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SJC-11455

   NAUTICAL TOURS, INC.   vs.   DEPARTMENT OF PUBLIC UTILITIES.


                          August 20, 2014.

Department of Public Utilities. License. Public Utilities,
     Sight-seeing vehicle. Carrier, Sight-seeing vehicle.
     Motor Vehicle, Sight-seeing vehicle.


     Nautical Tours, Inc. (Nautical Tours), appeals from a
judgment of a single justice of this court affirming a decision
of the Department of Public Utilities (department) that it did
not have jurisdiction to issue the type of license needed by
Nautical Tours to operate its business in the city of Boston.
Nautical Tours seeks to operate amphibious motor vehicles for
sightseeing and charter purposes on the streets of Cambridge and
Boston and the waters of the Charles River and Boston Harbor.
The parties disagree about the appropriate license needed to
operate in Boston. Nautical Tours contends that it must obtain
a municipal street license pursuant to G. L. c. 159A, § 1. The
department ruled that Nautical Tours was required to obtain a
sightseeing license, which the Boston police commissioner has
the exclusive authority to issue, pursuant to St. 1931, c. 399.
We agree with the department that the Legislature established
two different licensing schemes. Although a municipal street
license is needed to carry passengers for hire on the public
ways of cities and towns in the Commonwealth under G. L.
c. 159A, § 1, a sightseeing automobile operating in the city of
Boston must obtain a separate sightseeing license under St.
1931, c. 399. Because we further agree with the department that
it did not have jurisdiction to issue Nautical Tours a municipal
street license to operate its amphibious motor vehicles in
Boston, we affirm.

     Background. In 2010, Nautical Tours filed a petition with
the department concerning its proposed operation of amphibious
                                                                   2


motor vehicles over certain public ways in Boston. Nautical
Tours asked the department (1) to exercise its licensing
authority to issue a municipal street license under G. L.
c. 159A, § 1; and (2) to amend the certificate of public
convenience and necessity that it had issued in a proceeding in
2007, under G. L. c. 159A, § 7.

     In its 2007 order, the department concluded that Nautical
Tours had not met its burden of demonstrating that it was able
to operate its proposed plan, because it could not demonstrate
that it had secured adequate financing. See Deacon Transp.,
Inc. v. Department of Pub. Utils., 388 Mass. 390, 394 (1983).
To facilitate Nautical Tour's ability to obtain financing, the
department, among other things, issued to Nautical Tours a
conditional certificate of public convenience and necessity in
accordance with G. L. c. 159A, § 7, which required Nautical
Tours either to obtain from the Boston police commissioner a
sightseeing license in accordance with St. 1931, c. 399, or to
obtain a waiver of the sightseeing license and to obtain a
municipal street license under G. L. c. 159A, § 1. Nautical
Tours did not appeal from that order. 1

     Following the 2007 order, Nautical Tours did not apply to
the police commissioner for a sightseeing license. 2 Instead, in
2010, it applied to the Boston city council for a municipal
street license. In its application, Nautical Tours described
that it would be operating a "sightseeing tour." Within the
sixty days allowed under G. L. c. 159A, § 1, the council did not
respond or act favorably on the application. 3



     1
       In 2010, Nautical Tours, Inc. (Nautical Tours), asked the
Department of Public Utilities (department) to amend its
conditional certificate of public convenience and necessity for
Boston by adding specific routes, which it acknowledges had been
approved in the 2007 order. Nautical Tours did not appeal that
order and it is not a subject of this appeal.
     2
       Before the department, Nautical Tours maintained that it
unsuccessfully sought a waiver of the sightseeing license
requirement from the Boston police department.
     3
       The Boston city council is not a party to this appeal, and
there is nothing in the record explaining the city council's
position.
                                                                   3


     In 2010, relying on G. L. c. 159A, § 1, Nautical Tours
petitioned the department. 4 The department dismissed the
petition. Recognizing that the Legislature had given the Boston
police commissioner "exclusive authority" to license sightseeing
automobiles in the city of Boston under St. 1931, c. 399, it
determined that it did not have jurisdiction to issue a
municipal street license to Nautical Tours for its operation
under § 1, and therefore dismissed Nautical Tour's petition.

     Pursuant to G. L. c. 25, § 5, Nautical Tours appealed to
the county court from the department's order of dismissal. In
2013, the single justice issued a detailed memorandum of
decision and ordered the entry of judgment affirming the
department's order. This appeal followed.

     Discussion. Based on our review of the legislative
history, it is clear that a municipal street license is needed
to carry passengers for hire on the public ways of cities and
towns in the Commonwealth. G. L. c. 159A, § 1. 5 Where a local
licensing authority does not act favorably on an application for
a municipal street license, the department, on an appeal by the
applicant, can exercise its authority to act on the application.
Id. In establishing this statutory scheme, however, the
Legislature, through a special act, required a sightseeing
automobile in the city of Boston to have a separate sightseeing
license. St. 1931, c. 399. 6 Given the nature of sightseeing

     4
       In its petition, Nautical Tours had asked the department
to issue a municipal street license. It also included an
application for a municipal street license that described the
proposed services as "land and water sightseeing tours."
Because, as discussed infra, Nautical Tours could not operate a
sightseeing vehicle in the city of Boston without a sightseeing
license, for all practical purposes Nautical Tour was asking the
department to issue a sightseeing license.
     5
       General Laws c. 159A, § 1, grants cities and towns
authority in the first instance to license "any motor vehicle
upon any public way . . . for the carriage of passengers for
hire." G. L. c. 159A, § 1. When "any application for a license
. . . is not favorably acted upon within a period of sixty days
after the filing thereof, the applicant may appeal to the
department." Id.
     6
       Under St. 1931, c. 399, § 3, the Boston police
commissioner has "exclusive authority to license in said city
                                                                   4


vehicles, here amphibious motor vehicles, and the public safety
concerns associated with their operation on the sometimes
narrow, crooked, and congested streets of Boston, the
sightseeing licensing requirement is reasonable. See
Commonwealth v. Boston & Maine Transp. Co., 282 Mass. 345, 350-
351 (1933). We also find support for that conclusion in the
lengthy legislative history concerning municipal street licenses
under G. L. c. 159A, § 1, and Boston sightseeing licenses under
St. 1931, c. 399.

