Number 11 September 4, 1973

Number 11 September 4, 1973 Honorable Robert L. Meade Chairman, Department of Public Utilities Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Mr. Chairman: You have requested my opinion as to the alternatives available to re- cover possible overcharges collected since 1954 by Gray Line, Inc., Rawding Tours, Royal Blue Bus Line, and Pilgrim Sightseeing Com- pany, Inc. (hereafter "Gray Line"). You have informed me that Gray Line last filed a sightseeing tariff schedule with the Department of Pub- lic Utilities on March 1, 1954 and since then has raised its rates several times without filing any new tariffs. Gray Line has now filed with your department new tariffs concerning sightseeing rates and has asked your department to waive the usual notice requirement for allowing rate in- creases to become effective. You have specifically inquired whether there is anything the Department of the Attorney General or the De- partment of Public Utilities can or should do about the overcharges and whether any statute of limitations might pose a problem. Finally, you note that uncertainty exists as to whether Gray Line's rate changes from 1954-1973, although made in violation of departmental rules and regul- tions, were otherwise reasonable. Section 5 of c. 399 of the Massachusetts Acts and Resolves of 1931, as amended by c. 93 of the Massachusetts Acts and Resolves of 1933, delineates the role of the Department of Public Utilities in regulating au- tomobile sightseeing services: "No person or corporation shall offer or furnish service by sight-seeing automobiles in or from the city of Boston unless said person or corporation has obtained from the department of public utilities a certificate declaring that public conven- ience and necessity require such operation. Said department may, after public hearing, issue or refuse to issue such a cer- tificate and may attach to the exercise of the privilege conferred by said certificate such terms and conditions as to operation and fares as the said department may deem that public convenience and necessity require. Said department may, after notice and hearing, suspend or revoke any such certificate for cause or alter or amend any terms or conditions attached to the exercise of the privilege conferred thereby. Said department may make suitable and reasonable rules, or- ders and regulations governing the operation and fares of sightseeing automobiles carrying persons in or from the city of Boston, and may revise, alter, amend and annul the same P.D. 12 67 Based upon my reading of this statute, the applicable cases, and the facts you have furnished, 1 am of the opinion that the said statute em- powers your department to suspend or revoke the certificate of public convenience and necessity under which Gray Line operates. Commonwealth v. Reardon, 282 Mass. 345. Gray Line's failure to file new tariffs for its rate increases would constitute cause within the mean- ing of section five's suspension or revocation clause. Should less Draconian measures be deemed appropriate, said § 5 em- powers your department to attach such terms and conditions as to oper- ation and fares as public convenience and necessity are deemed to re- quire. Implicit in this power is the requirement that the terms and condi- tions imposed be reasonable and in furtherance of the public conveni- ence and necessity. Allowing Gray Line to continue its operation as a sightseeing canier might well be made contingent upon its seeking to rectify the situation created by its having operated in derogation of statutory and regulatory commands for a prolonged period. The exact amount of such terms and conditions not being before me, I will not speculate as to their propriety. Suffice it to say that whatever terms and conditions are imposed must be reasonable and in furtherance of the public convenience and necessity. Your department's rule ordering that all bus lines furnishing sight- seeing service in and from Boston file rate tariffs with the department appears to comport with the statutory requirement that rules, orders, and regulations governing operation and fares be "suitable" and "reasonable." Even were the various increases in Gray Line's rates from 1954-1973 reasonable in light of costs to the carrier, the rule requir- ing advance filing of increased tariffs is a suitable and reasonable method of governing the operation and fares of sightseeing automobiles. Requir- ing advance filing of increased tariffs protects sightseers from over- charges and avoids precisely the post facto proof of what is a "reason- able rate" that is presented here. Proving today what was a reasonable rate in 1955 or 1957 will be difficult, time consuming and subject to dis- tortion; moreover, the sightseers who may have been overcharged years ago will not likely be located nor able to prove they were users of Gray Line's service and thus entitled to a rebate. No Federal constitutional obstacles of interstate commerce obtain in this situation. See Commonwealth v. Reardon, supra; Commonwealth v. New England Transportation Company. 