342 Mass. 662 | Mass. | 1961
The city of Boston and the Attorney General petition for an appeal from the decision of the Department of Public Utilities (Department) approving a petition of The Boston Terminal Corporation (Terminal) for permission to amend an operating agreement and to sell the South Station in Boston. See G. L. c. 25, § 5. Terminal was allowed to intervene as a respondent. A single justice reserved the cases without decision for the consideration of the full court.
The facts are as follows: On June 16, 1960, Terminal filed a petition under G. L. c. 160, § 131A, for the Department’s approval of an amendment of the operating agreement between Terminal, The New York, New Haven and Hartford Railroad Company, and the New York Central Railroad Company, and of Terminal’s proposed sale of the South Station in Boston. On June 13, 1952, the Department had found, under the authority of G. L. c. 160, § 131A, that ownership and operation of the South Station by Terminal would be in the public interest, provided that any operating agreement entered into in connection with this operation would be subject to the Department’s approval. On October 23, 1952, the Department approved an operating agreement between Terminal and the two railroads. The first part of the 1960 petition deals with a proposed amendment to the 1952 operating agreement which had given each railroad exclusive use of certain floors of the South Station and had provided for joint use of certain
The second part of the petition is a request for approval of the sale of the building. Terminal challenged the Department’s jurisdiction over the matter, but this objection is not now pressed.
The Department decided that the only change in the
The city and the Attorney General, having been permitted to participate in the proceedings (see Wilmington v. Department of Pub. Util. 340 Mass. 432, 436-439), both appeal on the ground that the Department could not approve the sale of the station because the prospective purchaser was not made a party. The city also contends that the Department “committed an error of law in not allowing counsel for the city ... to examine the prospective purchaser . . . who was present during the hearing.” Terminal, as intervener, and the Department filed answers which were essentially the same; each took the position that the Department did not err in ruling that the prospective purchaser was not required to be a party to the proceedings. Terminal also demurred to both petitions for appeal, taking the same position as that set forth in its answers; in both its answer and its demurrer to the Attorney General’s petition Terminal set up the additional ground that the Attorney General had no standing to appeal.
Since, with the exception just noted, the demurrers and answers raise the same questions, there is no need to discuss the demurrers separately, for these questions will be covered by our discussion of the merits. The special ground (no standing to appeal), set up in the answer and demurrer to the Attorney General’s petition, need not be dealt with for reasons presently appearing. The objections of the Attorney General are fully pressed by the city (see Newton v. Department of Pub. Util. 339 Mass. 535, 542, n. 1). We recognize that troublesome questions may arise where the Attorney General is representing both a department or commission whose decision is called in question, and the public or some portion of it. See Wilmington v. Department of Pub. Util. 340 Mass. 432, at page 438. But since the Attorney General has certain common law responsibilities with respect to the enforcement of public
In holding that the point raised by the Attorney General (that the prospective purchaser should have been made a party) is before us on the city’s petition, it becomes necessary to consider Terminal’s contention that the city has not properly brought this question here. It does not appear that the city ever requested a ruling before the Department to the effect that the prospective purchaser was an indispensable party. In support of its contention, Terminal directs our attention to G. L. c. 25, § 5, which provides that “ [w]hen so requested by any party interested, the commission shall rule upon any question of substantive law properly arising in the course of any proceeding before the commission . . . and any party interested aggrieved by such ruling may object thereto, and may secure a review as hereinafter provided.”
(1) Passing to the merits, the first question is whether the Department could have given its approval to the sale of the station even though the prospective purchaser was not made a party to the proceedings. The answer lies in the plain language of the statute. Section 131A of G. L. c. 160 (inserted by St. 1948, c. 639)
(2) The next contention of the city is that the Department erred in refusing to call one Goode, who was the purchaser named in the agreement of sale and was to be the principal stockholder of the corporation that would eventually take title to the property. Goode was present at the hearing and the city asked that he be ordered to take the stand. The Department denied the request. This point could very well be disposed of on the ground that the city
A final decree is to be entered in each case affirming the decision of the Department.
So ordered.
The eases were reserved on the petitions for appeal, the demurrers, the answers, and the record, including the transcript and the exhibits, which constituted the complete record before the Department.
In its decision the Department took the view that since the terms of a sale of terminal facilities “could weU affect their operations,” it must examine the terms of the sale to determine “whether the operation of the terminal facilities can be conducted properly after the consummation of the sale. ’ ’
This procedure governs, rather than that provided in the State administrative procedure act. G. L. c. 30A. See Newton v. Department of Pub. Util. 339 Mass. 535, 543, n. 2.
The third sentence in § 5 reads, “An appeal as to matters of law from any final decision, order or ruling of the commission may be taken to the supreme judicial court by an aggrieved party in interest . . ..”
The background of, and reasons for, the enactment of § 131A are set forth in 1948 House Doc. No. 2360.
The Department also gave as a reason for not permitting Goode to testify the fact that he was not under summons. Since there were other grounds, discussed above, on which the exclusion of Goode’s testimony may be sustained we need not decide whether this ground was correct. See Wigmore on Evidence (3d ed.) § 2199; G. L. c. 25, § 5A.
No question is raised, whether Terminal can still be entitled to o-perate the facilities if it does not own them. It should be noted, however, that the meaning of the word “own” may vary according to the context in which it occurs. See Marcus v. Board of St. Commrs. of Boston, 252 Mass. 331, 334; Animal Rescue League of Boston v. Assessors of Bourne, 310 Mass. 330, 333.