342 Mass. 728 | Mass. | 1961
Fortier’s consolidated petitions for appeal pursuant to G. L. c. 25, § 5, challenge an order of the department of public utilities of October 13, 1959, and, if that order is invalid, an order of September 15,1959, which was in terms rescinded by the October order. The cases were reserved and reported by a single justice without decision.
The department, by decision dated September 15, 1959, and “corrected order” of October 13,1959, acted favorably upon the petition of Peter Pan Bus Lines, Inc. (Peter Pan), dated January 29, 1959, requesting that the department (1) amend certificate No. 3089, which authorized Peter Pan’s service from Springfield to Northampton, by extension of service through Hadley to Amherst, and (2) act as licensing authority for the city of Northampton under G. L. c. 159A, § 3.
The decision of September 15, 1959, recites Peter Pan’s authority under local certificates to provide bus service be
The distance from Springfield to Amherst is about twenty-five miles; from Northampton to Amherst it is about seven miles.
Appended to the decision of September 15, 1959, was a purported order (1) that a license be granted to Peter Pan for a route in Northampton and (2) that a certificate of public convenience and necessity be granted Peter Pan for a route starting in Northampton and ending in Amherst, provided “ [t]hat when operating under authority of this certificate no passengers shall be picked up at or between Northampton and Amherst to be discharged at or between said municipalities. ’ ’
Fortier appealed from the September order by petition entered in this court sitting’ in Suffolk County on October 15,1959.
Fortier duly appealed from the October 13 order. See A. B. & C. Motor Transp. Co. Inc. v. Department of Pub. Util. 327 Mass. 550; S. C. 329 Mass. 719, 720. Compare Retail Stores Delivery, Inc. v. Department of Pub. Util. 339 Mass. 441, 450-451.
1. Neither the order entered by error on September 15, 1959, nor any action which may have been taken thereunder vitiated the order of October 13,1959.
The department has continuing power under Gr. L. c. 159A, § 7, to revise the provisions of a certificate. “The department, after notice and hearing, may revoke any such certificate for cause, and may, in like manner, revise any provisions thereof and any of the terms and conditions of such certificate or license.” There had been due notice and hearing in respect of the revision of certificate No. 3089 which was ordered on October 13, 1959. The order of September 15, so far as it purported to direct that a certificate issue, was void as was any certificate purportedly issued thereunder or any other action pursuant thereto.
It is not critical therefore whether the department’s action amounted to more than the correction of a clerical error — a failure to record what the tribunal intended. Such corrections may be made even in final decrees in equity. Hyde Park Sav. Bank v. Davankoskas, 298 Mass. 421, 424, and cases cited. “It is well settled that probate courts have the power to correct errors or mistakes in their own decrees . . ..” Jones v. Jones, 223 Mass. 540, 541. See Enterprises, Inc. v. Cardinale, 331 Mass. 244, 246. It is to be noted, however, that the department has recorded
It would have been futile, unless some statute, rule, or principle required it, to issue a notice of the proposal to expunge the void order and enter the order which the statute authorized and which Peter Pan’s petition and the findings of the department after due notice and hearing made appropriate and which the department intended. Nothing required this futility. It is unimportant whether the entire order of September 15 should have been rescinded, or, in view of the precise repetition of the order for the license in lieu of a local license, there was in substance only an amendment of the September order.
2. Fortier filed a “petition for appeal” in this court, which thereby entered in this court the statutory petition for appeal as filed with the department. Fortier by amendment only of the petition filed in this court assigned as error that “it does not appear that the provisions of Gr. L. c. 25, § 4, were complied with in that no report in writing was made to the commission for its decision thereon . . ..”
The statute does not in terms require that the report of the hearing officer be included in the record on appeal. We construe the words “official report of the proceedings,”
Notwithstanding G. L. c. 25, § 5, the State Administrative Procedure Act (G. L. c. 30A) is, to a degree, also applicable. See Newton v. Department of Pub. Util. 339 Mass. 535, 542. Section 14 of c. 30A provides in part, “Where a statutory form of judicial review or appeal is provided, other than by extraordinary writ, such statutory form shall govern in all respects, except as to standards for review. The standards for review shall be those set forth in paragraph (8) of this section, except so far as statutes provide for review by trial de nova. In so far as the statutory form of judicial review or appeal is silent as to procedures provided in this section, the provisions of this section shall govern such procedures. ... (8) The court may affirm the decision of the agency, or remand the matter for further proceedings before the agency; or the court may set aside or modify the decision, or compel any action unlawfully withheld or unreasonably delayed, if it determines that the substantial rights of any party may have been prejudiced because the agency decision is — (a) In violation of constitutional provisions; or (b) In excess of the statutory authority or jurisdiction of the agency; or (c) Based upon an error of law; or (d) Made upon unlawful procedure; or (e) Unsupported by substantial evidence; or (f) Unwarranted by facts found by the court on the record as submitted or as amplified under paragraph (7) of this section, in those instances where the court is constitutionally required to make independent findings of fact; or (g) Arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. The court shall make the foregoing determinations upon consideration of the entire record, or such portions of the record as may be cited by the parties. The court shall give due weight to the experience, technical
General Laws c. 25, § 5, contemplates that the hearing-officer and the commission will consider and weigh the evidence. Malden v. Metropolitan Transit Authy. 328 Mass. 491, 494. We assume that the officer and the commission, at least in some cases, follow a practice exemplified in the Malden case and which, as that case impliedly holds, meets the requirements of the statute for a report by the hearing-officer and a decision by the commission.