282 Mass. 429. In addition to the revocation and suspension powers and the power to impose terms and conditions outlined above, § 6 of c. 399 of said Acts of 1931 provides penalties for violations. Violators "shall be punished by a fine of not more than fifty dollars or by imprisonment in the house of correction for not more than one month, or both." The language of § 6 is mandatory, not precatory. Moreover, that section gives the Supreme Judicial Court and Superior Court equity jurisdiction to restrain viola- tions of any rule, order or regulation of your department upon petition by your department or any interested party. Finally, § 6 provides for a maximum $25 fine against anyone who operates any sightseeing au- 68 P.D. 12 tomobile as a driver in violation of any rule, order or regulation of your department. Commonwealth v. Reardon, supra. General Laws, c. 159A, §11 A specifically excludes sightseeing au- tomobiles licensed under c. 399 of the Acts of 1931 from the definition of the term ''charter service" and "special service" as defined in that sec- tion; hence the provisions of c. 159A, §15 do not govern here. See Op. Atty. Gen., Dec. 31, 1947, p. 43. In Metropolitan District Commission v. Department of Public Utilities, 352 Mass. 18, the Supreme Judicial Court held that the De- partment of Public Utilities had no power to award reparations to cus- tomers for overcharges collected by an electric company: "The depart- ment was correct in ruling that it had no power to award reparations. Such a power must be expressly conferred by statute, as it was in the case of carriers ( G. L. c. 159, § 14)." 352 Mass. at 26. The provisions of c. 159, § 14 being inapplicable to the instant facts, and no other ex- press statutory authorization obtaining, your department has no power to award reparations to customers for overcharges. Whether Gray Line's rates constituted "unfair methods of competition.' or "unfair or deceptive acts and practices" within the meaning of G. L. c. 93A, § 2(a) cannot be determined on the facts now before me. Your final inquiry asks whether and to what extent a statute of limita- tions would apply here. General Laws, c. 260, § 5 states: "Actions for penalties or forfeitures under penal statutes, if brought by a person to whom the penalty or forfeiture is given in whole or in part, shall be commenced only within one year next after the offence is committed. But if the pen- alty of forfeiture is given in whole or in part to the common- wealth, an action therefor by or in behalf of the common- wealth may be commenced only within two years next after the offence is committed." Section 6 of c. 399 of said Acts is a penal statute in which the penalty is given to the Commonwealth. A two-year statute of limitations is ap- plicable. Moreover, based upon the facts you have provided, I am of the opinion that separate causes of action accrued at each illegal change in the tariff charged by Gray Line between 1954 and 1973. Chapter 260, § 5 would preclude recovering at this time for past violations not occurring within the last two years unless a tolling provision were operative. Chapter 260, § 12 provides that fraudulent concealment tolls the statute, but I am unable to ascertain from the facts whether any fraudulent con- cealment is involved in this case. Mere non-feasance would not be enough; positive acts done with intent to deceive are required. Connelly V. Bartlett, 286 Mass. 311; Maloney v. Brackett, 275 Mass. 479. The statute of limitations in c. 260, § 5 has no effect upon your powers to revoke or suspend or to impose terms and conditions under § 5 of c. 399 of the Acts of 1931. That section admits of no limitation and empowers your department to take action at any time. In conclusion, I am of the opinion, subject to the caveats expressed above, that your department may suspend or revoke Gray Line's certifi- cate or impose such terms and conditions relative to operation and fares P.D. 12 69 as the public convenience and necessity require. However, your de- partment may not award reparations to consumers for past overcharges, although these consumers may seek reparations on their own behalf. Finally, the Commonwealth is authorized to seek enforcement of the penalties provided for violation subject to the applicable limitations sta- tute. Very truly yours, ROBERT H. QUINN Attorn e v General