     The Legislature first gave the Boston police commissioner
exclusive authority to license sightseeing automobiles in 1913.
See St. 1913, c. 592. In 1926, the Legislature granted to the
department, in certain circumstances, licensing authority over
municipal street licenses. See St. 1926, c. 392. In 1931, the
Legislature reorganized the laws relating to transportation for
hire by motor vehicles and, as part of that process, enacted
G. L. c. 159A. St. 1931, c. 408. The new statute essentially
retained the same language as the previous act, St. 1926,
c. 392, concerning the department's licensing authority. G. L.
c. 159A, § 3. On the same day that it passed that legislation,
the Legislature also repealed the 1913 act establishing the
police commissioner's exclusive authority to issue sightseeing
licenses in the city of Boston and simultaneously restored that
authority in the special act that is at issue in this appeal,
St. 1931, c. 399, § 8.

     It was not until 1975 that the Legislature amended the
General Laws to include the language of G. L. c. 159A, § 1, par.
2, that is also at issue here. St. 1975, c. 740. With this
amendment, the department's licensing authority was expanded to
include any application for a license, not just applications in
the limited circumstances previously authorized by St. 1926,
c. 392. The current version of the statute provides: "If any
application for a license . . . is not favorably acted upon [by
the local licensing authority] within a period of sixty days
after the filing thereof, the applicant may appeal to the
department." G. L. c. 159A, § 1, par. 2. However, in 1975, the
Legislature did not repeal the Boston police commissioner's
exclusive licensing authority with respect to sightseeing
operations in Boston, which had been previously upheld by this


sight-seeing automobiles," which the statute defines as any
automobile "used for the carrying for a consideration of persons
for sight-seeing purposes in or from the city of Boston." St.
1931, c. 399, § 1.
                                                                   5


court. Commonwealth v. Boston & Maine Transp. Co., supra at
349, and cases cited.

     It is axiomatic that "the provisions of a special act
generally prevail over conflicting provisions of a subsequently
enacted general law, absent a clear legislative intent to the
contrary." Dartmouth v. Greater New Bedford Regional Vocational
Tech. High Sch. Dist., 461 Mass. 366, 374 (2012), quoting Boston
Teachers Union, Local 66 v. Boston, 382 Mass. 553, 564 (1981).
We think that this principle applies in the circumstances of the
present case. Since 1913, the Legislature has consistently
maintained the Boston police commissioner's exclusive licensing
authority over sightseeing vehicles in the city of Boston.
Since 1926, although the Legislature has continued to expand the
department's licensing authority, it has not repealed the police
commissioner's exclusive authority when it comes to licensing
sightseeing operations in Boston. Thus, we find support in the
legislative history for the department's position that the
special act granting the Boston police commissioner exclusive
licensing authority for sightseeing automobiles, St. 1931,
c. 399, prevails over the general law. Moreover, the
department is entitled to deference in interpreting a general
law that it is charged with implementing and enforcing, here
G. L. c. 159A. Commerce Ins. Co. v. Commissioner of Ins., 447
Mass. 478, 481 (2006).

     For all of these reasons, we agree with the department's
position that Nautical Tours needed to obtain a sightseeing
license pursuant to St. 1931, c. 399, over which the Boston
police commissioner has exclusive authority. The department did
not have any licensing authority in this regard pursuant to
G. L. c. 159A, § 1. We recognize that at different times in
this case, and in at least one other case, the department
appears to have taken inconsistent positions on its jurisdiction
to issue municipal street licenses for Boston sightseeing
automobiles. This, however, cannot derail our conclusion that
the department is without jurisdiction here. Litton Business
Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981)
(recognizing that subject matter jurisdiction cannot be
conferred by prior action).

     Nautical Tours is not without a remedy. Under rule 404 of
the Boston police department's rules and procedures, there is an
established mechanism by which Nautical Tours can apply for a
                                                                   6


license for a sightseeing automobile. 7 Boston Police Department
Rules and Procedures on Sight-Seeing Automobiles, Rule 404, § 2
(Applications for Sight-Seeing Licenses) (January 5, 2010). The
rules further provide that "[a]ny person aggrieved by a final
decision of the Police Commissioner under this section may seek
relief in any court of competent jurisdiction as provided by the
laws of the Commonwealth." Id. at § 11.4.4.7. Where, as here,
there is no right of appeal expressly provided in St. 1931, c.
399, a party aggrieved by the decision can seek judicial review
in the nature of certiorari. See G. L. c. 249, § 4. See also
Bermant v. Selectmen of Belchertown, 425 Mass. 400, 403 (1997),
citing Johnson Prods., Inc. v. City Council of Medford, 353
Mass. 540, 545, cert. denied, 392 U.S. 296 (1968).

     Conclusion. For the reasons stated, we affirm the judgment
of the single justice affirming the department's order that it
did not have jurisdiction.

                                   Judgment affirmed.


     George J. West for Nautical Tours, Inc.
     Daniel J. Hammond, Assistant Attorney General, for
Department of Public Utilities.




     7
       We find merit in the department's argument that, by
promulgating this rule, the Boston police commissioner appears
to have remedied any past failure to exercise exclusive
jurisdiction over sightseeing licenses.