But if there was an omission of the prescribed step of a report, it is plain that no “substantial rights of any party . . . have been prejudiced” (G. L. c. 30A, § 14 [8]). No issue of fact depended upon the credibility of witnesses. Fortier does not contend that the decision is “ [u]nsupported by substantial evidence.” Whatever may be the result where such is the issue (see Norwood Ice Co. v. Milk Control Commn. 338 Mass. 435, 441, citing Universal Camera Corp. v. National Labor Relations Bd. 340 U. S. 474, 493), we discern no prejudice here. The assurance of c. 25, § 5, to the parties is a limited one in view of G. L. c. 30A, § 11 (7), discussed below. Chapter 25, § 5, assures that the decision will be by the commission, with the case so presented that the commission can consider and weigh the evidence. The transcript would serve so to present these
3. So much of the order of October 13, 1959, as constituted a local license was within the department’s power under G. L. c. 159A, § 3. Peter Pan was, within the description of § 3, “a person desiring to operate any motor vehicle for the purposes and in the manner aforesaid over a route covering at least twenty miles [who] holds a license therefor in the terminal municipalities and also a license in all but one of the intervening municipalities . . ..” There is nothing in Fortier’s contention, joined in by several
If Fortier’s construction were correct, Peter Pan on a trip starting in Northampton under certificate No. 3089 could proceed beyond Springfield only if the licenses underlying its Springfield to Boston certificate had been issued in contemplation of the use of local ways by buses coming from beyond Springfield. Also, if Peter Pan had obtained a local license from Northampton and had applied for and obtained a certificate for a new route from Northampton to Amherst, as, we take it, Fortier contends it should have done, it would have been able to Operate Boston to Northampton buses, or Springfield to Northampton buses, over the extended route only by reapplying in all municipalities traversed by the entire route with mention of the extended portion of the route so that each license would be a license “therefor.”
The duration of the local licenses is fixed by § 4. “Each
Section 3 authorized the department to issue the license for Northampton as Peter Pan’s application had “not been favorably acted upon within three months.after the filing thereof.” The only requirements of the section beyond those already mentioned are public hearing after notice to the licensing authority and that “operation under such a license shall be limited to through traffic without stopping in such municipality for taking on or, discharging passen-ers . . ..” The findings show the inaction of Northampton for over three months. The license contained an appropriate limitation under the statute. The outstanding license in Northampton for part of the necessary route does not make § 3 inoperative. Peter Pan had been unable to get a local license for all the route through Northampton. It therefore did not have the local license needed to enable it to operate the intercity route, and hence in Northampton it lacked the local “license therefor.”
4. The amendment in the order of October 13, 1959, was a valid exercise of the power of the department. Section 7 provides, “No person shall operate a motor vehicle under a
5. The appeal from the rescinded order of September 15, 1959, is dismissed as moot. No error is shown in the order of October 13, 1959, and it is accordingly affirmed.
Bo ordered.
“ If a person desiring to operate any motor vehicle for the purposes and in the manner aforesaid over a route covering at least twenty miles holds a license therefor in the terminal municipalities and also a license in all hut one of the intervening municipalities, or, in case seven or more municipalities intervene, in all hut one or two thereof, the department . . ., on petition of such person, shall act as the licensing authority in the one or two municipalities, as the ease may be, in which such person’s application for such an original license has not been favorably acted upon within three months after the filing thereof. ...”
General Laws e. 25, § 4, provides that such a matter as this “may be heard, examined and investigated by ... [a designated and assigned] employee . . . [who] shall make a report in writing relative to every such matter to the commission for its decision thereon. ’ ’
‘ ‘ The record on appeal ... [if a party so requests] shall include one copy ... of the official report of the proceedings and of the findings of fact of the commission. ’ ’
Good practice, we think, calls for a report by the hearing officer, designated as such and differentiated from the decision of the commission.
General Laws, e. 30A, § 11 (7), provides: “If a majority of the officials of the agency who are to render the final decision have neither heard nor read the evidence, such decision, if adverse to any party other than the agency, shall be made only after (a) a tentative or proposed decision is delivered or mailed to the parties containing a statement of reasons and including determination of each issue of fact or law necessary to the tentative or proposed decision; and (b) an opportunity is afforded each party adversely affected to file objections and to present argument, either orally or in writing as the agency may order, to a majority of the officials who are to render the final decision. The agency may by regulation provide that, unless parties make written request in advance for the tentative or proposed decision, the agency shall not be bound to comply with the procedures of this paragraph. ’'
The joint brief of the department and Peter Pan asserts that the department has made such a regulation and sets it out in an appendix with the date of its adoption, but we do not notice such action. Passanessi v. C. J. Maney Co. Inc. 340 Mass. 599, 604.