P733

[Klaudia Aricas]

Whereafter notice and hearing on a petition by a carrier of passengers by bus for amendment of its certificate of public convenience and necessity by extending the route covered thereby, the department of public utilities by error ordered issuance of an original certificate covering the extension which in the circumstances was beyond its authority and void, it had power subsequently, without further notice or hearing, to correct the error by substituting an order for the requested amendment of the carrier's existing certificate as the relief which it had been "the intention of the department to grant." [731-733]

In a proceeding under G. L. c. 25, Section 5, as amended through St. 1956, c. 190, for review of a decision of the department of public utilities, the report of a hearing officer is not required to be included in the record, but may properly be included therein. [733]

On the record of a proceeding under G. L. c. 25, Section 5; c. 30A, Section 14 (8), for review of a decision of the department of public utilities, no prejudice to the "substantial rights of any party" through "unlawful procedure" appeared even if the decision was made without a report of the hearing officer apart from the stenographic transcript. [734-736]

Where a carrier of passengers by bus holding licenses and a certificate of public convenience and necessity for a route from a city to and through a part of a second city wished to extend such route through another part of the second city and to a town more than twenty miles from the first city, and had secured licenses for the extended route in the terminal town and the one municipality between the second city and the terminal town, but had been unable for more than three months to secure favorable action in the second city on an application for a license for the extended route therein, the department of public utilities, upon proper petition by the carrier and after notice and hearing, had power under G. L. c. 159A, Section 3, to grant the desired license in the second city subject to the limitation set forth in Section 3, and under Section 7 to amend the carrier's

WHITTEMORE, J. Fortier's consolidated petitions for appeal pursuant to G. L. c. 25, Section 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public utilities of October 13, 1959, and, if that order is invalid, an order of September 15, 1959, which was in terms rescinded by the October order.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, Section 3. [Note p729-1]

Springfield and Northampton, Springfield and Boston, Springfield and Worcester, and, under authority from the Interstate Commerce Commission, Boston and points in Connecticut. It sets out that Peter Pan had lacked authority to provide the proposed service in a part of Northampton and in Hadley and Amherst, that it had obtained from Hadley and Amherst the necessary local licenses for the proposed extension of service (G. L. c. 159A, Section 1), that on October 2, 1957, Peter Pan had applied to the licensing authority of Northampton, and that the application had been "laid on the table" indefinitely. The decision also found that Fortier offered local service between Amherst and Northampton; that passengers traveling to or from points beyond Northampton were obliged to transfer in that city; that the use of connecting rail service involved substantial waiting time in Springfield and Northampton; and that traveling to and from Boston and Amherst by Peter Pan and Fortier's local service also involved waiting time of an hour or more in Northampton. The concluding findings were that the revenue loss to Fortier of the proposed extension of Peter Pan's through service would be slight and that the need existed for the through service.

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."

The "corrected order" of October 13, 1959, refers to the order of September 15 and recites that Peter Pan's petition was for amendment of existing certificate No. 3089, that it "was the intention of the department to grant this relief sought by the petitioner," and that the order by error did not so state. To correct the error and cause the order to conform to the intention of the department, the October 13 order purported to rescind the earlier order and substitute an order (1) that a license be granted to Peter Pan for the same route in Northampton described in the rescinded order and (2) that certificate No. 3089 issued January 21, 1955, be amended by adding the same route from Northampton to Amherst described in the rescinded order. The earlier proviso was included as well as the additional proviso that "no passengers shall be picked up or discharged in the city of Northampton between its present authority on Main Street, Route 9 and the Northampton-Hadley line," that is, the section of the new route licensed by the department rather than by Northampton.

The department has continuing power under G. L. c. 159A, Section 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.

The proposal with which the notice and hearing were concerned was not a proposal to issue a new certificate for the route from Northampton to Amherst; the department had no power under Section 3 to act as licensing authority for this route of less than twenty miles or for a terminal city. The entry of the void order had no effect on the continuing statutory power of the department to amend the certificate. This power depended primarily, not upon Peter Pan's petition, but on the department's continuing statutory supervision and control and on notice and hearing. There is no issue therefore whether a "case" begun by Peter Pan's petition had come to an irrevocable conclusion (as by a final decree in an equity suit) with concomitant end of the power of the tribunal to deal with it. The power in the department is analogous to that of an equity court in receivership proceedings where, under an appropriate reservation, jurisdiction continues and modifications may be made in an otherwise final decree. Compare (final decrees in equity) Thompson v. Goulding, 5 Allen 81, 82; Kingsley v. Fall River, 280 Mass. 395, 398; Commissioner of Corps. & Taxn. v. St. Botolph Club, Inc. 321 Mass. 269, 272-273 (under rules of Appellate Tax Board, its practice and procedure conformed to that "prevailing in equity causes"); Brooks v. National Shawmut Bank, 323 Mass. 677, 683-684; Enterprises, Inc. v. Cardinale, 331 Mass. 244, 246-247; Doris v. State Realty Co. of Boston, Inc. 333 Mass. 425, 426. See, for revival of a suit in equity after entry of "Bill dismissed," Donovan v. Danielson, 263 Mass. 419, 424.

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 G. L. c. 25, Section 4, were complied with in that no report in writing was made to the commission for its decision thereon . . .." [Note p733-1] A motion having been made by Fortier to the single justice to introduce evidence in respect of this issue, the parties stipulated in open court that "the hearing officer held a hearing and the department thereafter received a transcript of the testimony and, except as aforesaid, there was no report by the hearing officer."

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," [Note p733-2] first inserted in Section 5 by St. 1953, c. 575, Section 1, to refer to the stenographic transcript. Any report made would nevertheless be a proper part of the record. Norwood Ice Co. v. Milk Control Commn. 338 Mass. 435, 441-442.

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