemed to have been issued on February 1, 1961.”